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MahmoudAly

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LexAbSumm

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[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicants were born in 1921 and 1953 respectively and live in Munich. The first applicant is the second applicant’s mother.", "9. The applicants own real property in the south-eastern part of the Greek island of Tinos, where they spend part of their time. The first applicant is the co -owner of a house and a plot of land on the Ayia Kiriaki-Apokofto peninsula, which is adjacent to a swamp by the coast of Ayios Yiannis.", "A. Proceedings before the Supreme Administrative Court concerning the redrawing of the boundaries of various settlements in south-east Tinos", "10. On 4 December 1985 the prefect ( νομάρχης ) of Cyclades redrew the boundaries of the settlement ( οικισμός ) of Ayios Yiannis in the municipality of Dio Horia and of the settlements of Ayia Varvara, Ayios Sostis and Lautaris in the municipality of Triandaru (decision no. 9468/1985). On 6 May 1988 the prefect again redrew the boundaries of the settlements of Ayios Yiannis and Ayios Sostis (decision no. 2400/1988).", "11. On 18 March 1993 the town-planning authority of Syros issued building permit no. 620 on the basis of the prefect’s decision no. 9468/1985. Another permit (no. 298) had been issued on the same basis by the same authority in 1992.", "12. On 21 July 1993 the applicants and the Greek Society for the Protection of the Environment and Cultural Heritage lodged an application for judicial review of the prefect’s decisions nos. 9468/1985 and 2400/1988 and of building permit no. 620/1993 with the Supreme Administrative Court. On the same date a second application was lodged by the same persons for judicial review of the prefect’s two decisions and of building permit no. 298/1992. The basic argument of the applicants before the Supreme Administrative Court was that the prefect’s decisions, and consequently the building permits, were illegal because in the area concerned there was a swamp and Article 24 of the Greek Constitution, which protects the environment, provided that no settlement should be built in such a place.", "13. On 10 July 1995 the Supreme Administrative Court considered that the applicants had locus standi because they owned property in the area concerned. The court held that it could not review the prefect’s decision no. 9468/1985 directly because the application had not been lodged within the time-limit prescribed by law. However, it could review the two building permits issued on the basis of that decision and, in the context of this review, the court was obliged to examine the constitutionality of the prefect’s decision. The decision was found to have violated Article 24 of the Constitution, which protects the environment, because the redrawing of the boundaries of the settlements put in jeopardy the swamp in Ayios Yiannis, an important natural habitat for various protected species (such as birds, fishes and sea-turtles). It followed that the building permits were also unlawful and had to be quashed. Moreover, the court quashed the prefect’s decision no. 2400/1988 because it had not been published in the Official Gazette in the manner prescribed by law (decisions nos. 3955/1995 and 3956/1995).", "14. In 1996 the prefect issued two decisions (nos. DP2315 /1996 and DP2316 /1996) which excluded the contested buildings from demolition.", "15. On 21 April 1997 a special committee of the Supreme Administrative Court found that the authorities had failed to comply with the above decisions. They had not demolished the two buildings constructed on the basis of permits nos. 620/1993 and 298/1992 and had continued issuing building permits in respect of the area that had been included in the settlements further to the unlawful redrawing of the boundaries (minutes no. 6/1997).", "B. Civil proceedings against M.", "16. On 31 January 1991 the first applicant and others instituted civil proceedings against a neighbour, M., in the Syros Court of First Instance ( Πολυμελές Πρωτοδικείο ). They claimed that he had unlawfully taken over part of their land in Ayios Yiannis. On 14 February 1992 the court found in favour of the plaintiffs.", "17. On 30 March 1992 M. entered a caveat against this judgment ( ανακοπή ερημοδικίας ), which had been given in his absence. His application was rejected on 23 November 1992 (decision no. 138/1992). On 28 January 1993 M. appealed against that decision. The Aegean Court of Appeal ( Εφετείο ) reversed decision no. 138/1992 and sent the case back to the first-instance court (decision no. 120/1993).", "18. A hearing took place on 14 January 1994. In a preliminary decision of 31 March 1994, the first-instance court ordered investigative measures. Witnesses were heard on 13 April 1995, 4 July 1995, 10 October 1995, 12 December 1995, 12 February 1996 and 2 April 1996.", "19. Following an application by the first applicant on 15 March 1998, a hearing was set down for 11 December 1998. The hearing was finally held on 28 May 1999. On 21 June 1999 the first-instance court found in favour of the first applicant (decision no. 98ΤΠ /1999).", "20. On 7 December 1999 M. appealed against that decision. The proceedings are currently pending before the Aegean Court of Appeal. The parties have not yet applied for a hearing to be fixed.", "C. Threatened demolition of the applicants’ house", "21. On 23 June 1993 the applicants received a notice to the effect that their house in Ayia Kiriaki-Apokofto had been built without authorisation and should be demolished. The applicants appealed to the competent administrative board. Their appeal was rejected on 28 September 1994.", "22. On 6 October 1994 they applied to the Supreme Administrative Court for judicial review of the decision of the administrative board. On a request by the applicants, the Supreme Administrative Court decided to suspend the demolition of the applicants’ house (decision no. 790/1994).", "23. At first, the hearing was set down for 28 November 1995 but it was repeatedly postponed.", "24. In 1999 a new law (no. 2721/1999) changed the rules of jurisdiction and the case was referred to the Piraeus Court of Appeal, which heard the case on 27 June 2000. The proceedings are still pending." ]

[ "II. RELEVANT DOMESTIC LAW", "25. Article 108 of the Code of Civil Procedure reads as follows:", "“The parties shall be responsible for taking procedural steps on their own initiative unless the law provides otherwise”.", "26. Sections 15 and 16 of Law no. 1337/1983 provide that the demolition of a building constructed on the basis of a building permit which has subsequently been revoked for any reason is to be suspended if the owner of the building acted in good faith.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION DUE TO THE NON-COMPLIANCE WITH THE JUDGMENTS PRONOUNCED", "27. The applicants complained about the failure of the authorities to comply with decisions nos. 3955/1995 and 3956/1995 of the Supreme Administrative Court. They relied on Article 6 § 1 of the Convention which, insofar as relevant, provides:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair... hearing within a reasonable time by [a] ... tribunal...”", "28. The Government argued that the town-planning authority had taken all the necessary measures to comply with the decisions of the Supreme Administrative Court. In particular, it no longer applied the prefect’s decision no. 2400/1988 and had carried out a land-planning study for the area. It was true that the prefect had issued two decisions (nos. DP2315 /1996 and DP2316 /1996) which excluded the contested buildings from demolition; in this connection the Government submitted that the demolition of the buildings in question was not the only possible way to comply with the decisions of the Supreme Administrative Court. On the contrary, it was admitted both by the relevant legislation and by the general principles of law that the demolition of a building was an extreme measure and had to be avoided, especially when the owner of the building had acted in good faith and had no reason to believe that the building permit on the basis of which construction had taken place would subsequently be annulled. Therefore, the Government concluded that the authorities had complied in substance with decisions nos. 3955/1995 and 3956/1995 of the Supreme Administrative Court.", "29. The applicants contested the Government’s allegation that the national authorities had complied in substance with the above-mentioned decisions. They were surprised that the Greek Government regarded the exclusion of the contested buildings from demolition as compliance with the annulment of the building permits. They claimed that the only legal consequence of the annulment of the building permits was the demolition of the buildings constructed on the basis of these permits and noted that the Greek authorities had failed to demolish them.", "30. The Court reiterates that, according to its established case-law, Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court; in this way it embodies the “right to a court”, of which the right of access, namely the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6. Where administrative authorities refuse or fail to comply, or even delay doing so, the guarantees under Article 6 enjoyed by a litigant during the judicial phase of the proceedings are rendered devoid of purpose (see Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997–II, pp. 510-11, §§ 40-41).", "31. In the present case the Court notes that a special committee of the Supreme Administrative Court found that the authorities had failed to comply with its decisions nos. 3955/1995 and 3956/1995. They had not demolished the two buildings constructed on the basis of permits nos. 620/1993 and 298/1992 and had continued issuing building permits in respect of the area that had been included in the settlements further to the unlawful redrawing of the boundaries.", "32. Thus, by refraining for more than seven years from taking the necessary measures to comply with two final, enforceable judicial decisions in the present case the Greek authorities deprived the provisions of Article 6 § 1 of the Convention of all useful effect.", "There has accordingly been a breach of that Article.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE LENGTH OF THE PROCEEDINGS", "33. The applicants complained that the length of the proceedings instituted by the first applicant against M. and the proceedings concerning the demolition of their house had exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention.", "34. In the Government’s submission, the proceedings against M. had been protracted by the conduct of the parties. In particular, the Government noted that, in civil cases, it was for the parties to take the initiative to ensure that the proceedings progressed; they were, inter alia, responsible for obtaining hearing dates. The Government claimed that the first applicant had not pursued her suit diligently.", "35. The Government further argued that the applicants had failed to speed up the proceedings in connection with the threatened demolition of their house and had not asked for an expeditious hearing. In any event, they pointed out that the Supreme Administrative Court had decided to suspend the demolition of their house. Therefore, even if the proceedings were still pending, the applicants had rapidly enjoyed judicial protection of their rights.", "36. The first applicant submitted in reply that, even if the parties were partly responsible for the delays, as the Government suggested, her case against M. was a routine property dispute concerning a small piece of land on a Greek island. There was no reason why it should have taken more than eight years for the first-instance court to reach a final decision.", "37. As regards the proceedings in connection with the threatened demolition of their house, the applicants submitted that the problem did not stem from the scheduling of the hearings but from the successive adjournments, and that the failure to make an extraordinary request for expeditious scheduling could not explain the length of the proceedings. They further asserted that the suspension of the demolition was an interim measure and, as such, was far from constituting a resolution of the dispute. Moreover, it did not remedy the adverse consequences stemming from the threatened demolition.", "A. Periods to be taken into consideration", "38. The Court notes that the proceedings against M. started on 31 January 1991 and are still pending before the Aegean Court of Appeal. They have therefore lasted more than twelve years to date for two levels of jurisdiction.", "39. As regards the proceedings in connection with the threatened demolition of the applicants’ house, the Court notes that they started on 6 October 1994 and are still pending before the Piraeus Court of Appeal. They have therefore lasted more than eight years and three months to date for one level of jurisdiction.", "B. Reasonableness of the length of the proceedings", "40. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties, the conduct of the authorities dealing with the case and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 ‑ VII).", "41. The Court notes that the cases in question were not particularly complex and considers that the applicants could not be deemed responsible for the delays encountered in the handling of their cases. It points out that the Government did not supply any explanation for the overall duration of the proceedings, which seems manifestly excessive. Consequently, it appears to the Court that the length of the proceedings resulted mainly from the conduct of the relevant authorities.", "42. The Court reiterates that Article 6 § 1 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time ( Frydlender v. France, op. cit., § 45).", "43. In the light of the criteria laid down in its case-law and having regard to all the circumstances of the case, the Court concludes that the length of the proceedings complained of was excessive and failed to satisfy the “reasonable time” requirement.", "There has accordingly been a violation of Article 6 § 1 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "44. The applicants contended that urban development in the south ‑ eastern part of Tinos had led to the destruction of their physical environment and had affected their life. They relied on Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Arguments of the parties", "1. The applicants", "45. The applicants asserted that, regardless of the danger to one’s health, the deterioration of the environment fell to be examined under Article 8 of the Convention where it adversely affected one’s life. They agreed that Article 8 was not violated every time environmental deterioration occurred. They understood the importance of urban development and the economic interests associated with it. They also understood that States had discretion in making decisions about urban planning. On the other hand, the applicants had no doubt that any State interference with the environment should strike a fair balance between the competing interests of the individuals and the community as a whole. In the present case the issue of the fair balance was rather simple. In its decisions nos. 3955/1995 and 3956/1995 the Supreme Administrative Court had itself tipped the balance in favour of the swamp and against urban development. Consequently, the Greek authorities were obliged to abide by their own choice. However, in failing to comply with the above-mentioned decisions, they had allowed the destruction of the swamp.", "46. In this respect, the applicants pointed out that the area had lost all of its scenic beauty and had changed profoundly in character from a natural habitat for wildlife to a tourist development. Part of the swamp had been reclaimed so as to create, in addition to the buildings, a car park and a road. There were noises and lights on all night and a great deal of environmental pollution from the activities of the firms in the vicinity. The applicants argued that they were under no obligation to tolerate this deterioration since it was the direct result of the State’s illegal activity.", "47. The applicants concluded that the State authorities had not only failed to fulfil their positive duty to take reasonable and appropriate measures to secure their rights under Article 8, but had also, by their own activity, illegally affected the enjoyment of these rights.", "2. The Government", "48. The Government submitted that the applicants’ complaint mainly concerned the protection of the swamp. That and not the protection of their home or their private life was the reason why they had applied to the Supreme Administrative Court. There could therefore be no issue under Article 8, all the more so as the competent authorities had taken all appropriate measures to protect the environment in the area concerned.", "49. Even assuming that Article 8 applied in the present case, the Government stressed that the applicants’ house was the only one at the upper end of the peninsula and that the other buildings of the settlement were located a certain distance away from it. Thus, there could not possibly be any serious disturbance from the applicants’ neighbours. In this connection, the Government expressed the view that what the applicants were really claiming was the right to be the only ones to possess a house in the area. That was not feasible. In any event, the Government considered that any nuisance that the applicants might have suffered on account of the construction of the new buildings and the general organisation of the social character of the region had to be tolerated as an inevitable and temporary consequence of the urban way of life.", "50. The Government concluded that, had there been any interference with the applicants’ rights guaranteed by paragraph 1 of Article 8, it was clearly justified under paragraph 2.", "B. The Court’s assessment", "51. The Court notes that the applicants’ complaint under Article 8 of the Convention may be regarded as comprising two distinct limbs. First, they complained that urban development had destroyed the swamp which was adjacent to their property and that the area where their home was had lost all of its scenic beauty. Second, they complained about the environmental pollution caused by the noises and night-lights emanating from the activities of the firms operating in the area.", "52. With regard to the first limb of the applicants’ complaint, the Court notes that according to its established case-law, severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health (see Lopez Ostra v. Spain, judgment of 9 December 1994, Series A no. 303-C, p. 54, § 51). Yet the crucial element which must be present in determining whether, in the circumstances of a case, environmental pollution has adversely affected one of the rights safeguarded by paragraph 1 of Article 8 is the existence of a harmful effect on a person’s private or family sphere and not simply the general deterioration of the environment. Neither Article 8 nor any of the other Articles of the Convention are specifically designed to provide general protection of the environment as such; to that effect, other international instruments and domestic legislation are more pertinent in dealing with this particular aspect.", "53. In the present case, even assuming that the environment has been severely damaged by the urban development of the area, the applicants have not brought forward any convincing arguments showing that the alleged damage to the birds and other protected species living in the swamp was of such a nature as to directly affect their own rights under Article 8 § 1 of the Convention. It might have been otherwise if, for instance, the environmental deterioration complained of had consisted in the destruction of a forest area in the vicinity of the applicants’ house, a situation which could have affected more directly the applicants’ own well-being. To conclude, the Court cannot accept that the interference with the conditions of animal life in the swamp constitutes an attack on the private or family life of the applicants.", "54. As regards the second limb of the complaint, the Court is of the opinion that the disturbances coming from the applicants’ neighbourhood as a result of the urban development of the area (noises, night-lights, etc.) have not reached a sufficient degree of seriousness to be taken into account for the purposes of Article 8.", "55. Having regard to the foregoing, the Court considers that there is no lack of respect for the applicants’ private and family life.", "There has accordingly been no violation of Article 8.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "56. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "57. The applicants sought compensation for non-pecuniary damage. The first applicant claimed 15,000,000 Greek drachmas (GRD) (44,020.54 euros (EUR)) and the second applicant claimed GRD 10,000,000 (EUR 29,347.03).", "58. The Government considered that these claims were exaggerated. They maintained that any just satisfaction that might be awarded to the applicants should not exceed EUR 7,337.", "59. The Court considers that the applicants must have suffered feelings of frustration, uncertainty and anxiety as a result of the violations of their rights under the Convention. Making an assessment on an equitable basis, it decides to award the first applicant EUR 20,000 and the second applicant EUR 10,000 for the non-pecuniary damage sustained.", "B. Costs and expenses", "60. The applicants claimed GRD 7,514,572 (EUR 22,053.04) for the proceedings before the domestic authorities. They broke that sum down as follows:", "(i) GRD 73,080 for the proceedings concerning the redrawing of the boundaries of the swamp;", "( ii ) GRD 900,000 for the proceedings before the Supreme Administrative Court concerning the annulment of the building permits;", "( iii ) GRD 1,436,009 for the proceedings concerning the execution of judgments nos. 3955/1995 and 3956/1995;", "( iv ) GRD 967,700 for the proceedings against M.;", "(v) GRD 2,402,491 for the proceedings concerning the threatened demolition of their house;", "( vi ) GRD 327,980 for expert opinions concerning the size of the swamp, the age of their house and the size of their property;", "( vii ) GRD 1,407,312 for travel expenses.", "61. For the proceedings before the Court, for which they had received legal aid, the applicants sought EUR 21,939.53.", "62. The Court, in accordance with its case-law, will consider whether the costs and expenses claimed were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were also reasonable as to quantum (see, among other authorities, Wettstein v. Switzerland, no. 33958/96, § 56, ECHR 2000-XII).", "63. The Court considers that only part of the costs incurred before the domestic authorities were aimed at remedying the violations of Article 6 § 1 found in the present case. It further notes that the applicants received a total amount of EUR 920 under the Court’s legal aid scheme and that they were only partly successful with their application. Making an assessment on an equitable basis, the Court awards the applicants jointly EUR 5,000, including value-added tax.", "C. Default interest", "64. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. Thirteen of the applicants live in the municipality of Somma Vesuviana, in Campania (Italy). The other five work there.", "7. From 11 February 1994 to 31 December 2009 a state of emergency ( stato di emergenza ) was in place in the Campania region, by decision of the then Prime Minister, because of serious problems of solid urban waste disposal.", "8. From 11 February 1994 to 23 May 2008 the management of the state of emergency was entrusted to “deputy commissioners” appointed by the Prime Minister and assisted by assistant commissioners. Nine high officials – including four presidents of the region of Campania and the head of the civil emergency planning department of the Prime Minister’s Office – were appointed deputy commissioners.", "9. From 23 May 2008 to 31 December 2009 the management of the state of emergency was entrusted to an under-secretariat in the Prime Minister’s Office under the head of the civil emergency planning department.", "A. Waste management in Campania and in the municipality of Somma Vesuviana until 2004", "10. Regional Law no. 10 of 10 February 1993 (“Law no. 10/93”) laid down guidelines for the adoption of a waste disposal plan in Campania which was to treat urban solid waste and recyclable materials and halve the number and capacity of landfill sites – with the help of compacting and sorting techniques – between 1993 and 1995.", "11. On 9 June 1997 the President of the Region, having been appointed deputy commissioner, drew up a regional waste disposal plan. Among other things, it provided for the construction of five incinerators – four of which would be built on land in the municipalities of Marcianise, Battipaglia, Giugliano and Nola-Marigliano (the last two of these were to serve the municipalities where the applicants lived), and the fifth on a site to be determined at a later date – and also five main landfill sites and six secondary sites.", "12. On 12 June 1998 the President of the Region, acting as deputy commissioner, issued a call for tenders for a ten-year concession to operate the waste collection and disposal service in the province of Naples. According to the specifications, the successful bidder would be required to ensure the proper reception of the collected waste, its sorting, conversion into refuse-derived fuel ( combustibile derivato da rifiuti – “RDF”) and incineration. To that end, it was to construct and manage three waste sorting and RDF production facilities and set up an electric power plant fuelled by RDF, by 31 December 2000.", "13. When the tendering process ended on 20 March 2000, the concession was awarded to a consortium of five companies: Fisia Impianti S.p.A. (main contractor), Impregilo S.p.A., Babcock Kommunal GmbH, Deutsche Babcock Anlagen GmbH and Evo Oberhausen AG (subcontractors).", "14. Under the terms of a service concession agreement signed on 7 June 2000, the five successful companies undertook to build two RDF production centres in Caivano and Tufino in 300 days, starting on 10 and 14 April 2000 respectively, and another in Giugliano in 270 days, starting from 30 March 2000. The RDF-fuelled power plant to be built in Acerra was to be built in 24 months, starting from a date to be determined later.", "15. In the meantime, on 22 April 1999 the deputy commissioner had issued a call for tenders for the waste disposal service concession in Campania. The concession was awarded to FIBE S.p.A. a consortium of companies formed specially for the purpose. On an unspecified date they formed a company called FIBE Campania S.p.A.", "16. Under the concession agreement signed on 5 September 2001, FIBE S.p.A. was to build and manage seven RDF production centres and two electric power plants fuelled by RDF. It was also required to ensure the proper reception, sorting and treatment of the waste collected in the region and transform 32% of it into RDF and 33% into compost, and produce 14% of non-recyclable waste and 3% of ferrous waste.", "17. In January 2001 the closure of the Tufino landfill site resulted in the temporary suspension of waste disposal services in the province of Naples. To help control the situation the mayors of the other municipalities in the province authorised the storage of the waste in their respective landfill sites on a temporary basis, under section 13 of Legislative Decree no. 22 of 5 February 1997 ...", "18. From the end of 2001 to May 2003 seven RDF production centres were built, in Caivano, Pianodardine, Santa Maria Capua Vetere, Giugliano, Casalduni, Tufino and Battipaglia.", "19. On 22 May 2001 the urban waste collection and transport service of the municipality of Somma Vesuviana was entrusted to a consortium of two companies: C.I.C.-Clin Industrie Città S.p.A. and Ecologia Bruscino S.r.l. On 26 October 2004 the management of the service was handed over to M.I.T.A. S.p.A., a publicly-owned company.", "B. The criminal investigation into the situation of the waste disposal service following the signature of the concession contracts of 7 June 2000 and 5 September 2001", "20. In 2003 the Naples Public Prosecutor’s Office opened a criminal investigation (RGNR no. 15940/03) into the management of the waste disposal service in Campania since the signature of the concession contracts on 7 June 2000 and 5 September 2001.", "21. On 31 July 2007 the public prosecutor’s office requested the committal for trial of the administrators and certain employees of Fisia Italimpianti S.p.A., FIBE S.p.A., FIBE Campania S.p.A., Impregilo S.p.A. and Gestione Napoli S.p.A. (“the companies”), as well as the deputy commissioner in post from 2000 to 2004 and several officials from his office, on charges of fraud, failure to perform public contracts, deception, interruption of a public service or utility, abuse of office, misrepresentation of the facts in the performance of public duties and conducting unauthorised waste management operations, committed between 2001 and 2005.", "22. The members of the companies concerned were accused, inter alia, of having, with the complicity of the deputy commissioner and of officials from his office, failed in their contractual duty to receive and process the region’s waste. The companies themselves were accused of having delayed and in some cases interrupted the regular reception of the waste collected in the RDF production centres, causing refuse to pile up in the streets and the temporary storage sites provided by the mayors or the deputy commissioner.", "23. The public prosecutor’s office also accused the companies of having (1) produced RDF and compost by means not provided for in their contracts; (2) failed to carry out the requisite RDF energy recovery operations pending the construction of the RDF power station; (3) sub ‑ contracted the transportation of the processed waste produced by the RDF production centres, in breach of the terms of the concession contract; and (4) stocked pollutants from the production of RDF on illegal sites with no effort to protect the environment.", "24. The public officials concerned by the committal request were accused of having falsely attested that the companies in question had complied with the laws and contractual provisions governing waste disposal, authorised the opening of non-regulation waste disposal sites, the temporary storage of the RDF pending the opening of the power stations, and the dumping of pollutants produced by RDF production plants, and authorised derogations from the contractual specifications governing RDF production.", "25. On 29 February 2008 the preliminary investigation judge ordered the accused to be committed for trial and scheduled the hearing before the Naples Court to be held on 14 May 2008.", "C. Waste disposal management in Campania and the municipality of Somma Vesuviana from 2005 to 2007", "26. Legislative Decree no. 245 of 30 November 2005, which subsequently became Law no. 21 of 27 January 2006, provided for the termination of the contracts governing waste disposal in Campania signed by the deputy commissioner in 2000 and 2001, and for the urgent organisation of a new call for tenders. In order to guarantee continuity of service, the companies already under contract were required to continue their activities until the new call for tenders was over, but only until 31 December 2007.", "27. An initial call for tenders, issued on 27 March 2006 by the deputy commissioner then in post, failed for lack of sufficient valid tenders.", "28. On 2 August 2006 the deputy commissioner issued a new call for tenders for a twenty-year concession.", "29. Legislative Decree no. 263 of 9 October 2006, which subsequently became Law no. 290 of 6 December 2006, appointed the head of the civil emergency planning department to the post of deputy commissioner in charge of the waste disposal crisis in Campania. When the second call for tenders was annulled the deputy commissioner was instructed to sign new contractors to handle waste disposal.", "30. On 28 March 2007 the regional authorities passed Law no. 4, providing for the creation of a regional division of the waste disposal scheme, a regional waste disposal observatory, a fully comprehensive regional waste management plan, a regional plan for special waste management, including dangerous waste, and a regional plan to clean up polluted sites.", "31. On 6 July 2007 the Prefect of Naples was appointed deputy commissioner in charge of the waste disposal crisis.", "32. Legislative Decree no. 61 of 11 May 2007, which subsequently became Law no. 87 of 5 July 2007, authorised the creation, in the municipalities of Serre (Salerno), Savignano Irpino (Avellino), Terzigno (Naples) and Sant’Arcangelo Trimonte (Benevento), of landfill sites with a special derogation from the statutory environmental protection and health and safety standards, and prohibited the creation of new waste disposal sites, in particular in the municipalities of Giugliano in Campania, Villaricca, Qualiano and Quarto (Naples), at least until the region had been cleaned up. The law made the deputy commissioner responsible for rapidly identifying new companies to collect and dispose of waste.", "33. On 21 November 2007 a third call for tenders was issued. It failed because not enough tenders were received.", "34. On 28 December 2007 the deputy commissioner drew up a regional plan for urban waste in Campania, in keeping with section 9 of Legislative Decree no. 61/07. It comprised a crisis resolution strategy based inter alia on the development of selective waste collection, transparency in the life cycle of waste, the rationalisation and upgrading of the existing structures – in particular at least one of the RDF production centres –, the creation of structures for producing compost, and the use of new technologies and methods for the biological treatment of waste.", "35. On 19 April 2008 the publicly-owned company Pomigliano Ambiente S.p.A. was put in charge of collecting and transporting organic waste in the municipality of Somma Vesuviana.", "D. Waste management in Campania and the municipality of Somma Vesuviana from 2008 to 2010", "36. A new crisis situation developed at the end of 2007. Tons of waste were left to pile up for weeks in the streets of Naples and other towns in the province, including those where the applicants lived (see list appended).", "37. On 11 January 2008, by order no. 3639/08, the Prime Minister appointed a senior police officer deputy commissioner. His task was to open the landfill sites provided for in Legislative Decree no. 61/07 and to locate new waste storage and disposal sites, with the assistance of the police and the army. The order also invited the municipalities in the region to prepare plans for the selective collection of waste.", "38. Legislative Decree no. 90 of 23 May 2008, which subsequently became Law no. 123 of 14 July 2008 (on “Extraordinary measures in response to the waste disposal crisis in Campania and subsequent civil protection measures”) – appointed the head of the civil emergency planning department to the post of undersecretary of State to the Prime Minister’s Office and made him responsible for managing the crisis until 31 December 2009, in place of the deputy commissioner. The undersecretary was authorised to open ten new landfill sites in the region, including two in Terzigno and Chiaiano, with a special derogation from the statutory environmental protection and health and safety standards.", "39. Legislative Decree no. 90/08 also authorised the treatment of certain categories of waste at the RDF-fuelled power plant in Acerra – against the opinion submitted on 9 February 2005 by the environmental impact assessment committee – and the construction of RDF-fuelled power plants in Santa Maria La Fossa (Caserta) and in Naples and Salerno.", "40. The Legislative Decree handed over ownership of the waste sorting and treatment sites to the provinces of Campania but provisionally left it to the army to manage the sites.", "41. Paragraphs 4 and 7 of section 2 of the decree classified the sites, the zones, the plants and the headquarters of the waste management services “strategic national interest zones” placed under the supervision of the police and the army. The armed forces were asked to help organise the implantation of the sites and the collection and transport of waste.", "42. Section 2, paragraph 9, classified preventing, obstructing or hindering waste disposal as the punishable offence of interruption of a public service.", "43. Lastly, the Legislative Decree instructed the undersecretary of State to ensure that the municipalities complied with the objectives for the selective collection of urban waste laid down in the 28 December 2007 regional plan for urban waste in Campania.", "44. Legislative Decree no. 172 of 6 November 2008, which subsequently became Law no. 210 of 30 December 2008 (on “Extraordinary measures in response to the waste disposal crisis in Campania and urgent environmental protection provisions”) provided for the possibility, in the territories affected by the state of emergency regarding waste disposal, of mayors, provincial presidents, municipal or provincial councillors and municipal or provincial commission members being dismissed by decree of the Minister of the Interior in the event of serious neglect, inter alia, in their duty to plan and organise the collection, transport, processing, elimination and selective sorting of waste. It also provided, in the same territories, for special criminal sanctions to punish, inter alia, (1) the illegal dumping or burning of waste; (2) the unauthorised collection, transport, processing, elimination and sale of waste; (3) the creation and management of illegal landfill sites and the mixing of dangerous and non-dangerous waste.", "45. According to the information submitted by the Government, which the applicants did not dispute, two landfill sites had already been opened in Savignano Irpino and Sant’Arcangelo Trimonte at the end of October 2009, others were on the point of opening in Chiaiano, Terzigno and San Tammaro, and preliminary work was under way with a view to opening a site at Andretta (Avellino). The finishing touches were being put to the RDF-fuelled power plant in Acerra, a call for tenders for the construction of an RDF-fuelled power plant in Salerno had been issued and a site for an RDF-fuelled power plant in the province of Naples had been chosen. From 14 January to 1 March 2008 269,000 tonnes of waste were removed from the streets of the region’s towns and 79,000 tonnes of RDF were stored. Five hundred and thirty municipalities introduced the selective collection of waste in compliance with order no. 3639/08.", "46. On 3 June 2008, pursuant to order no. 3804/09 issued by the Prime Minister and following the approval of a selective waste collection programme, a call for tenders for the waste collection service in the municipality of Somma Vesuviana was won by L’Igiene Urbana S.r.l.", "47. On 15 March 2009, by order no. 3746, the Prime Minister urged the provinces of the region to set up semi-public companies to run the waste storage sites, landfills and waste disposal, processing and recycling plants.", "E. The criminal investigation into the management of the waste disposal service after December 2005", "48. In 2006, on an unspecified date, the Naples Public Prosecutor’s Office opened a criminal investigation (RGNR no. 40246/06) into the waste disposal operations organised on a temporary basis by FIBE S.p.A. and FIBE Campania S.p.A. during the transition period following the termination of the concession contracts.", "49. On 22 May 2008, at the request of the prosecutor’s office, the preliminary investigation judge at the Naples Court placed compulsory residence orders on the managing directors of FIBE S.p.A. and FIBE Campania S.p.A., several of the companies’ executives and employees, the people in charge of the waste sorting centres run by Fisia Italimpianti S.p.A., the manager of the Villaricca landfill, representatives of the FS Cargo S.p.A. transport company and several officials from the deputy commissioner’s office.", "50. The accused were charged, inter alia, with conspiring in the illegal trafficking of waste, forgery of official documents, deception, misrepresentation of the facts in the performance of public duties, and organised trafficking of waste.", "51. On an unspecified date in 2008 the Naples Public Prosecutor’s Office opened a criminal investigation (RGNR no. 32722/08, nicknamed “ Rompiballe ”) into the waste disposal operations carried out after December 2005. According to the information supplied by the Government, which the applicants did not dispute, the investigation, which was still pending on 26 October 2009, concerned a number of offences against the environment and the public authorities and targeted several employees of FIBE S.p.A. and other companies in the consortium, as well as officials from the deputy commissioner’s office.", "F. The judgments of the Court of Justice of the European Union", "52. On 22 March 2005 the Commission of the European Communities (“the Commission”) brought an action for non-compliance against Italy before the Court of Justice under Article 226 of the Treaty establishing the European Community (“TEC”) (case no. C-135/05). Criticising the existence of a large number of illegal and unsupervised landfill sites in Italy, the Commission alleged that the Italian authorities had failed to honour their obligations under Articles 4, 8 and 9 of Directive 75/442/EEC on waste, Article 2 § 1 of Directive 91/689/EEC on hazardous waste and Article 14, letters (a) to (c), of Directive 1999/31/EC on the landfill of waste.", "53. In its judgment of 26 April 2007 the Court of Justice noted “the general non-compliance of the tips [with the] provisions”, observing, inter alia, that the Italian Government “does not dispute the existence ... in Italy of at least 700 illegal tips containing hazardous waste, which are therefore not subject to any control measures”.", "54. It concluded that the Italian Republic had failed to fulfil its obligations under the provisions cited by the Commission, because it had failed to adopt all the necessary measures to ensure that waste was recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and to prohibit the abandonment, dumping or uncontrolled disposal of waste.", "55. On 3 July 2008 the Commission brought a new action for non ‑ compliance against Italy under Article 226 TEC (case no. C-297/08).", "56. In a judgment of 4 March 2010 the Court of Justice, while noting the measures taken by Italy in 2008 to tackle the “waste crisis”, referred to the existence of a “structural deficit in terms of the installations necessary for the disposal of the urban waste produced in Campania, as evidenced by the considerable quantities of waste which [had] accumulated along the public roads in the region”.", "It held that Italy had “failed to meet its obligation to establish an integrated and adequate network of disposal installations enabling it ... to [ensure the] disposal of its own waste and, in consequence, [had] failed to fulfil its obligations under Article 5 of Directive 2006/12”. According to the Court of Justice, that failure could not be justified by such circumstances as the opposition of the local population to waste disposal sites, the presence of criminal activity in the region or the non-performance of contractual obligations by the undertakings entrusted with the construction of certain waste disposal infrastructures. It explained that this last factor could not be considered force majeure, because “the notion of force majeure require[d] the non-performance of the act in question to be attributable to circumstances, beyond the control of the party claiming force majeure, which [were] abnormal and unforeseeable and the consequences of which could not have been avoided despite the exercise of all due diligence”, and that a diligent authority should have taken the necessary precautions either to guard against the contractual non-performance in question or to ensure that, despite those shortcomings, actual construction of the infrastructures necessary for waste disposal would be completed on time. The Court of Justice also noted that “the Italian Republic [did] not dispute that the waste littering the public roads totalled 55,000 tonnes, adding to the 110,000 tonnes to 120,000 tonnes of waste awaiting treatment at municipal storage sites”. Concerning the environmental hazard, the Court of Justice reiterated that the accumulation of waste, regard being had in particular to the limited capacity of each region or locality for waste reception, constituted a danger to the environment. It concluded that the accumulation of such large quantities of waste along public roads and in temporary storage areas had given rise to a “risk to water, air or soil, and to plants or animals” within the meaning of Article 4(1)(a) of Directive 2006/12, had caused “a nuisance through noise or odours” within the meaning of Article 4(1)(b), and was likely to affect “adversely ... the countryside or places of special interest” within the meaning of Article 4(1)(c) of that Directive. As to the danger to human health, the Court of Justice noted that “that the worrying situation of accumulation of waste along the public roads [had] exposed the health of the local inhabitants to certain danger, in breach of Article 4(1) of Directive 2006/12”.", "...", "B. Relevant domestic law and practice regarding compensation for poor management of waste disposal services", "68. Section 4 of Legislative Decree no. 90 of 24 May 2008 empowers the administrative courts to determine disputes concerning waste disposal activities in general, including when they are carried out by public authorities or the like. The powers of the administrative courts extend to disputes over rights protected by the Constitution.", "69. In a claim for damages brought by a group of residents on 5 May 2008 – prior to the entry into force of section 4 of Legislative Decree no. 90/08 – against the city of Naples and the company responsible for waste disposal there, the Naples Civil Court noted that only the administrative court could examine the case and adopt any urgent interim measure within the meaning of section 21 of Law no. 1034 of 6 December 1971 (instituting the regional administrative courts).", "70. By two judgments delivered on 21 May and 23 November 2009, the Court of Cassation, sitting as a full court, held that the administrative court had jurisdiction to examine claims for compensation brought by the residents of a municipality against the authorities responsible for the collection, treatment and elimination of waste.", "C. European Union law", "71. Article 4 of Directive 75/442/EEC of the Council of the European Union, of 15 July 1975, on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, reads as follows:", "“Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular:", "— without risk to water, air, soil and plants and animals,", "— without causing a nuisance through noise or odours,", "— without adversely affecting the countryside or places of special interest.", "Member States shall also take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste.”", "72. The relevant provision of Article 2 of Council Directive 91/689/EEC on hazardous waste, of 12 December 1991, reads as follows:", "“1. Member States shall take the necessary measures to require that on every site where tipping (discharge) of hazardous waste takes place the waste is recorded and identified.", "...”", "73. Council Directive 1999/31/EC on the landfill of waste, of 26 April 1999, contains the following provisions:", "Article 14 – Existing landfill sites", "Member States shall take measures in order that landfills which have been granted a permit, or which are already in operation at the time of transposition of this Directive, may not continue to operate unless ... :", "(a) with a period of one year after the date laid down in Article 18(1) [that is, at the latest, by 16 July 2002], the operator of a landfill shall prepare and present to the competent authorities, for their approval, a conditioning plan for the site including the particulars listed in Article 8 and any corrective measures which the operator considers will be needed in order to comply with the requirements of this Directive ...;", "(b) following the presentation of the conditioning plan, the competent authorities shall take a definite decision on whether operations may continue on the basis of the said conditioning plan and this Directive. Member States shall take the necessary measures to close down as soon as possible ... sites which have not been granted ... a permit to continue to operate;", "(c) on the basis of the approved site-conditioning plan, the competent authority shall authorise the necessary work and shall lay down a transitional period for the completion of the plan. ...”", "Article 18 – Transposition", "“1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than two years after its entry into force [that is, by 16 July 2001]. They shall forthwith inform the Commission thereof.", "...”", "74. The relevant provisions of Directive 2006/12/CE of the European Parliament and of the Council of 5 April 2006 on waste read as follows:", "Article 4", "“1. Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular:", "(a) without risk to water, air or soil, or to plants or animals;", "(b) without causing a nuisance through noise or odours;", "(c) without adversely affecting the countryside or places of special interest.", "2. Member States shall take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste.", "Article 5", "1. Member States shall take appropriate measures, in cooperation with other Member States where this is necessary or advisable, to establish an integrated and adequate network of disposal installations, taking account of the best available technology not involving excessive costs. The network must enable the Community as a whole to become self-sufficient in waste disposal and the Member States to move towards that aim individually, taking into account geographical circumstances or the need for specialised installations for certain types of waste.", "2. The network referred to in paragraph 1 must enable waste to be disposed of in one of the nearest appropriate installations, by means of the most appropriate methods and technologies in order to ensure a high level of protection for the environment and public health.”", "75. By virtue of the precautionary principle enshrined in Article 174 of the Treaty establishing the European Community, the lack of certainty regarding the available scientific and technical data cannot justify States delaying the adoption of effective and proportionate measures to prevent a risk of serious and irreversible damage to the environment. The Community’s case-law has applied this principle mainly in cases concerning health, whereas the Treaty refers to the principle only in connection with the Community’s environmental policy. According to the case-law of the Court of Justice of the European Communities (“ECJ”), “where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent” (ECJ, 5 May 1998, United Kingdom/Commission, case C-180/96, ECR I-2265, and ECJ, 5 May 1998, National Farmers’ Union, C-157/96, ECR I-2211).", "..." ]

[ "THE LAW", "...", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "94. Relying on Articles 2 and 8 of the Convention, the applicants submitted that in failing to take the requisite measures to guarantee the proper functioning of the public waste disposal service and in applying an inadequate legislative and administrative policy the State had caused serious damage to the environment in their region and endangered their lives and their health and that of the local population in general. They further maintained that the public authorities had neglected to inform the people concerned of the risks of living in a polluted area.", "95. The Government disagreed.", "96. Since it is master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I), the Court considers, regard being had to its case-law in the matter (see López Ostra v. Spain, 9 December 1994, § 51, Series A no. 303 ‑ C; Guerra and Others, cited above, § 57; Moreno. Gómez v. Spain, no. 4143/02, 16 November 2004; and Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003 ‑ VIII), that the applicants’ complaints should be examined from the standpoint of the right to respect for one’s private life and one’s home enshrined in Article 8 of the Convention, the relevant provisions of which read as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "97. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. The merits", "1. The parties’ submissions", "a) The Government", "98. The Government acknowledged that “the almost disastrous management of the collection, treatment and disposal of the waste produced in certain parts of the province of Naples” had led to the accumulation of refuse in the streets of certain towns and cities and to the appearance of illegal dumping sites. However, they submitted that the acute phase of the crisis had lasted only about five months, from the end of 2007 to May 2008, and that in any event Somma Vesuviana had not been affected.", "99. They further submitted that the difficulties encountered in Campania were attributable to force majeure factors such as the presence of organised crime in the region, failure by the waste disposal contractors to fulfil their obligations under the concession contracts, the lack of companies capable of guaranteeing continuity of service and the opposition of the population to the creation of landfills and RDF production sites. They also explained that the fires in the streets had been lit by local people to burn the waste, and therefore the State could not be held responsible.", "100. In any event, in the Government’s submission the Italian authorities had fulfilled their duty of care and taken adequate measures in response to the “crisis”. On the one hand they had brought criminal proceedings against those responsible for the poor management of the situation. And on the other they had allegedly taken appropriate legislative measures, including Legislative Decree no. 90/08, which they claim had put in place an effective system which had resulted in the collection of the waste, the elimination of illegal landfills and the recommissioning of the waste treatment and disposal plants (see paragraph 68 above).", "101. The Government further submitted that they had also carried out several studies on the causes and effects of the “waste crisis” in Campania and given the population information enabling them to assess their degree of exposure to the risks associated with waste collection, treatment and disposal. The causes of the waste crisis in Campania had been analysed by three parliamentary commissions, whose conclusions had been published in reports. The Ministry of Health and the civil emergency planning department had allegedly commissioned various studies to determine the impact of the crisis on the environment and human health ... According to the Government these studies had revealed that the “waste crisis” had had no significant impact on the environment – except for a momentary peak in water pollution levels not directly linked to the presence of waste – and no negative effects on human health. The results had been made public at public seminars and conferences. Lastly, the Government submitted, a documentation centre on health and the environmental pollution caused by the waste, managed by the National Disease Prevention and Control Centre and the Campania Region, was being set up.", "b) The applicants", "102. The applicants submitted that the failings of the authorities in the management of the crisis had caused damage to the environment and put their lives in danger.", "103. They argued that the respondent State had also failed in its obligation to provide information enabling the people concerned to assess their degree of exposure to the risks associated with waste collection and disposal because they had not made public the findings of the study commissioned by the civil emergency planning department ... Furthermore, the Italian Health Institute study, presented at the prefecture in Naples in January 2009 ..., had allegedly revealed a link between tumour levels and the presence of landfills in the area comprising the municipalities of Acerra, Nola and Marigliano (bordering on Somma Vesuviana).", "2. The Court’s assessment", "a) General principles", "104. The Court reiterates that severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely (see López Ostra, cited above, § 51, and Guerra and Others, cited above, § 60).", "105. It further points out that Article 8 does not merely compel the State to abstain from arbitrary interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life. In any event, whether the question is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicant’s rights under paragraph 1 of Article 8 or in terms of an \"interference by a public authority\" to be justified in accordance with paragraph 2, the applicable principles are broadly similar (see López Ostra, cited above, § 51, and Guerra and Others, cited above, § 58).", "106. In the context of dangerous activities in particular, States have an obligation to set in place regulations geared to the special features of the activity in question, particularly with regard to the level of risk potentially involved. They must govern the licensing, setting-up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks (see, mutatis mutandis, Oneryildiz v. Turkey, [GC], no. 48939/99, § 90, ECHR 2004 ‑ XII).", "107. As to the procedural obligations under Article 8, the Court reiterates that it attaches particular importance to public access to information that enables them to assess the risks to which they are exposed (see Guerra and Others, cited above, § 60; Taşkin and Others v. Turkey no. 46117/99, § 119, ECHR 2004-X; Giacomelli v. Italy, no. 59909/00, § 83, ECHR 2006 ‑ XII; and Tătar v. Romania, no. 67021/01, § 113, ECHR 2009 ‑ ... (extracts)). It further reiterates that Article 5 § 1 (c) of the Aarhus Convention, which Italy has ratified, requires each Party to ensure that “in the event of any imminent threat to human health or the environment, whether caused by human activities or due to natural causes, all information which could enable the public to take measures to prevent or mitigate harm arising from the threat and is held by a public authority is disseminated immediately and without delay to members of the public who may be affected”. ...", "b) Application of the above principles to the instant case", "108. The Court has already noted ... that the municipality of Somma Vesuviana, where the applicants live or work, was affected by the “waste crisis”. It notes that a state of emergency was declared in Campania from 11 February 1994 to 31 December 2009 and that the applicants were forced to live in an environment polluted by refuse left in the streets at least from the end of 2007 until May 2008. The Court considers that this situation may have led to a deterioration of the applicants’ quality of life and, in particular, adversely affected their right to respect for their homes and their family life. Article 8 therefore applies in the present case. The Court further notes that the applicants have not alleged that they were affected by any pathologies linked to exposure to waste, and that the scientific studies submitted by the parties reach opposite conclusions as to the existence of a causal link between exposure to the waste and an increased risk of developing pathologies such as cancer or congenital malformations. In these conditions, although the Court of Justice of the European Union, when examining the waste disposal situation in Campania, considered that the accumulation of large quantities of refuse along public roads and in temporary storage areas exposed the health of the local inhabitants to certain danger (see judgment C-297/08, cited in paragraphs 55 and 56 above), the Court cannot conclude that the applicants’ lives or health were threatened. That said, however, Article 8 may be relied on even in the absence of any evidence of a serious danger to people’s health (see López Ostra, cited above, § 51).", "109. The Court considers that the present case does not concern direct interference with the applicants’ right to respect for their homes and their private life brought about by the action of the public authorities, but rather the alleged failure of the authorities to take adequate steps to ensure the proper functioning of the waste collection, treatment and disposal service in the municipality of Somma Vesuviana. It accordingly considers it appropriate to examine the case from the standpoint of the State’s positive obligations under Article 8 of the Convention (see Guerra and Others, cited above, § 58).", "110. The collection, treatment and disposal of waste are without a doubt dangerous activities (see, mutatis mutandis, Oneryildiz, cited above, § 71). That being so, the State was under a positive obligation to take reasonable and adequate steps to protect the right of the people concerned to respect for their homes and their private life and, more generally, to live in a safe and healthy environment (see Tătar, cited above, § 107). Regard must also be had to the margin of appreciation the States enjoy in the choice of the concrete means they use to fulfil their positive obligations under Article 8 of the Convention (see Fadeyeva v. Russia, no. 55723/00, § 96, ECHR 2005 ‑ IV).", "In the present case, from 2000 to 2008 the waste treatment and disposal service was entrusted to private companies, while the waste collection service in the municipality of Somma Vesuviana was provided by several publicly owned companies. The fact that the Italian authorities handed over the management of a public service to third parties does not relieve them of the duty of care incumbent on them under Article 8 of the Convention (see López Ostra, cited above, §§ 44-58).", "111. The Court notes that from May 2008 the Italian State took various measures and initiatives to overcome the difficulties in Campania, and that the state of emergency declared there on 11 February 1994 was lifted on 31 December 2009. The respondent Government acknowledged the existence of a crisis situation, it is true, but it classified that situation as force majeure. In this connection the Court will simply reiterate the terms of Article 23 of the Articles of the United Nations International Law Commission on State responsibility for internationally wrongful acts, according to which “ force majeure is “an irresistible force or ... an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform [an international] obligation”. ... Regard also being had to the conclusions of the Court of Justice of the European Union in case no. C-297/08, cited above, the Court considers that the circumstances relied on by the Italian State cannot be considered as force majeure.", "112. In the Court’s opinion, even assuming, as the Government have affirmed, that the acute phase of the crisis lasted only five months – from the end of 2007 to May 2008 – and in spite of the margin of appreciation left to the respondent State, there is no denying that the protracted inability of the Italian authorities to ensure the proper functioning of the waste collection, treatment and disposal service adversely affected the applicants’ right to respect for their homes and their private life, in violation of Article 8 of the Convention in its substantive aspect.", "113. However, as to the procedural aspect of Article 8 and the complaint concerning the alleged failure to provide information that would have enabled the applicants to assess the risk they ran, the Court points out that the studies commissioned by the civil emergency planning department were made public in 2005 and 2008. It accordingly considers that the Italian authorities discharged their duty to inform the people concerned, including the applicants, of the potential risks to which they exposed themselves by continuing to live in Campania. There has therefore been no violation of Article 8 of the Convention in this regard.", "...", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "119. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "120. The applicants each claimed 15,000 euros (EUR) for the non ‑ pecuniary damage allegedly sustained.", "121. The Government objected, arguing that the claim only concerned Mr Errico di Lorenzo, the lawyer acting before the Court on his own behalf.", "122. The Court notes that Mr di Lorenzo claimed compensation for non ‑ pecuniary damage not only for himself but for “each applicant”, so it considers that the claim for compensation covers all the applicants. In the circumstances of the present case, however, the Court considers that the violations of the Convention it has found constitute sufficient just satisfaction for any non-pecuniary damage.", "..." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. The leaflet", "8. The applicants, Helen Steel and David Morris, were born in 1965 and 1954 respectively and live in London.", "9. During the period with which this application is concerned, Ms Steel was at times employed as a part-time bar worker, earning approximately 65 pounds sterling (GBP) per week, and was at other times unwaged and dependent on income support. Mr Morris, a former postal worker, was unwaged and in receipt of income support. He was a single parent, responsible for the day - to - day care of his son, aged 4 when the trial began. At all material times the applicants were associated with London Greenpeace, a small group, unconnected to Greenpeace International, which campaigned principally on environmental and social issues.", "10. In the mid-1980s London Greenpeace began an anti-McDonald's campaign. In 1986 a six-page leaflet entitled “What's wrong with McDonald's?” (“the leaflet ”) was produced and distributed as part of that campaign. It was last reprinted in early 1987.", "11. The first page of the leaflet showed a grotesque cartoon image of a man, wearing a Stetson and with dollar signs in his eyes, hiding behind a “Ronald McDonald” clown mask. Running along the top of pages 2 to 5 was a header comprised of the McDonald's “golden arches” symbol, with the words “McDollars, McGreedy, McCancer, McMurder, McDisease ... ” and so forth superimposed on it.", "12. The text of page 2 of the leaflet read as follows (extract):", "“ What's the connection between McDonald's and starvation in the'Third World'?", "THERE's no point feeling guilty about eating while watching starving African children on TV. If you do send money to Band Aid, or shop at Oxfam, etc., that's morally good but politically useless. It shifts the blame from governments and does nothing to challenge the power of multinational corporations.", "HUNGRY FOR DOLLARS", "McDonald's is one of several giant corporations with investments in vast tracts of land in poor countries, sold to them by the dollar-hungry rulers (often military) and privileged elites, evicting the small farmers that live there growing food for their own people.", "The power of the US dollar means that in order to buy technology and manufactured goods, poor countries are trapped into producing more and more food for export to the States. Out of 40 of the world's poorest countries, 36 export food to the USA – the wealthiest.", "ECONOMIC IMPERIALISM", "Some'Third World'countries, where most children are undernourished, are actually exporting their staple crops as animal feed – i.e. to fatten cattle for turning into burgers in the'First World'. Millions of acres of the best farmland in poor countries are being used for our benefit – for tea, coffee, tobacco, etc. – while people there are starving. McDonald's is directly involved in this economic imperialism, which keeps most black people poor and hungry while many whites grow fat.", "GROSS MISUSE OF RESOURCES", "GRAIN is fed to cattle in South American countries to produce the meat in McDonald's hamburgers. Cattle consume 10 times the amount of grain and soy that humans do: one calorie of beef demands ten calories of grain. Of the 145 million tons of grain and soy fed to livestock, only 21 million tons of meat and by-products are used. The waste is 124 million tons a year at a value of 20 billion US dollars. It has been calculated that this sum would feed, clothe and house the world's entire population for one year .”", "The first page of the leaflet also included a photograph of a woman and child, with the caption:", "“ A typical image of'Third World'poverty – the kind often used by charities to get'compassion money'. This diverts attention from one cause: exploitation by multinationals like McDonald's. ”", "The second and third pages of the leaflet contained a cartoon image of a burger, with a cow's head sticking out of one side and saying “If the slaughterhouse doesn't get you” and a man's head sticking out of the other, saying “the junk food will!” Pages 3 to 5 read as follows:", "“ FIFTY ACRES EVERY MINUTE", "EVERY year an area of rainforest the size of Britain is cut down or defoliated, and burnt. Globally, one billion people depend on water flowing from these forests, which soak up rain and release it gradually. The disaster in Ethiopia and Sudan is at least partly due to uncontrolled deforestation. In Amazonia – where there are now about 100,000 beef ranches – torrential rains sweep down through the treeless valleys, eroding the land and washing away the soil. The bare earth, baked by the tropical sun, becomes useless for agriculture. It has been estimated that this destruction causes at least one species of animal, plant or insect to become extinct every few hours.", "Why is it wrong for McDonald's to destroy rainforests?", "AROUND the Equator there is a lush green belt of incredibly beautiful tropical forest, untouched by human development for one hundred million years, supporting about half of the Earth's life-forms, including some 30,000 plant species, and producing a major part of the planet's crucial supply of oxygen.", "PET FOOD AND LITTER", "McDonald's and Burger King are two of the many US corporations using lethal poisons to destroy vast areas of Central American rainforest to create grazing pastures for cattle to be sent back to the States as burgers and pet food, and to provide fast-food packaging materials. (Don't be fooled by McDonald's saying they use recycled paper: only a tiny per cent of it is. The truth is it takes 800 square miles of forest just to keep them supplied with paper for one year. Tons of this end up littering the cities of'developed'countries.)", "COLONIAL INVASION", "Not only are McDonald's and many other corporations contributing to a major ecological catastrophe, they are forcing the tribal peoples in the rainforests off their ancestral territories where they have lived peacefully, without damaging their environment, for thousands of years. This is a typical example of the arrogance and viciousness of multinational companies in their endless search for more and more profit.", "It's no exaggeration to say that when you bite into a Big Mac, you're helping McDonald's empire to wreck this planet.", "What's so unhealthy about McDonald's food?", "McDONALD's try to show in their'Nutrition Guide'(which is full of impressive-looking but really quite irrelevant facts and figures) that mass-produced hamburgers, chips, colas and milkshakes, etc., are a useful and nutritious part of any diet.", "What they don't make clear is that a diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals – which describes an average McDonald's meal – is linked with cancers of the breast and bowel, and heart disease. This is accepted medical fact, not a cranky theory. Every year in Britain, heart disease alone causes about 18,000 deaths.", "FAST = JUNK", "Even if they like eating them, most people recognise that processed burgers and synthetic chips, served up in paper and plastic containers, is junk-food. McDonald's prefer the name'fast-food'. This is not just because it is manufactured and served up as quickly a possible – it has to be eaten quickly too. It's a sign of the junk-quality of Big Macs that people actually hold competitions to see who can eat one in the shortest time.", "PAYING FOR THE HABIT", "Chewing is essential for good health, as it promotes the flow of digestive juices which break down the food and send nutrients into the blood. McDonald's food is so lacking in bulk it is hardly possible to chew it. Even their own figures show that a'quarter-pounder'is 48% water. This sort of fake food encourages over-eating, and the high sugar and sodium content can make people develop a kind of addiction – a'craving'. That means more profit for McDonald's, but constipation, clogged arteries and heart attacks for many customers.", "GETTING THE CHEMISTRY RIGHT", "McDONALD's stripy staff uniforms, flashy lighting, bright plastic décor,'Happy Hats'and muzak, are all part of the gimmicky dressing-up of low-quality food which has been designed down to the last detail to look and feel and taste exactly the same in any outlet anywhere in the world. To achieve this artificial conformity, McDonald's require that their'fresh lettuce leaf', for example, is treated with twelve different chemicals just to keep it the right colour at the right crispness for the right length of time. It might as well be a bit of plastic.", "How do McDonald's deliberately exploit children?", "NEARLY all McDonald's advertising is aimed at children. Although the Ronald McDonald'personality'is not as popular as their market researchers expected (probably because it is totally unoriginal), thousands of young children now think of burgers and chips every time they see a clown with orange hair.", "THE NORMALITY TRAP", "No parent needs to be told how difficult it is to distract a child from insisting on a certain type of food or treat. Advertisements portraying McDonald's as a happy, circus-like place where burgers and chips are provided for everybody at any hour of the day (and late at night), traps children into thinking they aren't'normal'if they don't go there too. Appetite, necessity and – above all – money, never enter into the'innocent'world of Ronald McDonald.", "Few children are slow to spot the gaudy red and yellow standardised frontages in shopping centres and high streets throughout the country. McDonald's know exactly what kind of pressure this puts on people looking after children. It's hard not to give in to this'convenient'way of keeping children'happy', even if you haven't got much money and you try to avoid junk-food.", "TOY FOOD", "As if to compensate for the inadequacy of their products, McDonald's promote the consumption of meals as a'fun event'. This turns the act of eating into a performance, with the'glamour'of being in a McDonald's ('Just like it is in the ads!') reducing the food itself to the status of a prop.", "Not a lot of children are interested in nutrition, and even if they were, all the gimmicks and routines with paper hats and straws and balloons hide the fact that the food they're seduced into eating is at best mediocre, at worst poisonous – and their parents know it's not even cheap.", "RONALD'S DIRTY SECRET", "ONCE told the grim story about how hamburgers are made, children are far less ready to join in Ronald McDonald's perverse antics. With the right prompting, a child's imagination can easily turn a clown into a bogeyman (a lot of children are very suspicious of clowns anyway). Children love a secret, and Ronald's is especially disgusting.", "In what way are McDonald's responsible for torture and murder?", "THE menu at McDonald's is based on meat. They sell millions of burgers every day in 35 countries throughout the world. This means the constant slaughter, day by day, of animals born and bred solely to be turned into McDonald's products.", "Some of them – especially chickens and pigs – spend their lives in the entirely artificial conditions of huge factory farms, with no access to air or sunshine and no freedom of movement. Their deaths are bloody and barbaric.", "MURDERING A BIG MAC", "In the slaughterhouse, animals often struggle to escape. Cattle become frantic as they watch the animal before them in the killing-line being prodded, beaten, electrocuted and knifed.", "A recent British government report criticised inefficient stunning methods which frequently result in animals having their throats cut while still fully conscious. McDonald's are responsible for the deaths of countless animals by this supposedly humane method.", "We have the choice to eat meat or not. The 450 million animals killed for food in Britain every year have no choice at all. It is often said that after visiting an abattoir, people become nauseous at the thought of eating flesh. How many of us would be prepared to work in a slaughterhouse and kill the animals we eat?", "WHAT'S YOUR POISON?", "MEAT is responsible for 70% of all food-poisoning incidents, with chicken and minced meat (as used in burgers) being the worst offenders. When animals are slaughtered, meat can be contaminated with gut contents, faeces and urine, leading to bacterial infection. In an attempt to counteract infection in their animals, farmers routinely inject them with doses of antibiotics. These, in addition to growth-promoting hormone drugs and pesticide residues in their feed, build up in the animals'tissues and can further damage the health of people on a meat-based diet.", "What's it like working for McDonald's?", "THERE must be a serious problem: even though 80% of McDonald's workers are part-time, the annual staff turnover is 60% (in the USA it's 300%). It's not unusual for their restaurant workers to quit after just four or five weeks. The reasons are not hard to find.", "NO UNIONS ALLOWED", "Workers in catering do badly in terms of pay and conditions. They are at work in the evenings and at weekends, doing long shifts in hot, smelly, noisy environments. Wages are low and chances of promotion minimal.", "To improve this through Trade Union negotiation is very difficult: there is no union specifically for these workers, and the ones they could join show little interest in the problems of part-timers (mostly women). A recent survey of workers in burger-restaurants found that 80% said they needed union help over pay and conditions. Another difficulty is that the'kitchen trade'has a high proportion of workers from ethnic minority groups who, with little chance of getting work elsewhere, are wary of being sacked – as many have been – for attempting union organisation.", "McDonald's have a policy of preventing unionisation by getting rid of pro-union workers. So far this has succeeded everywhere in the world except Sweden, and in Dublin after a long struggle.", "TRAINED TO SWEAT", "It's obvious that all large chain-stores and junk-food giants depend for their fat profits on the labour of young people. McDonald's is no exception: three-quarters of its workers are under 21. The production-line system deskills the work itself: anybody can grill a hamburger, and cleaning toilets or smiling at customers needs no training. So there is no need to employ chefs or qualified staff – just anybody prepared to work for low wages.", "As there is no legally-enforced minimum wage in Britain, McDonald's can pay what they like, helping to depress wage levels in the catering trade still further. They say they are providing jobs for school-leavers and take them on regardless of sex or race. The truth is McDonald's are only interested in recruiting cheap labour – which always means that disadvantaged groups, women and black people especially, are even more exploited by industry than they are already.”", "The leaflet continued, on pages 5 and 6, with a number of proposals and suggestions for change, campaigning and activity, and information about London Greenpeace.", "B. Proceedings in the High Court", "13. Because London Greenpeace was not an incorporated body, no legal action could be taken directly against it. Between October 1989 and January or May 1991, UK McDonald's hired seven private investigators from two different firms to infiltrate the group with the aim of finding out who was responsible for writing, printing and distributing the leaflet and organising the anti-McDonald's campaign. The inquiry agents attended over forty meetings of London Greenpeace, which were open to any member of the public who wished to attend, and other events such as “fayres” and public, fund-raising occasions. McDonald's subsequently relied on the evidence of some of these agents at trial to establish that the applicants had attended meetings and events and been closely involved with the organisation during the period when the leaflet was being produced and distributed.", "14. On 20 September 1990 McDonald's Corporation (“US McDonald's”) and McDonald's Restaurants Limited (“UK McDonald's” ), together referred to herein as “McDonald's”, issued a writ against the applicants and three others, claiming damages of up to GBP 100,000 for libel caused by the alleged publication by the defendants of the leaflet. McDonald's withdrew proceedings against the three other defendants, in exchange for their apology for the contents of the leaflet.", "15. The applicants denied publication, denied that the words complained of had the meanings attributed to them by McDonald's and denied that all or some of the meanings were capable of being defamatory. Further, they contended, in the alternative, that the words were substantially true or else were fair comment on matters of fact.", "16. The applicants applied for legal aid but were refused it on 3 June 1992, because legal aid was not available for defamation proceedings in the United Kingdom. They therefore represented themselves throughout the trial and appeal. Approximately GBP 40,000 was raised by donation to assist them (for example, to pay for transcripts : see paragraph 20 below ), and they received some help from barristers and solicitors acting pro bono : thus, their initial pleadings were drafted by lawyers, they were given some advice on an ad hoc basis, and they were represented during five of the pre-trial hearings and on three occasions during the trial, including the appeal to the Court of Appeal against the trial judge's grant of leave to McDonald's to amend the statement of claim ( see paragraph 24 below ). They submitted, however, that they were severely hampered by lack of resources, not just in the way of legal advice and representation, but also when it came to administration, photocopying, note-taking, and the tracing, preparation and payment of the costs and expenses of expert and factual witnesses. Throughout the proceedings McDonald's were represented by leading and junior counsel, experienced in defamation law, and by one or two solicitors and other assistants.", "17. In March 1994 UK McDonald's produced a press release and leaflet for distribution to their customers about the case, entitled “Why McDonald's is going to Court”. In May 1994 they produced a document called “Libel Action – Background Briefing” for distribution to the media and others. These documents included, inter alia, the allegation that the applicants had published a leaflet which they knew to be untrue, and the applicants counter-claimed for damages for libel from UK McDonald's.", "18. Before the start of the trial there were approximately twenty-eight interim applications, involving various issues of law and fact, some lasting as long as five days. For example, on 21 December 1993 the trial judge, Mr Justice Bell (“Bell J”), ruled that the action should be tried by a judge alone rather than a judge and jury, because it would involve the prolonged examination of documents and expert witnesses on complicated scientific matters. This ruling was upheld by the Court of Appeal on 25 March 1994, after a hearing at which the applicants were represented pro bono.", "19. The trial took place before Bell J between 28 June 1994 and 13 December 1996. It lasted for 313 court days, of which 40 were taken up with legal argument, and was the longest trial (either civil or criminal) in English legal history. Transcripts of the trial ran to approximately 20,000 pages; there were about 40,000 pages of documentary evidence; and, in addition to many written witness statements, 130 witnesses gave oral evidence – 59 for the applicants, 71 for McDonald's. Ms Steel gave evidence in person but Mr Morris chose not to.", "20. The applicants were unable to pay for daily transcripts of the proceedings, which cost approximately GBP 750 per day, or GBP 375 if split between the two parties. McDonald's paid the fee, and initially provided the applicants with free copies of the transcripts. However, McDonald's stopped doing this on 3 July 1995, because the applicants refused to undertake to use the transcripts only for the purposes of the trial, and not to publicise what had been said in court. The trial judge refused to order McDonald's to supply the transcripts in the absence of the applicants'undertaking, and this ruling was upheld by the Court of Appeal. Thereafter, the applicants, using donations from the public, purchased transcripts at reduced cost (GBP 25 per day), twenty-one days after the evidence had been given. They submit that, as a result, and without sufficient helpers to take notes in court, they were severely hampered in their ability to examine and cross-examine witnesses effectively.", "21. During the trial, Mr Morris faced an unconnected action brought against him by the London Borough of Haringey relating to possession of a property. Mr Morris signed an affidavit (“the Haringey affidavit”) in support of his application to have those proceedings stayed until the libel trial was over, in which he stated that the libel action had arisen “from leaflets we had produced concerning, inter alia, nutrition of McDonald's food ... ”. McDonald's applied for this affidavit to be adduced as evidence in the libel trial as an admission against interest on publication by Mr Morris, and Bell J agreed to this request. Mr Morris objected that the affidavit should have read “allegedly produced ” but that there had been a mistake on the part of his solicitor. The solicitor confirmed in writing to the court that the second applicant had instructed her to correct the affidavit, but that she had not done so because the error had not been material to the Haringey proceedings. The applicants submitted that they assumed that the solicitor's letter would be admitted in evidence, and that Bell J did not warn them that it was inadmissible until the closure of evidence, so that they did not realise they needed to adduce further evidence to explain the mistake. The applicants'appeal to the Court of Appeal against Bell J's admission of the affidavit was refused on 25 March 1996.", "22. On 20 November 1995, Bell J ruled on the meaning of the paragraph in the leaflet entitled “What's so unhealthy about McDonald's food?”, finding that this part of the leaflet bore the meaning", "“ ... that McDonald's food is very unhealthy because it is high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, and because eating it may well make your diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, with the very real risk that you will suffer cancer of the breast or bowel or heart disease as a result; that McDonald's know this but they do not make it clear; that they still sell the food, and they deceive customers by claiming that their food is a useful and nutritious part of any diet”.", "23. The applicants appealed to the Court of Appeal against this ruling, initially relying on seven grounds of appeal. However, the day before the hearing on 2 April 1996 before the Court of Appeal, Ms Steel gave notice on behalf of both applicants that they were withdrawing six of the seven grounds, and now wished solely to raise the issue whether the trial judge had been wrong in determining a meaning which was more serious than that pleaded by McDonald's in their statement of claim. The applicants submitted that they withdrew the other grounds of appeal relating to the meaning of this part of the leaflet because lack of time and legal advice prevented them from fully pursuing them. They mistakenly believed that it would remain open to them to raise these matters again at a full appeal after the conclusion of the trial. The Court of Appeal decided against the applicants on the remaining single ground, holding that the meaning given to this paragraph by the judge was less severe than that pleaded by McDonald's.", "24. In the light of the Haringey affidavit, McDonald's sought permission from the court to amend their statement of claim to allege that the applicants had been involved in the production of the leaflet and to allege publication dating back to September 1987. The applicants objected that such an amendment so late in the trial would be unduly prejudicial. However, on 26 April 1996 Bell J gave permission to McDonald's for the amendments; the applicants were allowed to amend their defence accordingly.", "25. Before the trial, the applicants had sought an order that McDonald's disclose the notes made by their enquiry agents; McDonald's had responded that there were no notes. During the course of the trial, however, it emerged that the notes did exist. The applicants applied for disclosure, which was opposed by McDonald's on the ground that the notes were protected by legal professional privilege. On 17 June 1996 Bell J ruled that the notes should be disclosed, but with those parts which did not relate to matters contained in the witness statements or oral evidence of the enquiry agents deleted.", "26. When all the evidence had been adduced, Bell J deliberated for six months before delivering his substantive 762- page judgment on 19 June 1997.", "On the basis, principally, of the Haringey affidavit and the evidence of McDonald's enquiry agents, he found that the second applicant had participated in the production of the leaflet in 1986, at the start of London Greenpeace's anti-McDonald's campaign, although the precise part he played could not be identified. Mr Morris had also taken part in the leaflet's distribution. Having assessed the evidence of a number of witnesses, including Ms Steel herself, he found that her involvement had begun in early 1988 and took the form of participation in London Greenpeace's activities, sharing its anti-McDonald's aims, including distribution of the leaflet. The judge found that the applicants were responsible for the publication of “several thousand” copies of the leaflet. It was not found that this publication had any impact on the sale of McDonald's products. He also found that the London Greenpeace leaflet had been reprinted word for word in a leaflet produced in 1987 and 1988 by an organisation based in Nottingham called Veggies Ltd. McDonald's had threatened libel proceedings against Veggies Ltd, but had agreed a settlement after Veggies rewrote the section in the leaflet about the destruction of the rainforest and changed the heading “In what way are McDonald's responsible for torture and murder?” to read “In what way are McDonald's responsible for the slaughtering and butchering of animals?”.", "27. Bell J summarised his findings as to the truth or otherwise of the allegations in the leaflet as follows:", "“In summary, comparing my findings with the defamatory messages in the leaflet, of which the Plaintiffs actually complained, it was and is untrue to say that either Plaintiff has been to blame for starvation in the Third World. It was and is untrue to say that they have bought vast tracts of land or any farming land in the Third World, or that they have caused the eviction of small farmers or anyone else from their land.", "It was and is untrue to say that either Plaintiff has been guilty of destruction of rainforest, thereby causing wanton damage to the environment.", "It was and is untrue to say that either of the Plaintiffs have used lethal poisons to destroy vast areas or any areas of Central American rainforest, or that they have forced tribal people in the rainforest off their ancestral territories.", "It was and is untrue to say that either Plaintiff has lied when it has claimed to have used recycled paper.", "The charge that McDonald's food is very unhealthy because it is high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, and because eating it more than just occasionally may well make your diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, with the very real, that is to say serious or substantial risk that you will suffer cancer of the breast or bowel or heart disease as a result, and that McDonald's know this but they do not make it clear, is untrue. However, various of the First and Second Plaintiffs'advertisements, promotions and booklets have pretended to a positive nutritional benefit which McDonald's food, high in fat and saturated fat and animal products and sodium, and at one time low in fibre, did not match.", "It was true to say that the Plaintiffs exploit children by using them as more susceptible subjects of advertising, to pressurise their parents into going into McDonald's. Although it was true to say that they use gimmicks and promote the consumption of meals at McDonald's as a fun event, it was not true to say that they use the gimmicks to cover up the true quality of their food or that they promote them as a fun event when they know that the contents of their meals could poison the children who eat them.", "Although some of the particular allegations made about the rearing and slaughter of animals are not true, it was true to say, overall, that the Plaintiffs are culpably responsible for cruel practices in the rearing and slaughter of some of the animals which are used to produce their food.", "It was and is untrue that the Plaintiffs sell meat products which, as they must know, expose their customers to a serious risk of food poisoning.", "The charge that the Plaintiffs provide bad working conditions has not been justified, although some of the Plaintiffs'working conditions are unsatisfactory. The charge that the Plaintiffs are only interested in recruiting cheap labour and that they exploit disadvantaged groups, women and black people especially as a result, has not been justified. It was true to say that the Second Plaintiff [UK McDonald's] pays its workers low wages and thereby helps to depress wages for workers in the catering trade in Britain, but it has not been proved that the First Plaintiff [US McDonald's] pays its workers low wages. The overall sting of low wages for bad working conditions has not been justified.", "It was and is untrue that the Plaintiffs have a policy of preventing unionisation by getting rid of pro-union workers.”", "28. As regards the applicants'counter-claim, Bell J found that McDonald's allegation that the applicants had lied in the leaflet had been unjustified, although they had been justified in alleging that the applicants had wrongly sought to deny responsibility for it. He held that the unjustified remarks had not been motivated by malice, but had been made in a situation of qualified privilege because McDonald's had been responding to vigorous attacks made on them in the leaflet, and he therefore entered judgment for McDonald's on the counter-claim also.", "29. The judge awarded US McDonald's GBP 30,000 damages and UK McDonald's a further GBP 30,000. Mr Morris was severally liable for the whole GBP 60,000, and Mr Morris and Ms Steel were to be jointly and severally liable for a total of GBP 5 5 ,000 (GBP 27,500 in respect of each plaintiff ). McDonald's did not ask for an order that the applicants pay their costs.", "C. The substantive appeal", "30. The applicants appealed to the Court of Appeal on 3 September 1997. The hearing (before Lord Justices Pill and May and Mr Justice Keene) began on 12 January 1999 and lasted 23 days, and on 31 March 1999 the court delivered its 301- page judgment.", "31. The applicants challenged a number of Bell J's decisions on general grounds of law, and contended as follows:", "“(a) [McDonald's] had no right to maintain an action for defamation because:", "– [US McDonald's] is a'multinational'and [US and UK McDonald's] are each a public corporation which has (or should have) no right at common law to bring an action for defamation on the public policy ground that in a free and democratic society such corporations must always be open to unfettered scrutiny and criticism, particularly on issues of public interest;", "– the right of corporations such as [McDonald's] to maintain an action for defamation is not'clear and certain'as the judge held ... The law is on the contrary uncertain, developing or incomplete ... Accordingly the judge should have considered and applied Article 10 of the European Convention on Human Rights ...", "(b) The judge was wrong to hold that [McDonald's] need [not] prove any particular financial loss or special damage provided that damage to its good will was likely.", "(c) The judge should have held that the burden was on [McDonald's] to prove that the matters complained of by them were false.", "(d) The judge was wrong to hold that, to establish a defence of justification, the [applicants] had to prove that the defamatory statements were true. The rule should be disapplied in the light of Article 10 of the ECHR.", "(e) It should be a defence in English law to defamation proceedings that the defendant reasonably believed that the words complained of were true.", "(f) There should be a defence in English law of qualified privilege for a publication concerning issues of public importance and interest relating to public corporations such as [McDonald's].", "(g) The judge should have held that the publication of the leaflet was on occasions of qualified privilege because it was a reasonable and legitimate response to an actual or perceived attack on the rights of others, in particular vulnerable sections of society who generally lack the means to defend themselves adequately (e. g. children, young workers, animals and the environment) which the [applicants] had a duty to make and the public an interest to hear.”", "32. The Court of Appeal rejected these submissions.", "On point (a), it held that commercial corporations had a clear right under English law to sue for defamation, and that there was no principled basis upon which a line might be drawn between strong corporations which should, according to the applicants, be deprived of this right, and weaker corporations which might require protection from unjustified criticism.", "In dismissing ground (b), it held that, as with an individual plaintiff, there was no obligation on a company to show that it had suffered actual damage, since damage to a trading reputation might be as difficult to prove as damage to the reputation of an individual, and might not necessarily cause immediate or quantifiable loss. A corporate plaintiff which showed that it had a reputation within the jurisdiction and that the defamatory publication was apt to damage its goodwill thus had a complete cause of action capable of leading to a substantial award of damages.", "On grounds (c) and (d), the applicants'submissions were contrary to clearly established English law, which stated that a publication shown by a plaintiff to be defamatory was presumed to be false until proved otherwise, and that it was for the defendants to prove the truth of statements presented as assertions of fact. Moreover, the court found some general force in McDonald's submission that in the instant case they had in fact largely accepted the burden of proving the falsity of the parts of the leaflet on which they had succeeded.", "Dismissing grounds (e) to (g), the court observed that a defence of qualified privilege did exist under English law, but only where (i) the publisher acted under a legal, moral or social duty to communicate the information; (ii) the recipient of the information had an interest in receiving it; and (iii) the nature, status and source of the material and the circumstances of the publication were such that the publication should be protected in the public interest in the absence of proof of malice. The court accepted that there was a public interest in receiving information about the activities of companies and that the duty to publish was not confined to the mainstream media but could also apply to members of campaign groups, such as London Greenpeace. However, to satisfy the test, the duty to publish had to override the requirement to verify the facts. Privilege was more likely to be extended to a publication that was balanced, properly researched, in measured tones and based on reputable sources. In the instant case, the leaflet “did not demonstrate that care in preparation and research, or reference to sources of high authority or status, as would entitle its publishers to the protection of qualified privilege”.", "English law provided a proper balance between freedom of expression and the protection of reputation and was not inconsistent with Article 10 of the Convention. Campaign groups could perform a valuable role in public life, but they should be able to moderate their publications so as to attract a defence of fair comment without detracting from any stimulus to public discussion which the publication might give. The relaxation of the law contended for would open the way for “partisan publication of unrestrained and highly damaging untruths”, and there was a pressing social need “to protect particular corporate business reputations, upon which the well-being of numerous individuals may depend, from such publications”.", "33. The Court of Appeal further rejected the applicants'contention that the appeal should be allowed on the basis that the action was an abuse of process or that the trial was conducted unfairly, observing as follows:", "“Litigants in person who bring or contest a High Court action are inevitably undertaking a strenuous and burdensome task. This action was complex and the legal advice available to the [applicants] was, because of lack of funds, small in extent. We accept that the work required of the [applicants] at trial was very considerable and had to be done in an environment which, at least initially, was unfamiliar to them.", "As a starting- point, we cannot however hold it to be an abuse of process in itself for plaintiffs with great resources to bring a complicated case against unrepresented defendants of slender means. Large corporations are entitled to bring court proceedings to assert or defend their legal rights just as individuals have the right to bring actions and defend them. ...", "Moreover the proposition that the complexity of the case may be such that a judge ought to stop the trial on that ground cannot be accepted. The rule of law requires that rights and duties under the law are determined. ...", "As to the conduct of the trial, we note that the 313 hearing days were spread over a period of two and a half years. The timetable had proper regard to the fact that the [applicants] were unrepresented and to their other difficulties. They were given considerable time to prepare their final submissions to which they understandably attached considerable importance and which were of great length. For the purpose of preparing closing submissions, the [applicants] had possession of a full transcript of the evidence given at the trial. The fact that, for a part of the trial, the [ applicants ] did not receive transcripts of evidence as soon as they were made does not render the trial unfair. Quite apart from the absence of an obligation to provide a transcript, there is no substantial evidence that the [applicants] were in the event prejudiced by delay in receipt of daily transcripts during a part of the trial.", "On the hearing of the appeal, we have been referred to many parts of the transcripts of evidence and submissions and have looked at other parts on our own initiative. On such references, we have invariably been impressed by the care, patience and fairness shown by the judge. He was well aware of the difficulties faced by the [applicants] as litigants in person and had full regard to them in his conduct of the trial. The [ applicants ] conducted their case forcefully and with persistence as they have in this Court. Of course the judge listened to submissions from the very experienced leading counsel appearing for [McDonald's] but the judge applied his mind robustly and fairly to the issues raised. This emerges from the transcripts and from the judgment he subsequently handed down. The judge was not slow to criticise [McDonald's] in forthright terms when he thought their conduct deserved it. Moreover, it appears to us that the [applicants] were shown considerable latitude in the manner in which they presented their case and in particular in the extent to which they were often permitted to cross-examine witnesses at great length.", "... [We] are quite unpersuaded that the appeal, or any part of it, should be allowed on the basis that the action was an abuse of the process of the Court or that the trial was conducted unfairly.”", "34. The applicants also challenged a number of Bell J's findings about the content of the leaflet, and the Court of Appeal found in their favour on several points, summarised as follows:", "“On the topic of nutrition, the allegation that eating McDonald's food would lead to a very real risk of cancer of the breast and of the bowel was not proved. On pay and conditions we have found that the defamatory allegations in the leaflet were comment.", "In addition to the charges found to be true by the judge – the exploiting of children by advertising, the pretence by the respondents that their food had a positive nutritional benefit, and McDonald's responsibility for cruel practices in the rearing and slaughtering of some of the animals used for their products – the further allegation that, if one eats enough McDonald's food, one's diet may well become high in fat etc., with the very real risk of heart disease, was justified. ... ”", "35. The Court of Appeal therefore reduced the damages payable to McDonald's, so that Ms Steel was now liable for a total of GBP 36,000 and Mr Morris for a total of GBP 40,000. It refused the applicants leave to appeal to the House of Lords.", "36. On 21 March 2000 the Appeal Committee of the House of Lords also refused the applicants leave to appeal." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Defamation", "37. Under English law the object of a libel action is to vindicate the plaintiff's reputation and to make reparation for the injury done by the wrongful publication of defamatory statements concerning him or her.", "38. The plaintiff carries the burden of proving “publication”. As a matter of law ( per Bell J at p. 5 of the judgment in the applicants'case),", "“any person who causes or procures or authorises or concurs in or approves the publication of a libel is as liable for its publication as a person who physically hands it or sends it off to another. It is not necessary to have written or printed the defamatory material. All those jointly concerned in the commission of a tort (civil wrong) are jointly and severally liable for it, and this applies to libel as it does to any other tort ”.", "39. A defence of justification applies where the defamatory statement is substantially true. The burden is on the defendant to prove the truth of the statement on the balance of probabilities. It is no defence to a libel action to prove that the defendant acted in good faith, believing the statement to be true. English law does, however, recognise the defence of “fair comment”, if it can be established that the defamatory statement is comment, and not an assertion of fact, and is based on a substratum of facts, the truth of which the defendant must prove.", "40. As a general principle, a trading or non-trading corporation is entitled to sue in libel to protect as much of its corporate reputation as is capable of being damaged by a defamatory statement. There are certain exceptions to this rule: local authorities, government-owned corporations and political parties, none of which can sue in defamation, because of the public interest that a democratically elected organisation, or a body controlled by such an organisation, should be open to uninhibited public criticism (see Derbyshire County Council v. Times Newspapers Ltd [1993] Appeal Cases 534; British Coal Corporation v. NUM (Yorkshire Area) and Capstick, unreported, 28 June 1996; and Goldsmith and another v. Bhoyrul [1997] 4 All England Law Reports 268).", "B. Legal aid for defamation proceedings", "41. Throughout the relevant time, the allocation of civil legal aid in the United Kingdom was governed by the Legal Aid Act 1988. Under Schedule 2, Part II, paragraph 1 of that Act, “[p]roceedings wholly or partly in respect of defamation” were excepted from the scope of the civil legal aid scheme.", "42. The Access to Justice Act 1999 (“ the AJA 1999”) came into force on 1 April 2000, after the proceedings in the present case had concluded. It sets out the current statutory framework for legal aid in England and Wales, administered by the Legal Services Commission (“the Commission” ), and made a number of reforms, for example, introducing the possibility for conditional fee agreements. Under the AJA 1999 the presumption remains that civil legal aid should not be granted in respect of claims in defamation (paragraph 1(a)(f) of Schedule). However, the Act contains a provision (section 6(8)) to enable discretionary “exceptional funding” of cases which otherwise fall outside the scope of legal aid, allowing the Lord Chancellor, inter alia, to authorise the Commission to grant legal aid to an individual defamation litigant, following a request from the Commission.", "The Lord Chancellor has issued guidance to the Commission as to the types of case he is likely to consider favourably, stressing that such cases are likely to be extremely unusual given that Parliament has already decided in the AJA 1999 that the types of case excepted from the legal aid scheme are of low priority. As well as financial eligibility for legal aid, the Commission must be satisfied either that “there is a significant wider public interest ... in the resolution of the case and funded representation will contribute to it”, or that the case “is of overwhelming importance to the client”, or that “there is convincing evidence that there are other exceptional circumstances such that without public funding for representation it would be practically impossible for the client to bring or defend the proceedings, or the lack of public funding would lead to obvious unfairness in the proceedings”.", "43. The normal rule in civil proceedings in England and Wales, including defamation proceedings, is that the loser pays the reasonable costs of the winner. This rule applies whether either party is legally aided or not. An unsuccessful privately paying party would usually be ordered to pay the legal costs of a successful legally aided opponent. However, an unsuccessful legally aided party is usually protected from paying the costs of a successful privately paying party, because the costs order made against the loser will not usually be enforceable without further order of the court, which is likely to be granted only in the event of a major improvement in the financial circumstances of the legally aided party.", "C. Mode of trial", "44. The Supreme Court Act 1981 provides in section 69:", "“(1) Where, on the application of any party to an action to be tried in the Queen's Bench Division, the court is satisfied that there is in issue –", "a claim in respect of libel, slander ...", "the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury .”", "D. Damages", "45. The measure of damages for defamation is the amount that would put the plaintiff in the position he or she would have been in had the wrongdoing not been committed. The plaintiff does not have to prove that he has suffered any actual pecuniary loss: it is for the jury (or judge, if sitting alone) to award a sum of damages sufficient to vindicate the plaintiff's reputation and to compensate for injury to feelings.", "46. The Civil Procedure Rules (RSC, Ord. 46, rule 2(1)(a)) provide that leave of the court is required in order to enforce a judgment after a delay of six years or more. Leave to issue execution is usually refused after the expiration of six years from the date on which the judgment became enforceable (see National Westminster Bank plc v. Powney [1991] Chancery Division 339, [1990] 2 All England Law Reports 416, Court of Appeal, and W.T. Lamb & Sons v. Rider [1948] 2 King's Bench Reports 331, [1948] 2 All England Law Reports 402, Court of Appeal ).", "COMPLAINTS", "47. The Court declared a number of the applicants'complaints inadmissible in its partial decision of 22 October 2002. The remaining complaints are, under Article 6 § 1 of the Convention, that the proceedings were unfair, principally because of the denial of legal aid, and, under Article 10, that the proceedings and their outcome constituted a disproportionate interference with the applicants'right to freedom of expression.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "48. The applicants raised a number of issues under Article 6 § 1 of the Convention, which provides:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "The applicants'principal complaint under this provision was that they were denied a fair trial because of the lack of legal aid. They also alleged that unfairness was caused as a result of the trial judge's ruling to admit as evidence an affidavit sworn by the second applicant, his refusal to allow adjournments on a number of occasions and his granting of permission to McDonald's to amend their pleadings at a late stage in the proceedings.", "A. Legal Aid", "1. The parties'submissions", "( a ) The applicants", "49. The applicants pointed out that this was the longest trial, either civil or criminal, in English legal history. The entire length of the proceedings, from the issue of the writ on 20 September 1990 to the refusal by the House of Lords of leave to appeal on 21 March 2000, was nine years and six months. Before the trial started there were 28 pre-trial hearings, some of which lasted up to five days. The hearing before the High Court lasted from 28 June 1994 until 13 December 1996, a period of two years and six months, of which 313 days were spent in court, together with additional days in the Court of Appeal to contest rulings made in the course of the trial. The High Court proceedings involved about 40,000 pages of documentary evidence and 130 oral witnesses. The appeal hearing lasted 23 days. Overall, the case included over 100 days of legal argument. The transcripts of the hearings exceeded 20,000 pages.", "50. The adversarial system in the United Kingdom is based on the idea that justice can be achieved if the parties to a legal dispute are able to adduce their evidence and test their opponent's evidence in circumstances of reasonable equality. At the time of the proceedings in question, McDonald's economic power outstripped that of many small countries (they enjoyed worldwide sales amounting to approximately 30 billion United States dollars in 1995), whereas the first applicant was a part-time bar worker earning a maximum of GBP 65 a week and the second applicant was an unwaged single parent. The inequality of arms could not have been greater. McDonald's were represented throughout by Queen's Counsel and junior counsel specialising in libel law, supported by a team of solicitors and administrative staff from one of the largest firms in England. The applicants were assisted by lawyers working pro bono, who drafted their defence and represented them, during the 28 pre-trial hearings and appeals which took place over 37 court days, on eight days and in connection with five applications. During the main trial, submissions were made by lawyers on their behalf on only three occasions. It was difficult for sympathetic lawyers to volunteer help, because the case was too complicated for someone else just to “dip into”, and moreover the offers of help usually came from inexperienced, junior solicitors and barristers, without the time and resources to be effective.", "51. The applicants bore the burden of proving the truth of a large number of allegations covering a wide range of difficult issues. In addition to the more obvious disadvantages of being without experienced counsel to argue points of law and to conduct the examination and cross-examination of witnesses in court, they had lacked sufficient funds for photocopying, purchasing the transcripts of each day's proceedings, tracing and proofing expert witnesses, paying the witnesses'costs and travelling expenses and note-taking in court. All they could hope to do was keep going: on several occasions during the trial they had to seek adjournments because of physical exhaustion.", "52. They claimed that, had they been provided with legal aid with which to trace, prepare and pay the expenses of witnesses, they would have been able to prove the truth of one or more of the charges found to have been unjustified, for example, the allegations on diet and degenerative disease, food safety, hostility to trade unionism and/or that some of McDonald's international beef supplies came from recently deforested areas. Moreover, the applicants'inexperience and lack of legal training led them to make a number of procedural mistakes. Had they been represented, it is unlikely that they would have withdrawn all but one of their grounds on the interim appeal ( see paragraph 2 3 above) or that the Haringey affidavit would have been admitted in evidence (see paragraph 2 1 above ), and it was mainly on the basis of the mistake contained in that affidavit that the second applicant was found to have been involved in the publication of the leaflet.", "( b ) The Government", "53. The Government submitted that the Court should be slow to impose a duty to provide legal aid in civil cases, in view of the deliberate omission of any such obligation from the Convention. In contrast to the position in criminal proceedings (Article 6 § 3 (c)), the Convention left Contracting States with a free choice of the means of ensuring effective civil access to court (the Government relied on Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, pp. 14 -16, § 26). States did not have unlimited resources to fund legal aid systems, and it was therefore legitimate to impose restrictions on eligibility for legal aid in certain types of low priority civil cases, provided such restrictions were not arbitrary ( see Winer v. the United Kingdom, no. 10871/84, Commission decision of 10 July 1986, Decisions and Reports (DR) 48, p. 154, at pp. 171 -72 ).", "54. The Convention organs had considered the non-availability of legal aid in defamation cases under English law in six cases, and had never found it to be in breach of Article 6 § 1 (see Winer, cited above; Munro v. the United Kingdom, no. 10594/83, Commission decision of 14 July 1987, DR 52, p. 158; H.S. and D.M. v. the United Kingdom, no. 213 25/93, Commission decision of 5 May 1993, unreported; Stewart- Brady v. the United Kingdom, nos. 27436/95 and 28406/95, Commission decision of 2 July 1997, DR 90-A, p. 45; McVicar v. the United Kingdom, no. 46311/99, ECHR 2002 -III; and A. v. the United Kingdom, no. 35373/97, ECHR 2002 -X ).", "55. The Court should not depart from this consistent jurisprudence in the present case, which, in the Government's submission, fell far short of the kind of exceptional circumstances where the provision of legal aid was “indispensable for effective access to court” ( see Airey, cited above, pp. 14 ‑ 16, § 26).", "56. First, the Government argued that the law and facts in issue in the litigation were not so difficult as to make legal aid essential. The applicants'conduct of their defence and counter-claim, and their success in proving many of the allegations made in the leaflet, demonstrated that they were capable of mastering any complexities of the law of defamation as it applied to them.", "57. Furthermore, the Government contended that it was relevant that the applicants received advice and representation pro bono on a number of occasions, particularly for some of their appearances in the Court of Appeal and in drafting their pleadings. It appeared that the applicants also raised at least GBP 40,000 to fund their defence and that they received help with note-taking and other administrative tasks from volunteers sympathetic to their cause. Both Bell J and the Court of Appeal took into account the applicants'lack of legal training: Bell J, for example, assisted the applicants by reformulating questions for witnesses and did not insist on the usual procedural formalities, such as limiting the case to that pleaded; the Court of Appeal took note in its judgment of the need to safeguard the applicants from their lack of legal skill, conducted its own research to supplement the submissions made by the applicants and allowed them to introduce the defence of fair comment at the appeal stage, even though it had not been raised at first instance. The applicants intended the case to achieve maximum publicity, which it did. The hearings before the High Court and Court of Appeal took so long because the applicants were afforded every possible latitude in the presentation of their case; their evidence and submissions took up the great bulk of the time.", "58. In the Government's submission it could not be assumed, in any event, that had legal aid generally been available for the defence of defamation actions, the applicants would have been granted it. The then Legal Aid Board (now the Legal Services Commission) would have had to make a decision, as it does in civil cases where legal aid is available, based on factors such as the merits of the case and whether the costs of litigation would be justified by the likely benefit to the aided party. The applicants published defamatory material without prior justification, and the tax - payer should not be required to pay for the research the applicants should have carried out before publishing the leaflet, or to bear the burden of placing the applicants in a position of equality with McDonald's, which was estimated to have spent in excess of GBP 10 million on legal expenses.", "2. The Court's assessment", "59. The Court reiterates that the Convention is intended to guarantee practical and effective rights. This is particularly so of the right of access to a court in view of the prominent place held in a democratic society by the right to a fair trial (see Airey, cited above, pp. 12-14, § 24). It is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court (ibid.) and that he or she is able to enjoy equality of arms with the opposing side (see, among many other examples, De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports of Judgments and Decisions 1997-I, p. 238, § 53).", "60. Article 6 § 1 leaves to the State a free choice of the means to be used in guaranteeing litigants the above rights. The institution of a legal aid scheme constitutes one of those means but there are others, such as for example simplifying the applicable procedure (see Airey, pp. 14 -16, § 26, and McVicar, § 50, both cited above ).", "61. The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant's capacity to represent him or herself effectively ( see Airey, pp. 14 -16, § 26; McVicar, §§ 48 and 50; P., C. and S. v. the United Kingdom, no. 56547/00, § 91, ECHR 2002-VI; and also Munro, cited above ).", "62. The right of access to a court is not, however, absolute and may be subject to restrictions, provided that these pursue a legitimate aim and are proportionate (see Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, pp. 24-25, § 57). It may therefore be acceptable to impose conditions on the grant of legal aid based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings (see Munro, cited above ). Moreover, it is not incumbent on the State to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary (see De Haes and Gijsels, p. 238, § 53, and also McVicar, §§ 51 and 62, both cited above ).", "63. The Court must examine the facts of the present case with reference to the above criteria.", "First, as regards what was at stake for the applicants, it is true that, in contrast to certain earlier cases where the Court has found legal assistance to have been necessary for a fair trial (for example, Airey and P., C. and S. v. the United Kingdom, both cited above), the proceedings in issue here were not determinative of important family rights and relationships. The Convention organs have observed in the past that the general nature of a defamation action, brought to protect an individual's reputation, is to be distinguished, for example, from an application for judicial separation, which regulates the legal relationship between two individuals and may have serious consequences for any children of the family (see McVicar, § 61, and Munro, both cited above ).", "However, it must be recalled that the applicants did not choose to commence defamation proceedings, but acted as defendants to protect their right to freedom of expression, a right accorded considerable importance under the Convention ( see paragraph 8 7 below ). Moreover, the financial consequences for the applicants of failing to verify each defamatory statement complained of were significant. McDonald's claimed damages up of to GBP 100,000 and the awards actually made, even after reduction by the Court of Appeal, were high when compared to the applicants'low incomes: GBP 36,000 for the first applicant, who was, at the time of the trial, a bar worker earning approximately GBP 65 a week, and GBP 40,000 for the second applicant, an unwaged single parent (see paragraphs 9, 1 4 and 3 5 above). McDonald's have not, to date, attempted to enforce payment of the awards, but this was not an outcome which the applicants could have foreseen or relied upon.", "64. As for the complexity of the proceedings, the Court notes its finding in McVicar (cited above, § 5 5 ) that the English law of defamation and rules of civil procedure applicable in that case were not sufficiently complex as to necessitate the granting of legal aid. The proceedings defended by Mr McVicar required him to prove the truth of a single, principal allegation, on the basis of witness and expert evidence, some of which was excluded as a result of his failure to comply with the rules of court. He had also to scrutinise evidence submitted on behalf of the plaintiff and to cross-examine the plaintiff's witnesses and experts, in the course of a trial which lasted just over two weeks.", "65. The proceedings defended by the present applicants were of a quite different scale. The trial at first instance lasted 313 court days, preceded by 28 interlocutory applications. The appeal hearing lasted 23 days. The factual case the applicants had to prove was highly complex, involving 40,000 pages of documentary evidence and 130 oral witnesses, including a number of experts dealing with a range of scientific questions, such as nutrition, diet, degenerative disease and food safety. Certain of the issues were held by the domestic courts to be too complicated for a jury properly to understand and assess. The detailed nature and complexity of the factual issues are further illustrated by the length of the judgments of the trial court and the Court of Appeal, which ran in total to over 1,100 pages (see, inter alia, paragraphs 1 8, 1 9, 30 and 49 above).", "66. Nor was the case straightforward legally. Extensive legal and procedural issues had to be resolved before the trial judge was in a position to decide the main issue, including the meanings to be attributed to the words of the leaflet, the question whether the applicants were responsible for its publication, the distinction between fact and comment, the admissibility of evidence and the amendment of the statement of claim. Overall, some 100 days were devoted to legal argument, resulting in 38 separate written judgments (ibid.).", "67. Against this background, the Court must assess the extent to which the applicants were able to bring an effective defence despite the absence of legal aid. In McVicar (cited above, §§ 53 and 60), it placed weight on the facts that Mr McVicar was a well-educated and experienced journalist, and that he was represented during the pre-trial and appeal stages by a solicitor specialising in defamation law, from whom he could have sought advice on any aspects of the law or procedure of which he was unsure.", "68. The present applicants appear to have been articulate and resourceful; in the words of the Court of Appeal, they conducted their case “forcefully and with persistence” ( see paragraph 3 3 above ), and they succeeded in proving the truth of a number of the statements complained of. It is not in dispute that they could not afford to pay for legal representation themselves, and that they would have fulfilled the financial criteria for the granting of legal aid. They received some help on the legal and procedural aspects of the case from barristers and solicitors acting pro bono : their initial pleadings were drafted by lawyers, they were given some advice on an ad hoc basis, and they were represented during five of the pre-trial hearings and on three occasions during the trial, including the appeal to the Court of Appeal against the trial judge's granting of leave to McDonald's to amend the statement of claim ( see paragraph 1 6 above). In addition, they were able to raise a certain amount of money by donation, which enabled them, for example, to buy transcripts of each day's evidence 25 days later ( ibid. ). For the bulk of the proceedings, however, including all the hearings to determine the truth of the statements in the leaflet, they acted alone.", "69. The Government have laid emphasis on the considerable latitude afforded to the applicants by the judges of the domestic courts, both at first instance and on appeal, in recognition of the disadvantages the applicants faced. However, the Court considers that, in an action of this complexity, neither the sporadic help given by the volunteer lawyers nor the extensive judicial assistance and latitude granted to the applicants as litigants in person was any substitute for competent and sustained representation by an experienced lawyer familiar with the case and with the law of libel (cf. P., C. and S. v. the United Kingdom, cited above, §§ 93-95 and 99 ). The very length of the proceedings is, to a certain extent, a testament to the applicants'lack of skill and experience. It is, moreover, possible that had the applicants been represented they would have been successful in one or more of the interlocutory matters of which they specifically complain, such as the admission in evidence of the Haringey affidavit (see paragraph 2 1 above). Finally, the disparity between the respective levels of legal assistance enjoyed by the applicants and McDonald's (see paragraph 16 above ) was of such a degree that it could not have failed, in this exceptionally demanding case, to have given rise to unfairness, despite the best efforts of the judges at first instance and on appeal.", "70. It is true that the Commission declared inadmissible an earlier application under, inter alia, Article 6 § 1 by these same applicants ( see H.S. and D.M. v. the United Kingdom, cited above ), observing that “they seem to be making a tenacious defence against McDonald's, despite the absence of legal aid ... ”. That decision was, however, adopted over a year before the start of the trial, at a time when the length, scale and complexity of the proceedings could not reasonably have been anticipated.", "71. The Government argued that, even if legal aid had been in principle available for the defence of defamation actions, it might well not have been granted in a case of this kind, or the amount awarded might have been capped or the award made subject to other conditions. The Court is not, however, persuaded by this argument. It is, in the first place, a matter of pure speculation whether, if legal aid had been available, it would have been granted in the applicants'case. More importantly, if legal aid had been refused or made subject to stringent financial or other conditions, substantially the same Convention issue would have confronted the Court, namely whether the refusal of legal aid or the conditions attached to its granting were such as to impose an unfair restriction on the applicants'ability to present an effective defence.", "72. In conclusion, therefore, the Court finds that the denial of legal aid to the applicants deprived them of the opportunity to present their case effectively before the court and contributed to an unacceptable inequality of arms with McDonald's. There has, therefore, been a violation of Article 6 § 1 of the Convention.", "B. Other complaints under Article 6 § 1", "73. The applicants also alleged that a number of specific rulings made by the judges in the proceedings caused unfairness in breach of Article 6 § 1. Thus, they complained that the circumstances surrounding the admission in evidence of the Haringey affidavit (see paragraph 2 1 above ) had been unfairly prejudicial, as had Bell J's refusal to grant adjournments on a number of occasions and his decision to allow McDonald's to amend their statement of claim ( see paragraph 2 4 above ).", "74. The Government denied that any unfairness had been caused by these rulings, which had instead struck a fair balance between the opposing litigants.", "75. To the extent that these particular complaints have merit, the Court considers that they are subsumed within the principal complaint about lack of legal aid, since, even if it had not led to a different result, legal representation might have mitigated the effect on the applicants of the rulings in question.", "76. In view of the above finding of a violation of Article 6 § 1 based on the lack of legal aid, the Court does not consider it necessary to examine separately these additional complaints.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "77. The applicants also complained of a breach of Article 10 of the Convention, which provides:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. The parties'submissions", "1. The applicants", "78. The applicants emphasised the inter-relationship between Articles 6 and 10 of the Convention and claimed that the domestic proceedings and their outcome were disproportionate given, inter alia, that, without legal aid, they bore the burden of proving the truth of the matters set out in the leaflet.", "79. This burden was contrary to Article 10. The issues raised in the leaflet were matters of public interest and it was essential in a democracy that such matters be freely and openly discussed. To require strict proof of every allegation in the leaflet was contrary to the interests of democracy and plurality because it would compel those without the means to undertake court proceedings to withdraw from public debate. The reasons under English law for permitting wider criticism of government bodies applied equally to criticism of large multinationals, particularly given that their vast economic power was coupled with a lack of accountability. In this regard, the applicants prayed in aid the principle in English law that local authorities, government-owned corporations and political parties could not sue in defamation (see paragraph 40 above).", "80. Moreover, it was significant that the applicants were not the authors of the leaflet. It was almost impossible for campaigners to prove the truth of the contents of a campaigning leaflet dealing with global issues that they were merely involved in distributing. In any event, the matters contained in the leaflet were already in the public domain and had, with only minor amendments, been set out in a leaflet printed and distributed by Veggies, to which McDonald's did not object ( see paragraph 2 6 above). The applicants bore no malice against McDonald's and genuinely believed that the statements in the leaflet were true.", "81. Finally, the applicants submitted that the damages awarded were excessive and quite beyond their means of paying. It was contrary to the freedom of expression for the law to presume damage without the need for McDonald's to show any loss of sales as a result of the publication.", "2. The Government", "82. The Government contended that the applicants in the present case were not responsible journalists, but participants in a campaign group carrying out a vigorous attack on McDonald's. There had been no attempt on their part to present a balanced picture, for example by giving McDonald's an opportunity to defend itself, and there was no suggestion that the applicants had carried out any research before publication. Domestic law was not arbitrary in allocating the burden of proving justification on the defendant. On the contrary, it reflected the ordinary principle that the party who asserts a particular fact should have to prove it. In many cases it would be unreasonable to expect a plaintiff to have to prove a negative, that a given allegation was untrue. Having taken it upon him or herself to publish a statement, it was not unreasonable to expect that the defendant should bear the limited burden of having to adduce evidence which showed, on the balance of probabilities, that the statement was true.", "83. The Government rejected the applicants'argument that the ability of multinational corporations, such as McDonald's, to defend their reputations by bringing defamation claims amounted to a disproportionate restriction on the ability of individuals to exercise their right to freedom of expression. They denied that there was a parallel to be drawn with the position under domestic law whereby government bodies and political parties are unable to sue for defamation: this bar was justified for the protection of the democratic process, which required free, critical expression. The reputation of a large company might be vital for its commercial success, and the commercial success of companies of all sizes was important to society for a variety of reasons, such as fostering wealth creation, expanding the tax base and creating employment. Furthermore, the applicants'proposal that “multinational companies” should have no legal protection for their reputations was unworkably vague and it would be difficult to draft and operate legislation to that effect. Their alternative suggestion, that multinationals should have to prove loss, was also misconceived. The vindication of a plaintiff's reputation was a legitimate aim in itself and it would place enormous evidential burdens on both sides if economic loss were to become a material issue.", "84. It was irrelevant that certain of the defamatory statements had already been published, for example in the Veggies leaflet. A statement did not become true simply through repetition, and, even where a statement was in wide circulation and had been published by a number of authors, the defamed party must be free to take proceedings against whomever he, she or it chose.", "B. The Court's assessment", "85. It was not disputed between the parties that the defamation proceedings and their outcome amounted to an interference, for which the State had responsibility, with the applicants'rights to freedom of expression.", "86. It is further not disputed, and the Court finds, that the interference was “prescribed by law”. The Court further finds that the English law of defamation, and its application in this particular case, pursued the legitimate aim of “the protection of the reputation or rights of others”.", "87. The central issue which falls to be determined is whether the interference was “necessary in a democratic society”. The fundamental principles relating to this question are well established in the case-law and have been summarised as follows (see, for example, Hertel v. Switzerland, judgment of 25 August 1998, Reports 1998-VI, pp. 2329-30, § 46):", "“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to'information'or'ideas'that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no'democratic society'. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...", "(ii) The adjective'necessary', within the meaning of Article 10 § 2, implies the existence of a'pressing social need'. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a'restriction'is reconcilable with freedom of expression as protected by Article 10.", "(iii) The Court's task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was'proportionate to the legitimate aim pursued'and whether the reasons adduced by the national authorities to justify it are'relevant and sufficient'... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ... ”", "In its practice, the Court has distinguished between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. Where a statement amounts to a value judgment the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive (see, for example, Feldek v. Slovakia, no. 29032/95, §§ 75-76, ECHR 2001-VIII).", "88. The Court must weigh a number of factors in the balance when reviewing the proportionality of the measure complained of. First, it notes that the leaflet in question contained very serious allegations on topics of general concern, such as abusive and immoral farming and employment practices, deforestation, the exploitation of children and their parents through aggressive advertising and the sale of unhealthy food. The Court has long held that “political expression”, including expression on matters of public interest and concern, requires a high level of protection under Article 10 (see, for example, Thorgeir Thorgeirson v. Iceland, judgment of 25 June 1992, Series A no. 239, and also Hertel, cited above, p. 2330, § 47 ).", "89. The Government have pointed out that the applicants were not journalists, and should not therefore attract the high level of protection afforded to the press under Article 10. The Court considers, however, that in a democratic society even small and informal campaign groups, such as London Greenpeace, must be able to carry on their activities effectively and that there exists a strong public interest in enabling such groups and individuals outside the mainstream to contribute to the public debate by disseminating information and ideas on matters of general public interest such as health and the environment (see, mutatis mutandis, Bowman v. the United Kingdom, judgment of 19 February 1998, Reports 1998-I, and Appleby and Others v. the United Kingdom, no. 44306/98, ECHR 2003 ‑ VI ).", "90. Nonetheless, the Court has held on many occasions that even the press “ must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information ... ” (see, for example, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/03, § 59, ECHR 1999-III). The safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism ( Bladet Tromsø and Stensaas, § 65), and the same principle must apply to others who engage in public debate. It is true that the Court has held that journalists are allowed “recourse to a degree of exaggeration, or even provocation” ( see, for example, Bladet Tromsø and Stensaas, § 59, or Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313, p. 19, § 38), and it considers that in a campaigning leaflet a certain degree of hyperbole and exaggeration is to be tolerated, and even expected. In the present case, however, the allegations were of a very serious nature and were presented as statements of fact rather than value judgments.", "91. The applicants deny that either was involved in the production of the leaflet ( despite the High Court's finding to the contrary – see paragraph 2 6 above) and stress that they genuinely believed the leaflet's content to be true (see the High Court's finding in paragraph 2 8 above ). They claim that it places an intolerable burden on campaigners such as themselves, and thus stifles public debate, to require those who merely distribute a leaflet to bear the burden of establishing the truth of every statement contained in it. They also argue that large multinational companies should not be entitled to sue in defamation, at least without proof of actual financial damage. Complaint is further made of the fact that under the law McDonald's were able to bring and succeed in a claim for defamation when much of the material included in the leaflet was already in the public domain.", "92. As to this last argument, the Court notes that a similar contention was examined and rejected by the Court of Appeal on the ground either that the material relied on did not support the allegations in the leaflet or that the other material was itself lacking in justification. The Court finds no reason to reach a different conclusion.", "93. As to the complaint about the burden of proof, the Court notes that in McVicar ( cited above, § 87) it held that it was not in principle incompatible with Article 10 to place on a defendant in libel proceedings the onus of proving to the civil standard the truth of defamatory statements. The Court there referred to Bladet Tromsø and Stensaas, in which it commented that special grounds were required before a newspaper could be dispensed from its ordinary obligation to verify factual statements ( McVicar, § 8 4 ).", "94. The Court further does not consider that the fact that the plaintiff in the present case was a large multinational company should in principle deprive it of a right to defend itself against defamatory allegations or entail that the applicants should not have been required to prove the truth of the statements made. It is true that large public companies inevitably and knowingly lay themselves open to close scrutiny of their acts and, as in the case of the businessmen and women who manage them, the limits of acceptable criticism are wider in the case of such companies (see Fayed v. the United Kingdom, judgment of 21 September 1994, Series A no. 294-B, p. 53, § 75). However, in addition to the public interest in open debate about business practices, there is a competing interest in protecting the commercial success and viability of companies, for the benefit of shareholders and employees, but also for the wider economic good. The State therefore enjoys a margin of appreciation as to the means it provides under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation (see markt intern Verlag GmbH and Klaus Beermann v. Germany, judgment of 20 November 1989, Series A no. 165, pp. 19-21, §§ 33-38).", "95. If, however, a State decides to provide such a remedy to a corporate body, it is essential, in order to safeguard the countervailing interests in free expression and open debate, that a measure of procedural fairness and equality of arms is provided for. The Court has already found that the lack of legal aid rendered the defamation proceedings unfair, in breach of Article 6 § 1. The inequality of arms and the difficulties under which the applicants laboured are also significant in assessing the proportionality of the interference under Article 10. As a result of the law as it stood in England and Wales, the applicants had the choice either to withdraw the leaflet and apologise to McDonald's, or bear the burden of proving, without legal aid, the truth of the allegations contained in it. Given the enormity and complexity of that undertaking, the Court does not consider that the correct balance was struck between the need to protect the applicants'rights to freedom of expression and the need to protect McDonald's rights and reputation. The more general interest in promoting the free circulation of information and ideas about the activities of powerful commercial entities, and the possible “chilling” effect on others are also important factors to be considered in this context, bearing in mind the legitimate and important role that campaign groups can play in stimulating public discussion (see, for example, Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 27, § 4 4; Bladet Tromsø and Stensaas, cited above, § 64; and Thorgeir Thorgeirson, cited above, p.28, § 68). The lack of procedural fairness and equality therefore gave rise to a breach of Article 10 in the present case.", "96. Moreover, the Court considers that the size of the award of damages made against the two applicants may also have failed to strike the right balance. Under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered (see Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316-B, pp. 75-76, § 49). The Court notes on the one hand that the sums eventually awarded in the present case ( GBP 36,000 in the case of the first applicant and GBP 40,000 in the case of the second applicant), although relatively moderate by contemporary standards in defamation cases in England and Wales, were very substantial when compared to the modest incomes and resources of the two applicants. While accepting, on the other hand, that the statements in the leaflet which were found to be untrue contained serious allegations, the Court observes that not only were the plaintiffs large and powerful corporate entities but that, in accordance with the principles of English law, they were not required to, and did not, establish that they had in fact suffered any financial loss as a result of the publication of the “several thousand” copies of the leaflets found by the trial judge to have been distributed (see paragraph 4 5 above and compare, for example, Hertel, cited above, p. 2331, § 49 ).", "97. While it is true that no steps have to date been taken to enforce the damages award against either applicant, the fact remains that the substantial sums awarded against them have remained enforceable since the decision of the Court of Appeal. In these circumstances, the Court finds that the award of damages in the present case was disproportionate to the legitimate aim served.", "98. In conclusion, given the lack of procedural fairness and the disproportionate award of damages, the Court finds that there has been a violation of Article 10 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "99. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Pecuniary damage", "100. The applicants claimed that, had their rights under Articles 6 and 10 of the Convention been adequately protected by the State, they would not have had to defend themselves throughout the entire defamation proceedings, which continued over nine years. They claimed payment for the legal work they had to carry out, at the rate applicable for litigants in person under the Civil Procedure Rules, namely GBP 9.25 per hour, plus reasonable travelling expenses. Using this rate, they calculated that they should each be reimbursed GBP 21,478.50 in respect of the 387 days each spent in court, together with GBP 100,233.00 each for preparation. Their total, joint claim for domestic legal costs therefore came to GBP 243,423.00, to which had to be added GBP 31,194.84 for expenses and disbursements such as photocopying, transcripts, telephone calls and travelling.", "101. The applicants also asked the Court to ensure in its judgment that if McDonald's were ever successful in enforcing the GBP 40,000 award of damages against them, the respondent State should be required to reimburse the sum paid.", "102. The Government commented that the amounts claimed by the applicants in respect of their court appearances and preparatory work did not reflect costs actually incurred by them or money actually lost as a result of the alleged violations of Articles 6 § 1 and 10. Had the applicants been awarded legal aid for their defence, the legal aid monies would have been paid to their legal representatives; under no circumstances would legal aid have constituted financial remuneration for the applicants themselves. As for the expenses claimed by the applicants, it was a matter of pure speculation whether and to what extent, if legal aid had been available, these expenses would have been covered by public funds.", "103. As for the applicants'request for a “rider” to cover their liability should McDonald's decide to enforce the claim for damages, the Government submitted that this was not a concept known to international law and that such an order would be contrary to the parties'legitimate interest in the finality of litigation.", "104. The Court notes that the applicants have not presented any evidence to suggest that the time they spent preparing and presenting their defence in the defamation proceedings caused them any actual pecuniary loss; it has not been suggested, for example, that either applicant lost earnings as a result of the lack of legal aid. They have filed an itemised claim in respect of expenses and disbursements, but they do not allege that their expenses exceeded the amount they were able to raise by voluntary donation (see paragraph 1 6 above). The Court is not, therefore, satisfied that the sums claimed represented losses or expenses actually incurred.", "105. It further notes that, because of the period of time that has elapsed since the order for damages was made against the applicants, McDonald's would need the leave of the court before it could proceed to enforce the award (see paragraph 4 6 above). In these circumstances, despite its finding that the award of damages was disproportionate and in breach of Article 10, the Court does not consider it necessary to make any provision in respect of it under Article 41 at the present time.", "106. In conclusion, therefore, the Court makes no award in respect of compensation for pecuniary damage.", "B. Non-pecuniary damage", "107. The applicants claimed that, during the period of over nine years in which they were defending the defamation action against such a powerful adversary, they had suffered considerable stress and anxiety. They had felt a responsibility to defend the case to the utmost because of the importance of the issues raised and the necessity of public debate. In consequence, they had been forced to sacrifice their health and their personal and family lives. Ms Steel provided the Court with doctors'letters from March 1995 and March 1996 stating that she was suffering from a stress-related illness aggravated by the proceedings. Mr Morris, a single parent, had been unable to spend as much time as he would have wished with his young son. Ms Steel claimed GBP 15,000 under this head and Mr Morris claimed GBP 10,000.", "108. The Government submitted that, in accordance with the Court's practice in the great majority of cases involving breaches of Article 10 and procedural breaches of Article 6, it was not necessary to make an award of compensation for non-pecuniary damage. There was no evidence that the applicants had suffered more stress than any individual, represented or not, involved in litigation and it was a matter of pure speculation whether and by how much the stress would have been reduced if the violations of Articles 6 and 10 had not taken place. In any event, the amounts claimed were excessive when compared with other past awards for serious violations of the Convention.", "109. The Court has found violations of Articles 6 § 1 and 10 based, principally, on the fact that the applicants had to carry out themselves the bulk of the legal work in these exceptionally long and difficult proceedings to defend their rights to freedom of expression. In these circumstances the applicants must have suffered anxiety and disruption to their lives far in excess of that experienced by a represented litigant, and the Court also notes in this connection the medical evidence submitted by Ms Steel. It awards compensation for non-pecuniary damage of 20 ,000 euros (EUR) to the first applicant and EUR 1 5 ,000 to the second applicant.", "C. Strasbourg costs and expenses", "110. The applicants were represented before the Court by leading and junior counsel and a senior and assistant solicitor.", "Both counsel claimed to have spent several hundred hours on the case, but, in order to keep costs within a reasonable limit, decided to halve their hourly rates (to GBP 125 and GBP 87.50 respectively) and to claim for only 115 hours'work for leading counsel and 75 hours'work for junior counsel. In addition, leading counsel claimed GBP 5,000 for preparing for and representing the applicants at the hearing on 7 September 2004, and junior counsel claimed GBP 2,500 for the hearing. The total fees for leading counsel were GBP 19,375 plus value-added tax (VAT ), and those of junior counsel were GBP 9,062.50 plus VAT.", "Despite having invested approximately 45 hours in the case, the senior solicitor claimed for only 25 hours and halved his hourly rate to GBP 175. He also claimed GBP 2,000 in respect of the hearing. The assistant solicitor claimed to have spent over 145 hours on the case, but claimed for 58 hours'work, at GBP 75 per hour, half her usual rate. She claimed GBP 1,500 for the hearing. The senior solicitor's total costs came to GBP 6,375 plus VAT, and those of the assistant solicitor came to GBP 5,850 plus VAT.", "In addition, the applicants made a claim under this head for some of the work they had carried out in connection with the proceedings before the Court, namely 150 hours each at GBP 9.25 per hour: a total of GBP 2,775.", "Finally, they claimed a total of GBP 3,330 travelling and accommodation expenses for the hearing in respect of the four lawyers and two applicants.", "The total claim for costs and expenses under this head came to GBP 4 6, 76 7.50, plus VAT.", "111. The Government considered the use of four lawyers to have been unreasonable and excessive. They submitted that the costs and travelling expenses of senior counsel and one of the solicitors should be disallowed. The applicants were not entitled to claim any costs in respect of the work they had carried out, since this part of the claim did not represent pecuniary loss actually incurred.", "112. The Court reiterates that only such costs and expenses as were actually and necessarily incurred in connection with the violation or violations found, and reasonable as to quantum, are recoverable under Article 41 of the Convention (see, for example, Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003 -VIII ). It follows that it cannot make an award under this head in respect of the hours the applicants themselves spent working on the case, as this time does not represent costs actually incurred by them (see Dudgeon v. the United Kingdom (Article 50), judgment of 24 February 1983, Series A no. 59, p. 10, § 22, and Robins v. the United Kingdom, judgment of 23 September 1997, Reports 1997-V, pp. 1811-12, § § 42- 44). It is clear from the length and detail of the pleadings submitted by the applicants that a great deal of work was carried out on their behalf, but in view of the relatively limited number of relevant issues, it is questionable whether the entire sum claimed for costs was necessarily incurred. In the light of all the circumstances, the Court awards EUR 50,000 under this head, less the EUR 2,688.83 already paid in legal aid by the Council of Europe, together with any tax that may be chargeable.", "D. Default interest", "113. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1961 and lives in Baku. He was represented by Mr R. Hajili and Mrs Z. Sadigova, lawyers based in Strasbourg and Baku respectively.", "3. The Government were represented by their Agent, Mr Ç. Əsgərov.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "Relevant background", "5. The applicant was a journalist and editor of the newspaper Azadlıq.", "6. Gabala Radar Station, which first became operational in 1985, was a Soviet military early warning radar located in the Gabala region of Azerbaijan. It had a range of about 6,000 km and was designed to detect missile launches from as far away as the Indian Ocean. After the dissolution of the Soviet Union, the station became the property of Azerbaijan, but was operated by Russia under a lease agreement until 2012. In 2012, after the events of the present case, the station was closed and all equipment was transported to Russia.", "7. By an order of 26 February 2001 the President of Azerbaijan appointed the Azerbaijani side of a joint Azerbaijani-Russian commission (“the Commission”) for the purpose of assessing the station’s impact on the environment and public health. The Minister of Healthcare was appointed as Chairman of the Commission. By an order of 20 June 2003 the President appointed the Azerbaijani side of a joint commission on monitoring public health and the environment in connection with the station’s activity, with the Minister of Healthcare as the chairman but with the rest of the commission’s composition different from that created by the order of 26 February 2001.", "8. According to the applicant, independent studies showed that the station caused serious public-health problems in the Gabala District and nearby districts.", "Application no. 19925/12", "9. On 27 July 2010 the applicant wrote, on his own behalf, to the Ministry of Healthcare, specifying that he was the editor of Azadlıq and, with reference to the Law on access to information of 30 September 2005 (“the Law on Access to Information”), requesting the following “information and documents”:", "“– Is the State commission created for the purpose of assessing the Gabala Radar Station’s impact on the environment and public health ... still active?", "– What reports ... have been drawn up and published by relevant State commissions created to date? (we request you to provide us with copies of those reports).”", "10. The applicant also noted that the requested information was needed for analysis and discussion of the issues concerning the Gabala Radar Station’s environmental and public-health impact.", "11. By a letter of 6 August 2010, the Ministry of Healthcare responded that a report prepared by the Commission pursuant to the presidential order of 26 February 2001 had been transmitted to the Cabinet of Ministers.", "12. Considering that he had not been provided with the requested information and that the Ministry of Healthcare’s reply was in breach of the requirements of the Law on Access to Information, the applicant lodged an action with the Nasimi District Court, seeking a decision ordering the Ministry of Healthcare to provide a copy of the report.", "13. In its submissions made before the court, the representative of the Ministry of Healthcare noted that it had no longer been in possession of the report at the time the applicant had made the request and argued that, in the circumstances, it had given a comprehensive reply to the request.", "14. By a judgment of 3 February 2011 the Nasimi District Court dismissed the applicant’s claim. Referring to, inter alia, Article 27 of the Law on Access to Information, it noted that the Ministry of Healthcare was no longer in possession of the report and found that, by having informed the applicant of this fact and “having responded to the other questions”, it had fully complied with its obligation to disclose information under the Law on Access to Information.", "15. Following an appeal by the applicant, on 2 May 2011 the Baku Court of Appeal upheld the first-instance court’s judgment, essentially reiterating its reasoning. In addition, referring to Article 17.2 of the Law on Access to Information, it noted that, as an “information owner” which had not been in possession of the requested information, the Ministry of Healthcare had assisted the applicant in locating the information in question, by informing him that the report had been transmitted to the Cabinet of Ministers.", "16. Following a further appeal, on 5 September 2011 the Supreme Court upheld the lower courts’ judgments, essentially reiterating their reasoning.", "Application no. 47532/13", "17. In the meantime, on 6 December 2010 the applicant wrote to the Cabinet of Ministers, providing the same information concerning himself and the purpose of the request as that submitted to the Ministry of Healthcare, and requesting specifically to be provided with a copy of the report prepared by the Commission pursuant to the presidential order of 26 February 2001.", "18. The Cabinet of Ministers received but did not respond to the applicant’s request.", "19. In February 2011 the applicant lodged an action against the Cabinet of Ministers with Baku Administrative Economic Court No. 1, arguing that the Cabinet of Ministers’ failure to respond was in breach of his rights under the Law on Access to Information and Article 10 of the Convention and seeking a decision ordering the Cabinet of Ministers to “execute the information request in accordance with the law”.", "20. It appears that, while the first-instance proceedings were pending, in April 2011 the applicant repeatedly applied with the same request to the Cabinet of Ministers (no copy of this application is available in the file), but again received no response.", "21. During the first-instance proceedings, as well as during the subsequent proceedings before the higher courts, the Cabinet of Ministers did not send any representatives to any of the court hearings and did not submit any written pleadings.", "22. On 23 December 2011 Baku Administrative Economic Court No. 1 dismissed the applicant’s claim, reasoning as follows:", "“The court notes that Article 29.1 of the [Law on Access to Information] does not provide for an obligation of an information owner to disclose reports of commissions created for a specific purpose.", "Therefore, the court considers that [the applicant’s] claim ... cannot be considered as well-founded.”", "23. The applicant appealed, arguing that the first-instance court’s interpretation of Article 29.1 of the Law on Access to Information was incorrect. He submitted that that provision did not limit the scope of obligations of “information owners” to disclose information, but merely provided for a list of types of information that must be publicly disclosed by “information owners” of their own accord, in order to reduce the number of information requests from the public concerning those types of information. Any information which was not mentioned in that provision was required to be disclosed on the basis of an information request, unless access to it was lawfully restricted. The applicant argued that the report requested from the Cabinet of Ministers did not constitute restricted information in accordance with the Law on Access to Information and, therefore, should have been made available to him as information of public interest which he needed for professional reasons as a journalist in order to exercise his right to receive and impart information.", "24. On 15 March 2012 the Baku Court of Appeal upheld the first ‑ instance judgment, reiterating the first-instance court’s reasoning and finding it lawful. Following a further appeal by the applicant, on 11 July 2012 the Supreme Court upheld the lower courts’ judgments, reiterating the same reasoning." ]

[ "RELEVANT LEGAL FRAMEWORK", "25. The following is the summary of the relevant provisions of the Law on Access to Information, as applicable at the material time.", "26. Article 3 provided:", "Article 3 – Principal definitions", "“... 3.0.5. an information owner – state bodies, municipalities, legal entities irrespective of the ownership type, and individuals as determined by Article 9 of this Law to ensure the right of access to information;", "3.0.6. a request for information – a written or oral request to access information;", "3.0.7. a person making a request for information ... – a legal entity or individual applying in writing or verbally to access information;", "3.0.8. disclosure of information – without a request for information having been made, distribution of information via mass media, official publications, questionnaires or information booklets; placement of information on the internet; declaration of information at briefings, press-releases or conferences; notification of information during official or public events.”", "27. According to Article 9, State bodies were among those considered as information owners.", "28. Article 10 provided for an obligation of information owners to ensure everyone’s right of free, unimpeded access to information on equal conditions for all. An information owner was required, inter alia, to respond to information requests in the shortest possible time and in a manner most suitable for a person making the request (Article 10.4.1), disclose information which was required to be publicly disclosed in a manner stipulated in the Law (Article 10.4.4), inform the person making the request on restrictions imposed on access to information (Article 10.4.6), and protect the information restricted for access by law (Article 10.4.7).", "29. According to Article 17.2, if an information owner to which an information request was addressed was not in possession of the requested information, it were to assist the person making the request with finding where the information in question was held.", "30. According to Article 20, having examined a request for information, the information owner’s relevant official was required to take one of the following three decisions: refuse the request, grant the request, or forward the request to the relevant information owner.", "31. An information owner could refuse to provide access to information in the following cases, inter alia : if access was restricted by law (Article 21.1.1); if it was not in possession of the requested information or had difficulties in determining the actual information owner (Article 21.1.2); if the volume of requested information was so large that providing it would significantly disrupt the information owner’s official activities or entail unnecessarily high expenses (Article 21.2.3); if responding to a request required systematisation, analysis and documentation of the information (Article 21.2.5).", "32. According to Article 21.3, a refusal to provide access to information was to be written in a clear and substantiated manner, to include references to the relevant provisions of the applicable law and to mention the right of the person making the request to challenge the refusal in courts.", "33. According to Article 23.1, if a State body or municipality was not in possession of the requested information, it was required to determine the relevant information owner and forward the information request to the latter without a delay, and in any event no later than five working days, and inform the person making the request about it accordingly.", "34. Article 29.1 listed the types of information that information owners were obligated to “disclose” (the term defined in Article 3.0.8 cited in paragraph 26 above) to the public, “in order to meet the public interest in a simpler and more efficient manner and to reduce the number of requests for information”. The list, which consisted of thirty-four lines in total, included the following types of information: reports on activities of State bodies and municipalities; information on environment and environmental harm (Article 29.1.14); decisions and orders of State authorities and municipalities; list of information constituting State secrets; and so on.", "35. The types of information listed in Article 29.1 could not be requested by way of an individual information request, subject to certain exceptions not relevant to the present case (Article 29.2).", "36. According to Article 34.1, information was divided into two types: information open for general use and restricted information. Any information which was not restricted by law was considered open information (Article 34.2). Restricted information was either secret ( məxfi ), which included State secrets, or confidential ( gizli (konfidensial) ), which included various professional and commercial information and confidential investigative and court material (Articles 34.3 and 34.4). Private information could be either confidential or open (Article 34.4).", "37. According to Article 35.1, an information owner could restrict access to certain information which it considered to be designated for official use ( xidməti istifadə ). Such restriction was limited in time and could apply to the following types of information, inter alia : information which, if disclosed prematurely, could hinder or potentially hinder formation, development or successful completion of State policies, until there was an agreement on completion of the relevant process (Article 35.2.3); information which, if disclosed prematurely, could disrupt or potentially disrupt processes involving an exchange of ideas and consultations within a State body, until a relevant final decision was taken (Article 35.2.5); documents originating from foreign States or international organisations, until a mutual agreement concerning their disclosure was obtained (Article 35.2.8); and “information endangering or potentially endangering the environment”, until the causes of such danger were eliminated (Article 35.2.9). In any event, the time-limit for restriction on access to information designated for official use could not exceed five years (Article 40.1).", "THE LAW", "JOINDER OF THE APPLICATIONS", "38. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "39. The applicant complained that the denial of access to the information sought by him from the relevant State authorities had been in breach of his right under Article 10 of the Convention to access information of public interest. Article 10 of the Convention reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "AdmissibilityThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "40. The Government raised no objections as to the admissibility of the complaint, other than arguing that it was partly substantively unmeritorious (see paragraph 54 below).", "41. The applicant submitted that Article 10 of the Convention was applicable to his complaint because the requested access to State-held information was instrumental for the exercise of his right to freedom of expression.", "The Court’s assessment", "42. Although the Government have not raised an objection as regards the applicability of Article 10 of the Convention, the Court considers that it must address this issue of its own motion.", "43. At the outset, the Court notes that, in the present case, the applicant sent two consecutive information requests to the Ministry of Healthcare and to the Cabinet of Ministers respectively and, having received, in his view, an incomplete reply to the first request and subsequently no reply to the second one, he instituted two separate sets of proceedings against the mentioned authorities. The Court notes that the texts of the relevant requests were not identical. However, both requests made by the applicant to two different State authorities concerned access to the same State-held information relating to the assessment of the environmental and public ‑ health impact of the Gabala Radar Station and, as such, should be considered to have constituted essentially the same information request (see paragraphs 9-10 and 17 above).", "44. The Court reiterates that Article 10 does not confer on the individual a right of access to information held by a public authority or oblige the Government to impart such information to the individual. However, such a right or obligation may arise where access to the information is instrumental for the individual’s exercise of his or her right to freedom of expression, in particular “the freedom to receive and impart information” and where its denial constitutes an interference with that right (see Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 156, 8 November 2016).", "45. In determining this question the Court will be guided by the principles laid down in Magyar Helsinki Bizottság (ibid., §§ 149-80) and will assess the case in the light of its particular circumstances and having regard to the following criteria: (a) the purpose of the information request; (b) the nature of the information sought; (c) the role of the applicant; and (d) whether the information was ready and available.", "46. As regards the purpose of the information request and the role of the applicant, the Court notes that the applicant was a journalist at the material time and worked as an editor of Azadlıq newspaper. The applicant expressly informed the relevant State authorities that he needed the information in question as a journalist in order to analyse and report on the issues concerning the Gabala Radar Station’s environmental and public-health impact (see paragraphs 10 and 17 above). Therefore, in view of the applicant’s role and the purpose for which he sought the information in question, the Court is satisfied that the requested information was instrumental for the performance of his professional duties as a journalist.", "47. As regards the nature of the information, the Court reiterates that the information to which access is sought must meet a public-interest test. The public interest relates to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, especially in that they affect the well ‑ being of citizens or the life of the community. This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue, or which involve a problem that the public would have an interest in being informed about. What might constitute a subject of public interest will, moreover, depend on the circumstances of each case (see Magyar Helsinki Bizottság, cited above, § 162, with further references). In the present case, the Court considers that, by its very nature, the information requested was clearly of general public importance, as it concerned the potential impact of the radar station on the health and well-being of the population of the area where the station was located (see paragraphs 7-8 above). As such, the requested information constituted a matter of public interest.", "48. Finally, in so far as the applicant sought to obtain a copy of the Commission’s report, the very existence of which has never been disputed and of which the applicant was, in fact, informed in the Ministry of Healthcare’s letter of 6 August 2010, the Court considers that the information in question was, in principle, ready and available and that the request did not pose any practical difficulties or an unreasonable burden for the authorities to gather the requested information.", "49. In sum, the Court is satisfied that the information sought by the applicant, which was ready and available, constituted a matter of public interest. Access to this information was instrumental for the applicant, as a journalist, to exercise his right to receive and impart information.", "50. For these reasons, Article 10 of the Convention is applicable.", "51. The Court further notes that the complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "52. The applicant contested the Government’s submission that the Cabinet of Ministers was not an “information owner” within the meaning of domestic law (see paragraph 54 below), arguing that that authority had been in possession of the report as officially confirmed by the Ministry of Healthcare. He added that, moreover, the Ministry of Healthcare itself also should have been in possession of a copy of the report. In any event, even if that was not the case, as required by Article 23.1 of the Law on Access to Information, the Ministry of Healthcare should have forwarded the information request to the Cabinet of Ministers, instead of providing an incomplete response to him. Moreover, the Cabinet of Ministers’ subsequent complete failure to respond to his second request was in breach of Article 21.3 of that Law.", "53. The applicant argued that there had been no substantive lawful grounds for the authorities’ denial of access to the requested information. The contents of the Commission’s report did not belong to any categories of restricted information. In the absence of public disclosure of the report’s contents by the authorities of their own accord in accordance with Article 29.1 of the Law on Access to Information, the authorities had been required by law to provide access to it on the basis of an information request. The domestic courts had failed to give a correct factual and legal assessment of the case. In particular, in the second set of proceedings, the domestic courts had given a manifestly incorrect interpretation of Article 29 of the Law on Access to Information in order to justify the Cabinet of Ministers’ inaction.", "54. The Government submitted that the domestic courts had correctly concluded that the Ministry of Healthcare had “executed” the applicant’s request by responding to his letter. The Government further noted that, since the Commission had been established by the President, the report in question had to be ultimately submitted to the President. In such circumstances, it was the President who was the “information owner” in the present case, and not the Cabinet of Ministers. Although the report had been submitted by the Commission to the Cabinet of Ministers “in accordance with the system of hierarchy”, the latter could not be considered an information owner and, therefore, the domestic courts had been correct in dismissing the applicant’s complaints.", "The Court’s assessment", "55. Having regard to its findings in paragraphs 49-50 above, and noting that the applicant did not receive the Commission’s report, the Court considers that the domestic authorities interfered with his rights enshrined in Article 10 § 1 of the Convention.", "56. The Court reiterates that an interference with an applicant’s rights under Article 10 § 1 will infringe the Convention if it does not meet the requirements of Article 10 § 2. It should therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was “necessary in a democratic society” in order to achieve those aims.", "57. The principles relevant to an assessment of whether an interference with freedom of expression was “prescribed by law” have been summarised in Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland ([GC], no. 931/13, §§ 142-45, 27 June 2017). Moreover, the Court reiterates that its power to review compliance with domestic law is limited and it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, since the national authorities are, in the nature of things, particularly qualified to settle the issues arising in this connection. Unless the interpretation is arbitrary or manifestly unreasonable, the Court’s role is confined to ascertaining whether the effects of that interpretation are compatible with the Convention (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018, and Centre for Democracy and the Rule of Law v. Ukraine, no. 10090/16, § 108, 26 March 2020). Nor is it for the Court to express a view on the appropriateness of the methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 67, ECHR 2004 ‑ I).", "58. In assessing the lawfulness of the interference in the present case, the Court will have regard to the text of the relevant law itself as well as the manner in which it was applied and interpreted by the domestic authorities and courts (see, mutatis mutandis, Jafarov and Others v. Azerbaijan, no. 27309/14, § 70, 25 July 2019).", "59. At the outset, the Court notes that it cannot accept the Government’s argument that the information in question should have been requested from the President (see paragraph 54 above), because that argument was not supported by any references to relevant domestic law or practice and because no findings of that nature had been made by the domestic courts. Turning next to the lawfulness of the response given to the applicant by the Ministry of Healthcare, the Court notes that, indeed, as argued by the applicant, it appears that the domestic courts had not adequately addressed the issue of whether the Ministry of Healthcare’s response to the applicant’s first request had been compliant with Article 23.1 of the Law on Access to Information, which provided that, in situations where the State authority to which the information request had been directed was not in possession of that information, it was required to forward that request to the relevant “information owner” (see paragraph 33 above). Arguably, if it was true that the Ministry did not have the report, under that provision, the Ministry of Healthcare should have forwarded the request to the relevant authority of its own motion and should have informed the applicant about it, which was not done in the present case.", "60. Nevertheless, despite the above, the applicant himself applied to the Cabinet of Ministers for a copy of the report but received no reply. In this connection, the Court notes, in particular, that Article 21.3 of the Law on Access to Information required that a refusal to provide access to information was to be made in writing and in a substantiated manner, including references to the applicable provisions of the domestic law serving as a ground for the refusal (see paragraph 32 above). Accordingly, the Cabinet of Ministers’ failure to respond to the request was in apparent breach of the above legal requirement. However, this matter was not at all addressed by the domestic courts.", "61. Moreover, the Court notes that the reasoning provided by the domestic courts for dismissing the applicant’s claim against the Cabinet of Ministers was essentially confined to holding, with reference to Article 29.1 of the Law on Access to Information, that that provision “[did] not provide for an obligation of an information owner to disclose reports of commissions created for a specific purpose” (see paragraph 22 above). Accordingly, the courts found that Article 29.1 of the Law on Access to Information constituted the sole substantive legal basis for denying the applicant access to the report. For the reasons specified below, the Court cannot but agree with the applicant’s submission that, in the circumstances of the present case, this finding was based on a manifestly unreasonable interpretation and application of the domestic law.", "62. In particular, having regard to the text of Article 29.1 of the Law on Access to Information, read in conjunction with Article 3.0.8 of that Law, the Court notes that it clearly concerned only the types of information which were required to be publicly disclosed by information owners of their own accord and not in response to individual requests for information (see paragraphs 26 and 34 above). In other words, it did not, as such, limit access by members of the public to State-held information. On the contrary, it facilitated such access by requiring information owners to disclose certain types of often-sought information to the public at large. Within the textual meaning of the relevant provisions of the Law on Access to Information, it appears that access to information which did not belong to the types specifically listed in Article 29.1 could be sought by way of a request for information made on an individual basis (see, inter alia, Articles 3.0.6 and 3.0.7 in paragraph 26 above, Article 10 in paragraph 28 above, and Article 29.2 in paragraph 35 above) and that the relevant information owners were required to provide such access to the person making the request, unless the requested information was lawfully restricted for access or there were other specifically defined grounds for refusing to provide access (see, inter alia, Articles 10, 20 and 21 in paragraphs 28, 30 and 31 above, respectively).", "63. In the present case, the report requested by the applicant had not been publicly disclosed by the State authorities of their own accord under Article 29.1 of the Law on Access to Information. Moreover, it has never been established that it belonged to the types of information which the State authorities were required to disclose under that provision and, in fact, the courts in the present case expressly ruled that it did not.", "64. It therefore follows that, by relying on Article 29.1 of the Law on Access to Information, without dealing with its scope of applicability and exact meaning, the domestic courts failed to establish that that provision could constitute a relevant and applicable substantive legal basis for denying to the applicant access to the requested information. Moreover, the crux of the applicant’s claim did not concern any failure by the State authorities to disclose the contents of the report of their own accord, but concerned the alleged breach of the legal requirements applicable to processing individual requests for information. However, the domestic courts failed to assess the issues put before them in the light of the requirements of those legal provisions which were actually relevant and applicable to the situation at hand (compare Yuriy Chumak v. Ukraine, no. 23897/10, § 45, 18 March 2021, and, mutatis mutandis, Akhverdiyev v. Azerbaijan, no. 76254/11, § 97, 29 January 2015). In particular, they failed to duly assess the compliance of the information owner with the procedural requirements concerning a written response to an information request, as well as the existence of any applicable substantive grounds for a refusal to provide access to information, such as, inter alia, whether the requested information was lawfully restricted for access.", "65. In sum, the Court considers that it has not been demonstrated that the denial of access to the requested information by either of the two State authorities in question was in compliance with the procedural requirements of the domestic law and that no relevant substantive legal basis for such denial has been put forward either by the domestic authorities or courts or by the Government. The domestic courts dismissed the applicant’s claims against both authorities without due regard to the applicable provisions of the Law on Access to Information and, moreover, in so far as the claim against the Cabinet of Ministers is concerned, they dismissed it by having interpreted and applied the domestic law in a manifestly unreasonable manner.", "66. The foregoing considerations are sufficient to enable the Court to conclude that the interference with the applicant’s rights in the present case was not “prescribed by law”. Having reached that conclusion, the Court does not need to satisfy itself that the other requirements of Article 10 § 2 (legitimate aim and necessity of the interference) have been complied with.", "67. There has accordingly been a violation of Article 10 of the Convention.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "68. The applicant complained under Article 6 of the Convention that the domestic courts’ judgments in both sets of proceedings had not been adequately reasoned, because the courts had failed to correctly assess his arguments from the standpoint of the domestic law.", "69. Having regard to the conclusion reached above under Article 10 of the Convention (see paragraphs 65-67 above) and the parties’ submissions, the Court considers that there is no need to give a separate ruling on the admissibility and merits of this complaint in the present case (compare Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "70. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "71. The applicant claimed 7,000 euros (EUR) in respect of non ‑ pecuniary damage.", "72. The Government argued that the claim was excessive.", "73. Regard being had to the approach taken in similar cases (see, in particular, Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 41, 14 April 2009; Centre for Democracy and the Rule of Law, cited above, § 124; and Yuriy Chumak, cited above, § 55), the Court considers that the finding of a violation constitutes, in the specific circumstances of the present case, sufficient just satisfaction for any non ‑ pecuniary damage which the applicant may have suffered and therefore makes no award under this head.", "Costs and expenses", "74. The applicant also claimed EUR 6,552 for the costs and expenses incurred before the domestic courts and the Court. In support of this claim he submitted copies of two contracts for legal services concluded with his representatives. He also requested the Court that any award made in respect of costs and expenses be paid directly to one of his representatives, Mr R. Hajili.", "75. The Government argued that the claim was excessive and unreasonable. They noted that an award in the amount of 1,500 Azerbaijani manats would be reasonable under this head.", "76. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 covering costs under all heads, plus any tax that may be chargeable to the applicant.", "Default interest", "77. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1981 and lives in Curtea de Argeș. He was represented by Ms D.O. Hatneanu, a lawyer practising in Bucharest.", "3. The Government were represented by their Agents, most recently by Ms. O. Ezer, of the Ministry of Foreign Affairs.", "4. The facts of the case may be summarised as follows.", "BACKGROUND TO THE CASE", "5. The applicant is a founding member and president of the Spiritual Militia Civic Movement Association ( Asociaţia Mișcarea Civică Miliţia Spirituală ). He is a known activist and was involved in various civic actions, including the Save Roșia Montană ( Salvaţi Roșia Montană ) campaign.", "6. That campaign, which attracted significant national and international support and attention, was initiated by the local community in Roșia Montană in the year 2000 as a protest against a mining project of the local gold and silver deposits. The project, which would involve the use of cyanide, was controversial because of its estimated negative impact on the environment and the local heritage. The campaign eventually led to the Roșia Montană mining landscape being registered on the United Nations Educational, Scientific and Cultural Organization’s world heritage list in July 2021.", "THE EVENT IN ISSUEThe applicant’s decision to participate in the event", "The applicant’s decision to participate in the event", "The applicant’s decision to participate in the event", "7. According to the applicant, on 28 August 2013 he read in the newspapers a press statement by the government informing the public that during their 4 p.m. meeting of 27 August 2013 they had approved a bill ( proiect de lege ) concerning the mining of the gold and silver deposits in Roșia Montană and had sent it to Parliament to be adopted. The bill in question had been approved by the government without any prior public consultation or information being provided and had practically green-lighted the mining of the Roșia Montană deposits.", "8. On the same date the applicant and three other persons decided to express their negative opinion about the government’s above-mentioned actions and to raise public awareness about the bill by handcuffing themselves to one of the barriers blocking access to the parking area of the government’s headquarters and by holding up signs.", "The video-recording of the event", "9. The event was filmed by an acquaintance of the applicant and the resulting film was posted on the YouTube Internet website on 29 August 2013. The film was 5 minutes and 32 seconds long. The first 3 minutes and 55 seconds covered the actual event and the rest covered an interview with the applicant and two of the participants carried out a few hours after the event about the reasons prompting their actions.", "10. The film showed that a police officer who was guarding the car park barrier in question immediately tried to stop the applicant and the other persons from handcuffing themselves to the barrier’s rails. Other police officers rushed in to help him, but the applicant and the other three persons succeeded in attaching themselves to the rails and holding up signs reading “Save Roșia Montană” and “United to save Roșia Montană” ( Uniţi pentru a salva Roșia Montană ). The applicant and the other persons were completely silent throughout almost the entire duration of the event. The handcuffs of two of the participants were detached from the barrier’s rails very quickly but the applicant’s and one other participant’s handcuffs could not be removed as quickly because the applicant complained that the process was hurting his arm.", "11. A gendarme officer asked the applicant and the remaining handcuffed participant to leave the area because their actions were unlawful, but they refused to do so unless a government representative came out of the building to talk to them. As a result, the officers decided to take the applicant and the remaining person handcuffed to the barrier to a police station on the ground that they had refused to cooperate with the police. The police officers detached the applicant and the other person from the barrier’s rails by cutting the rail to which the handcuffs were attached and carried them in their arms to a police car. One of the other two participants was also asked by the officers to get into a police car and to go to the police station, and he complied.", "12. The film further showed that apart from the law-enforcement officials and a few passers-by who stopped to watch or film the applicant’s removal from the barrier, no other persons were present and the event did not affect in any way the car and pedestrian traffic in the area. Also, no official or unofficial car tried to use the barrier in question to access the government building’s car park.", "13. The film also showed that in her interview carried out a few hours after the event, one of the participants justified her actions by stating that she had been impressed by the way the locals in Roșia Montană had been fighting against the mining project and by the fact that people had been unaware of their fight. As a result, she had felt that she needed to do something about it and also to convince other young people to do the same by the power of example. She considered that actions had to be more radical since people had been lodging petitions for years only to be ignored.", "14. During the same interview, another participant stated that their actions had been to try and break the media silence around the Roșia Montană subject. He was of the opinion that since the type of peaceful protests that had been held before had not had any significant impact and the persons involved in them had not been taken seriously either by the authorities or by the mass media, their type of protest could yield results.", "THE POLICE REPORT AND THE FINE IMPOSED ON THE APPLICANT", "15. According to a police report drafted on 28 August 2013 at 6.20 p.m. at police station no. 1 in Bucharest, the applicant was fined 500 Romanian lei (RON) (an estimated 113 euros (EUR)) because he had committed the acts set out in Article 3 § 2 and punished by Article 4 § 1 (c) of Law no. 61/1991 on the punishment of acts breaching certain norms of social coexistence and the public order and peace. The police report stated in particular that “... at 5.15 p.m. ... [the applicant] had been spotted ... at the Romanian government’s headquarters in Victoria Square, the Iancu de Hunedoara Boulevard entrance, having formed a group with ... [S.M.B.], [F.B.], and [R.B.] in order to commit antisocial acts, blocking access to the institution [and] attaching himself together with S.M.B. with handcuffs to the access gate’s barrier, while the other persons held up the message ‘United for Roșia Montană’ [ Uniţi pentru Roșia Montană ]”.", "16. The police report also stated that the applicant had acknowledged the act committed by him, but that he had refused to sign the police report.", "THE APPLICANT’S CHALLENGE AGAINST THE FINE", "17. On 18 September 2013 the applicant challenged the police report and the fine imposed on him and asked the court to annul them. In the alternative, he asked the court to replace the fine by a warning. He argued that the police report had been unlawful because, to the extent that a sanction had been needed in his case, he should have been punished on the basis of the provisions of Law no. 60/1991 on the organisation and conduct of public gatherings. His behaviour had been wrongly classified as being punished under Law no. 61/1991, because the manifestation of one’s rights to freedom of expression and assembly through protest could not be an antisocial act which disturbed the public order and peace.", "18. The applicant further argued that the police report had been unfounded. The acts imputed to him had been a form of lawful manifestation of his above-mentioned rights (see paragraph 17). The protest had represented a spontaneous reaction to a decision taken by the government, without any prior notice, with which he had disagreed. In such circumstances, according to the judgment of the European Court of Human Rights in Bukta and Others v. Hungary (no. 25691/04, ECHR 2007-III), a person’s right to freedom of assembly could be exercised without a prior notification to the authorities. By complying with the three-day time-limit requirement set out in Law no. 60/1991, the spontaneous protest against the government’s decision in question would have been void of any substance.", "19. Moreover, during the protest he had behaved peacefully and had not disturbed or affected in a significant way the activity of the institution. The protest had taken place in front of a gate which was used only by high dignitaries and therefore was the one least used for access to the building; no one had attempted to use the gate in question during his presence there and the building had remained accessible during the protest through its several other gates. It could not be said, therefore, that he had formed a group of three or more people in order to commit unlawful acts, violating the public peace and order and the norms of social coexistence.", "20. Lastly, the applicant argued that the sanction imposed on him had been unnecessary in a democratic society. In the latter society the existence and expression of critical opinions about the government was essential, even if done in unconventional ways aimed at attracting the public’s and the decision-makers’ attention.", "FIRST ‑ INSTANCE JUDGMENT", "21. On 7 July 2014 the Bucharest District Court (“the District Court”) dismissed the applicant’s challenge, holding that the police report had been lawful. Given the content of the act that had been described in the police report and the images filmed at the scene of the event, the legal classification of the act as falling under Article 3 § 2 of Law no. 61/1991 had been justified because the form of protest chosen by the applicant had breached Law no. 60/1991, therefore amounting to an unlawful act, and his having handcuffed himself to the barrier and the expression made could be considered to be acts that had breached the public peace and order and the norms of social coexistence.", "22. The court further held that the applicant had not given well-founded reasons grounded in exceptional circumstances that could justify holding this form of protest without following the preliminary procedure provided for by Law no. 60/1991 of declaring public gatherings to the authorities. It could not be said that the rules set out in Law no. 60/1991 did not cover spontaneous forms of protest since the manifestation of one’s rights to freedom of expression and assembly could be done only within the limits set by the law and Law no. 60/1991 required that a prior declaration be made about any type of public gathering.", "23. Taking into account the text of Article 11 of the European Convention on Human Rights, it could not be said that the sanction imposed on the applicant had not complied with the conditions set out in paragraph 2 of that Article since the measure had been provided for by law, had been imposed in order to protect public order and the rights and freedoms of others and to prevent crime and had been proportionate to the aim pursued given the specific form and means of protest chosen by the applicant.", "24. Lastly, the court held that the applicant had not rebutted in any way the version of the facts contained in the police report, even though the burden of proof had been on him to do so, and that there were no lawful grounds to annul the police report. Also, there was no reason to replace the fine by a warning since the applicant had been correctly punished by the lowest fine provided for by law for his actions.", "THE APPLICANT’S APPEAL AGAINST THE FIRST-INSTANCE JUDGMENT", "25. The applicant appealed against the judgment. He reiterated the arguments that his actions had been a form of manifesting his right to freedom of expression (see paragraph 18 above) and that during the protest he had behaved peacefully and had not disturbed the public peace nor affected in a significant way the activity of the institution (see paragraph 19 above).", "26. In the event that his actions were to be viewed as constituting the organisation of and participation in a public gathering which had lacked the requisite prior notification, his punishment would have been lawful only if he had been punished on the basis of Article 26 of Law no. 60/1991, and not on the basis of Law no. 61/1991. The District Court had not taken into account the video-recording of the event which had shown that at the scene of the protest the law-enforcement officials had applied the procedure set out in Law no. 60/1991 and had not referred at all to Law no. 61/1991. Also, it had considered that the sanction imposed on him had been lawful by relying on the provisions of Law no. 60/1991, even though it had found at the same time that his actions had been a form of protest which had breached Law no. 61/1991.", "27. The District Court had failed to examine his argument about his right to freedom of expression having been breached (see paragraphs 17-20 above). The findings of the European Court of Human Right in the judgment in Tatár and Fáber v. Hungary (nos. 26005/08 and 26160/08, 12 June 2012), which concerned circumstances similar to his, had made the examination of his above-mentioned argument even more necessary since the court had considered that his actions had not been covered by the provisions of Law no. 61/1991.", "28. The lower court had also ignored the findings of the European Court of Human Rights in Bukta and Others (cited above) to the effect that justified spontaneous gatherings could be held in the absence of a requisite prior notice. As a result, it had misinterpreted Article 11 of the European Convention on Human Rights.", "29. Even though the applicant had proved that the government had approved a controversial bill which he had wanted to contest only a day before the protest, suddenly and without any prior notice, the District Court had taken the view that the spontaneous protest had not been justified by the circumstances. At the same time, in contradiction to this finding and despite the fact that spontaneous gatherings by their nature could not be notified in advance, the court had found that the prior-notice procedure provided for by Law no. 60/1991 also covered spontaneous gatherings. However, if that finding of the lower court had been true, its assertion to the effect that the applicant had to provide justified reasons for failing to follow the prior-notice procedure provided for by Law no. 60/1991 would be rendered irrelevant.", "LAST-INSTANCE COURT JUDGMENT", "30. By a final judgment of 10 June 2015, the Bucharest County Court dismissed the applicant’s appeal and upheld the lower court’s judgment. It held that the applicant’s actions had been correctly classified and punished. According to the content of the police report and of the applicant’s application to the court, the applicant and three other persons had decided on 27 August 2013 to form a group in order to protest in front of the government building on the following day against the government and its decision to approve a bill that was green-lighting the mining of the deposits in Roșia Montană. There could be no doubt that the four persons’ agreement to meet on the following day in a certain location and at a certain time with the aim of conducting an unauthorised meeting met the conditions of the contravention provided for by Article 3 § 2 of Law no. 61/1991 read in the light of Article 26 § 1 (a) of Law no. 60/1991.", "31. The applicant’s argument that the authorities should have relied on Law no. 60/1991 rather than Law no. 61/1991 to impose the sanction on him was ill-founded because the two laws were complimentary and not mutually exclusive as provided also by Article 2 of Law no. 60/1991. To accept the applicant’s view would mean that those instances of disturbing the public order and peace which had not been covered by Law no. 60/1991 would have gone unpunished.", "32. The applicant’s argument to the effect that his rights to freedom of expression and assembly had been violated was likewise ill-founded. While it was true that the Constitution and Law no. 60/1991 provided for a person’s right to protest in public places by expressing his or her opinions, the latter law also provided that the protests had to be conducted in observance of the lawful procedure, the rights and freedoms of other citizens and the other conditions provided for by law. Given the content of the applicable legal framework which set out the rules and conditions for manifesting one’s rights to freedom of expression and assembly and which required a written notification at least three days prior to the date of the protest, the measure taken against the applicant had not violated his right to freedom of expression.", "OTHER INFORMATION", "33. The bill adopted by the government on 27 August 2013 concerning the Roșia Montană mining project (see paragraph 7 above) sparked numerous other large protests across Romania starting from 1 September 2013. The protests eventually led to Parliament rejecting the bill." ]

[ "RELEVANT LEGAL FRAMEWORK", "34. The relevant provisions of Law no. 60/1991 on the organisation and conduct of public gatherings, as in force at the relevant time, read as follows:", "Article 1", "“...", "Public gatherings – meetings, demonstrations, manifestations ... and other similar [events] – which are to take place in squares, on public thoroughfares or in other outdoor places, may be organised only after submitting the preliminary declaration provided for by the present law.", "...”", "Article 2", "“Public gatherings must take place in a peaceful and civilised manner, with the protection of the participants and of the environment, without disrupting the normal use of public roads ..., except for those authorised, the functioning of public institutions ... or degenerating into turbulent actions capable of endangering the public peace and order, the safety of persons, ... or their property or those of the public domain, and may not be continued past 11 p.m., in which case they are covered by the provisions of Law no. 61/1991 ...”", "Article 7", "“The organisers of public gatherings shall submit, at least three days before the date on which they will be held, a written declaration to the mayor’s office ... on whose territory they will be held, in which they must mention the name of the organising group, the purpose, location, date, start time and duration of the action, the inflow and outflow routes, the estimated number of participants, the persons authorised to ensure and be responsible for organising measures, the services they require from the local council, the local police and the gendarmerie ...”", "Article 13", "“The participants in public gatherings must:", "...", "(d) immediately leave the public gatherings or the location where they are held, when they have been asked [to do so] by the ... police.”", "Article 26", "“The following acts are contraventions, unless they are committed in circumstances that meet the elements of an offence according to criminal law:", "(a) organising and holding... unregistered and undeclared public gatherings;", "...", "(d) participating in undeclared ... public gatherings, followed by a refusal to leave the location where they were held when warned and asked [to do so] according to law by the law-enforcement officials", "...", "(i) refusing to leave the gathering immediately when asked [to do so] by law ‑ enforcement officials according to law;", "...”", "35. The relevant provisions of Law no. 61/1991 on the punishment of acts breaching certain norms of social coexistence and the public order and peace, as in force at the relevant time, read as follows:", "Article 3", "“Committing any of the following acts amounts to a contravention, unless they are committed in circumstances constituting an offence according to criminal law:", "...", "2. forming a group of three or more people in order to commit unlawful acts contrary to the public order and peace and to the norms of social coexistence, as well as the acts of encouragement and support, in any form, of such groups of persons which incite to social disorder;", "...”", "Article 4", "“1. The contraventions set out in Article 3 shall be punished as follows:", "...", "(c) with a fine from 500 lei to 1,500 lei, those set out in paragraph 2 ...;", "...”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION", "36. The applicant complained that the final judgment of 10 June 2015 of the Bucharest County Court, upholding the sanction imposed on him, had violated his rights to freedom of expression and peaceful assembly provided for by Articles 10 and 11 of the Convention, the relevant parts of which read as follows:", "Article 10", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others ...”", "Article 11", "“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others ...", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others ...”", "AdmissibilityThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The Government", "37. The Government argued that in view of the Court’s case-law, namely Kudrevičius and Others v. Lithuania ([GC], no. 37553/05, § 85, ECHR 2015), the applicant’s case should only be examined from the angle of Article 11 of the Convention, which was lex specialis in relation to Article 10. They indicated, however, that their submissions concerning Article 11 also applied to Article 10.", "38. They argued further that according to the police report and the judgment of the national courts, the applicant had been punished because he had committed acts affecting the public order owing to the manner in which he had chosen to protest, in particular by handcuffing himself to the barrier of the access gate to the government building. He had not been punished because of his participation in the protest, because of the personal opinions expressed or the content of the slogans chanted on that occasion, or because he had failed to give the requisite prior notice for the assembly.", "39. Therefore Article 11, which conferred on the applicant a right to peaceful assembly, was not applicable in the present case.", "(b) The applicant", "40. The applicant disagreed with the Government’s assertions to the effect that neither Article 10 nor Article 11 was applicable in his case. The Government had failed to explain why Article 10 was inapplicable and the applicant expressed the view that his case could be considered under both Articles.", "41. His case was similar to that in Tatár and Fáber v. Hungary (nos. 26005/08 and 26160/08, 12 June 2012) and therefore the Court had to declare admissible his complaint under Article 10 of the Convention. He had been sanctioned for a disturbance that had been the result of the applicant and a few others expressing their opinion in a provocative, but peaceful manner. The event had been very short, had not been aimed at any particular group of people and, since it had not been advertised beforehand, it had not been designed to attract a large crowd, which would have warranted specific measures by the authorities. The aim had only been to raise public support.", "42. As to the Government’s arguments that Article 11 of the Convention was inapplicable because the gathering had not been peaceful (see paragraph 40 above), the applicant argued that the event had not been violent and that he had remained passive and silent throughout, even when he was detached from the barrier.", "The Court’s assessment", "43. The Court notes that the exact circumstances which led to the applicant being fined, including the exact timeline of his actions on 27 and 28 August 2013, remain to some extent unclear (see paragraphs 7-14, 15-16, 24 and 30). The national authorities and the courts did not address and clarify this point.", "44. Nevertheless, the Court notes that in making his complaints under Articles 10 and 11 of the Convention, the applicant has presented his own version of the events as well as written and video evidence to support it which has not been contested as such by the Government (see paragraphs 7-15 and 41-42 above, and 53-58 below). The Court notes further that the applicant’s version of the events seems to be largely coherent with the evidence submitted by him, the findings of the national courts and the police report (see paragraphs 15, 21-24 and 30-32 above). Therefore, it finds it reasonable to accept the applicant’s version of the events.", "45. The Court notes that the applicant has not denied at any stage of the domestic proceedings or before the Court that he had intended to organise and take part in the event on 28 August 2013 together with three other people. Moreover, it is clear that both the event itself and the signs the applicant and the other persons were holding up were designed and aimed to send a message directed both at the government in power and at the public at large (see paragraph 56 below). Furthermore, when giving their reasons for the sanction imposed on the applicant, the law-enforcement authorities referred expressly to the message held up by the participants in the event (see paragraph 15 above).", "46. In these circumstances the Court cannot accept that the penalty imposed on the applicant could be dissociated from the views expressed by him through his actions or endorse the Government’s argument that the applicant was punished merely for committing acts affecting public order (see paragraph 38 above). In this connection, the Court notes that it has consistently found Article 10 to be applicable to views or opinions expressed through conduct (see Mătăsaru v. the Republic of Moldova, nos. 69714/16 and 71685/16, § 29, 15 January 2019, with further references).", "47. In so far as the Government’s arguments may be understood to suggest that Article 11, or Article 10 for that matter, was inapplicable because the gathering had not been peaceful (see paragraphs 40 and 42 above), the Court notes that the applicant’s conduct, although involving handcuffing himself to a barrier and some damage being done to the rails of that barrier (see paragraph 11 above), did not amount to violence or incite it, and no one was injured during the event in which he was involved (see Olga Kudrina v. Russia, no. 34313/06, §§ 53-54, 6 April 2021, with further references). Indeed, neither the police report produced on 28 August 2013 nor the judgments of the national courts expressly mentioned any use or threat of violence by the applicant against individuals or infliction of any bodily harm to anyone. In addition, the damage to the barrier’s rails was done by one of the law-enforcement officials when trying to remove the applicant and not by the applicant himself (see paragraph 11 above) and there is no indication that the national authorities or the courts held the applicant liable for the above-mentioned damage. The Government have not submitted any evidence that charges for physical violence or for damaging public property were brought against the applicant or the other participants.", "48. The Court is of the opinion therefore that the facts of the applicant’s case fall within the scope of Articles 10 and 11 of the Convention. It follows that the Government’s objection concerning the applicability of these Articles must be dismissed.", "49. The Court further notes that the application is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicant", "50. The applicant argued that he had relied on both Articles 10 and 11 in his applications before the national courts and the Court because of the specific circumstances of the case which had resulted from the national courts’ approach when examining it. Both courts had indicated that the unlawful act in which the applicant had conspired with others had been that of participating in a gathering that had been unlawful because it had not complied with the prior-notification requirement set out by law. The District Court had specifically held that even spontaneous protests such as the one the applicant had been involved in had to comply with the prior-notification requirement (see paragraph 22 above). That court had referred only very briefly in its assessment to the form of protest chosen by the applicant and only when considering the proportionality of the sanction imposed on him (see paragraph 23 above).", "51. The applicant explained that on 28 August 2013 he had intended to respond quickly and express his disagreement with the government’s initiative. He had opted for a more provocative manner of showing his dissatisfaction and for drawing the public’s attention to this matter because the various other forms of protest that had been used before 28 August 2013 had not yielded results. The fact that the protest had been filmed and that the film had been disseminated online (see paragraph 9 above) proved that he had intended only to show his dissatisfaction with the initiative in question and to draw the public’s attention to it. His protest had been followed by large demonstrations later that year against the Roșia Montană mining project which had eventually led to the project being cancelled (see paragraph 33 above).", "52. The applicant argued that the sanction imposed on him had been an interference with his rights to freedom of expression or to freedom of assembly which, given the circumstances of his protest, had been unnecessary in a democratic society. It was therefore unnecessary for him to elaborate on the foreseeability of the law providing for his punishment.", "53. The applicant acknowledged that the measure had pursued the legitimate aim of protecting public order. However, he could not agree that the measure had been aimed at preventing the disturbance of a public institution’s activity. The film of the events and the judgment of the courts had clearly shown that the activity of the institution had not been disturbed at all. The gate used for the protest had been far away from the building and no one had attempted to use it during the protest. The protest had been silent and none of the participants had engaged in any other action that could have disturbed the activity of the building’s occupants.", "54. The event had been of a very short duration and had not led to the destruction of public property. The pedestrian traffic in the area had not been affected, the members of the public passing by had not gathered to watch what had been happening and there had been no public outrage about the protest or any serious intentional disruption of public activities. Also, imposing a requisite three days’ prior notice even for spontaneous protests and the authorities’ failure to demonstrate a high degree of tolerance to his protest, given that he had been removed from the barrier and taken to a police station almost immediately, ran counter to the European Court of Human Rights’ case-law on Article 11 of the Convention. Therefore, there had been no pressing social need for the authorities to punish the applicant.", "55. The national courts had not provided relevant and sufficient reasons explaining the interference with his rights protected under Article 10 or Article 11. They had ignored the arguments he had raised in this connection and had simply considered that the interference had been justified because he had chosen to protest without complying with the relevant legal framework requiring a prior notification of the protest.", "(b) The Government", "56. Reiterating their above-mentioned arguments (see paragraph 38 above), the Government argued that the measure imposed on the applicant had not constituted an interference with his right to freedom of peaceful assembly.", "57. Even assuming that there had been an interference with the applicant’s right, the interference in question had been prescribed by law. Moreover, by seeking to prevent the disruption of the activities within the government building, it had pursued the legitimate aims of preventing disorder and of protecting the rights and freedoms of others. Furthermore, it had been necessary in a democratic society.", "58. The domestic authorities had not prevented the applicant from taking part in the event in question and had punished him by imposing only the minimum fine provided for by law. In their assessment of the case the courts had struck a fair balance between the competing interests at stake. They had duly examined the applicant’s challenge against the police report and his arguments and had found that his actions had violated the legal framework protecting public order by relying on relevant and sufficient reasons.", "(c) The third-party interveners", "59. In their joint intervention, The Open Society Justice Initiative and Greenpeace Romania submitted that the applicant’s case provided the Court with an opportunity to acknowledge that obstructive or symbolic protests, sometimes referred to as non-violent direct action, constituted an important form of communication in a democratic society protected by Article 10 and should not be subject to notification requirements. In the alternative, in the event that the Court should take the view that the applicant’s conduct had to be examined as a peaceful assembly protected by Article 11, it could acknowledge that any notification requirements for assemblies should provide exceptions for special circumstances that justified an immediate response, and that one such circumstance was the recent adoption without prior consultation of legislation affecting a community.", "60. As could be seen from the Court’s case-law and the views expressed by the Council of Europe’s Venice Commission, the key issues for the Court to consider when deciding whether the applicant’s conduct was an expression within the meaning of Article 10 or a peaceful assembly within the meaning of Article 11 were whether: (i) the conduct involved an intentional gathering of further participants; (ii) facilitation of the event by the authorities could objectively have been considered necessary, and failure to give prior notice had prevented them from doing so; and (iii) a requirement for prior notice would have interfered with the intended form of the protest, given that the protest involved an element of confrontation or surprise or was an immediate response to a current event.", "61. The third-party interveners took the view that since in the applicant’s case the first two questions could be answered in the negative and the third one in the positive, his protest had to be examined under Article 10 read in the light of Article 11, rather than Article 11 alone.", "The Court’s assessment", "(a) General principles", "62. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society” (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24, and Jersild v. Denmark, 23 September 1994, § 37, Series A no. 298).", "63. Moreover, Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204; Thoma v. Luxembourg, no. 38432/97, § 45, ECHR 2001 ‑ III; and Women On Waves and Others v. Portugal, no. 31276/05, § 30, 3 February 2009).", "64. Similarly, the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society. Thus, it should not be interpreted restrictively (see Djavit An v. Turkey, no. 20652/92, § 56, ECHR 2003 ‑ III, and Barraco v. France, no. 31684/05, § 41, 5 March 2009). A balance must always be struck between the legitimate aims listed in Article 11 § 2 and the right to free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places (see Ezelin v. France, 26 April 1991, § 52, Series A no. 202).", "65. However, Article 11 of the Convention only protects the right to “peaceful assembly”. That notion does not cover a demonstration where the organisers and participants have violent intentions (see Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 77, ECHR 2001 ‑ IX, and Galstyan v. Armenia, no. 26986/03, § 101, 15 November 2007). Nonetheless, even if there is a real risk of a public demonstration resulting in disorder as a result of developments outside the control of those organising it, such a demonstration does not fall outside the scope of Article 11 § 1, but any restriction placed on such an assembly must be in conformity with the terms of paragraph 2 of that Article (see Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, § 103, ECHR 2011 (extracts)).", "66. Lastly, the Court reiterates that any measures interfering with freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles do a disservice to democracy and often even endanger it (see Fáber v. Hungary, no. 40721/08, § 37, 24 July 2012).", "(b) Application of these principles to the instant case", "(i) Scope of the Court’s assessment", "67. The Court notes that the issues of freedom of expression and freedom of peaceful assembly are closely linked in the present case. Indeed, the protection of personal opinions, secured by Article 10 of the Convention, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 of the Convention (see Taranenko v. Russia, no. 19554/05, § 68, 15 May 2014, with further references).", "68. The parties and the third-party interveners have submitted arguments under both Article 10 and Article 11 and have laid out various options the Court could choose in respect of its assessment of the case in terms of the Article most relevant in this connection (see paragraphs 37, 40, 50, 59 and 61 above).", "69. Given the detailed explanations provided by the applicant as to the intended purpose and scope of the event he had staged and participated in (see paragraphs 51 and 54 above), the Court considers that the thrust of his complaint is that he was punished for protesting, together with other participants in the non-violent direct action, against the government’s policies. The Court is therefore persuaded that the event constituted predominantly an expression, all the more so since it involved only four persons and lasted a very short time (see paragraph 10 above and, mutatis mutandis, Tatár and Fáber, cited above, § 29). Moreover, since it was the result of a rather spontaneous decision (see paragraphs 7 and 30 above) and lacked any prior advertisement, it is difficult to conceive that such an event could have generated the presence of further participants or the gathering of a significant crowd warranting specific measures on the part of the authorities (ibid.).", "70. The Court therefore finds it appropriate to examine the present case under Article 10, which will nevertheless be interpreted in the light of Article 11 (see Women On Waves and Others, cited above, § 28, and Taranenko, cited above, § 69).", "(ii) Existence of an interference", "71. The Court notes that the parties disagree as to whether the measure taken against the applicant constituted an interference with his right to freedom of expression (see paragraphs 52 and 56 above).", "72. The Court has established that the measure in question could not be construed to have concerned only the applicant’s conduct as such and not also the views and message expressed by him through his actions (see paragraph 51 above). It follows that there has been an interference with his right to freedom of expression (see Tatár and Fáber, cited above, § 30).", "73. Such an interference will lead to the finding of a violation of Article 10 of the Convention, unless it was prescribed by law, pursued a legitimate aim and was necessary in a democratic society to achieve that aim (ibid.).", "(iii) Prescribed by law", "74. The Court notes that while the Government argued that the interference with the applicant’s right had been lawful, the applicant considered that the interference was not necessary in a democratic society which made it unnecessary for him to elaborate on the foreseeability of the law providing for his punishment, suggesting that he viewed the interference with his right to be unlawful (see paragraphs 52 and 57 above).", "75. The relevant principles for the assessment of the lawfulness of an interference, including the requirements of accessibility and foreseeability of the law are set out in Kudrevičius and Others (cited above, §§ 108-110).", "76. The Court notes that the legal basis for the fine imposed on the applicant was Article 3 § 2 of Law no. 61/1991 read in the light of Article 26 § 1 (a) of Law no. 60/1991 (see paragraphs 15 and 30 above).", "77. However, the reference to this provision for the sanction, namely Article 3 § 2 of Law no. 61/1991, was contested by the applicant before the national courts on the grounds that the legal basis for his punishment should have been Law no. 60/1991. For the reasons emphasised by him in paragraphs 17-19 above, the applicant contested that he had formed a group of three or more people in order to commit unlawful acts, violating the public peace and order and the norms of social coexistence as required by Law no. 61/1991. He also argued before the courts that at the scene of the protest the law-enforcement officials had relied on the procedure under Law no. 60/1991 and had not referred to Law no. 61/1991 at all. Given that his actions could be viewed as constituting organisation and participation in a public gathering which had lacked the requisite prior notification, his punishment would have been lawful only if he had been punished on the basis of Article 26 of Law no. 60/1991 (see paragraph 26 above).", "78. The national courts dismissed the applicant’s above-mentioned arguments on the grounds that the legal classification of his actions under Article 3 § 2 of Law no. 61/1991 had been justified because the form of protest chosen by the applicant had breached Law no. 60/1991, therefore amounting to an unlawful act, and his having handcuffed himself to the barrier and the expression made could be considered to be acts that had breached the public peace and order and the norms of social coexistence. The applicant had not given reasons that could have justified holding this form of protest without following the preliminary procedure provided for by Law no. 60/1991 of declaring public gatherings to the authorities, and it could not be said that the rules set out in Law no. 60/1991 had not covered spontaneous forms of protest since it required that a prior declaration be made about any type of public gathering. There could be no doubt that the agreement to meet with three other persons in a certain location and at a certain time with the aim of conducting an unauthorised meeting met the conditions of the contravention provided for by Article 3 § 2 of Law no. 61/1991 read in the light of Article 26 § 1 (a) of Law no. 60/1991. Also, the argument that the authorities should have relied on Law no. 60/1991 rather than Law no. 61/1991 to impose the sanction was ill-founded because the two laws were complimentary and not mutually exclusive. To accept the applicant’s view would have meant that the instances of disturbing the public order and peace which had not been covered by Law no. 60/1991 would have gone unpunished. Given the content of the applicable legal framework which required a written notification at least three days prior to the date of the protest, the measure taken against the applicant had not violated his right to freedom of expression (see paragraphs 21-24 and 30-32 above).", "79. The Court reiterates that its power to review compliance with domestic law is limited, as it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among other authorities, Kudrevičius and Others, cited above, § 110, and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 144, 27 June 2017). Unless the interpretation is arbitrary or manifestly unreasonable, the Court’s role is confined to ascertaining whether the effects of that interpretation are compatible with the Convention (see Centre for Democracy and the Rule of Law v. Ukraine, no. 10090/16, § 108, 26 March 2020, with further references).", "80. The Court notes that nothing in the language of Laws nos. 60/1991 and 61/1991 (see paragraphs 34-35 above) would lead it to believe that the national courts’ assessment to the effect that the provisions of those two laws are complementary and not mutually exclusive was arbitrary or manifestly unreasonable (see paragraph 78 above). Moreover, the parties have not put forward any evidence to suggest that the above-mentioned conclusion by the courts goes against established legal practice. Therefore, the Court is prepared to accept that the two laws in question were complementary and could be read in conjunction.", "81. As indicated also by the national courts’ assessment, the Court notes further that a joint reading of Laws nos. 60/1991 and 61/1991 suggests that any public gathering – no matter how small or short, irrespective of its nature, namely assembly or expression, and regardless of its potential to cause disruption to ordinary life – could be declared unlawful unless a declaration had been submitted to the authorities no later than three days before the event. Regardless of whether it was coupled with other acts that could also be viewed as amounting to breaches of the public peace and order and the norms of social coexistence, this transgression on its own gave rise to a possibility for the authorities to impose a sanction for such an event.", "82. Thus, the regulatory framework in dispute provided for a broad interpretation of what constituted an event subject to prior notification and gave the authorities a rather wide discretion in imposing restrictions on such events, in the absence of the above-mentioned notification.", "83. The Court notes also that, as suggested by the Government (see paragraphs 38 and 56 above) and the conclusions of the police report (see paragraph 15 above), aside from the matter of the existence or absence of a prior notification, the conduct chosen by the applicant and the other participants to disseminate their message, namely handcuffing themselves to a car park barrier, taken on its own, could have been viewed as amounting to an unlawful act contrary to the public order and peace and to the norms of social coexistence, therefore giving rise to the possibility of the sanction being imposed on him.", "84. In the light of the above, the Court is prepared to accept that the relevant domestic legal framework as applied in the applicant’s case to impose the sanction on him was formulated sufficiently clearly in order to fulfil the requirement of foreseeability under Article 10 § 2 of the Convention.", "85. Therefore, the Court considers that the interference with the applicant’s right was “prescribed by law”.", "(iv) Legitimate aim", "86. The Court notes that the parties agreed either explicitly or implicitly that the sanction in question was aimed at protecting public order and the rights and freedoms of others (see paragraphs 53 and 57 above), even though the applicant seemed to indicate that his agreement depended on whether the aims in question could be read to imply that the authorities were seeking to prevent the disturbance of the activity of the public institution in question (see paragraph 53 above).", "87. The Court can accept that the sanction imposed on the applicant for organising or participating in the protest in question, for which no prior declaration had been made, could be aimed at the prevention of disorder and at the protection of the rights and freedoms of others (see, mutatis mutandis, Tatár and Fáber, cited above, § 32, and Novikova and Others v. Russia, nos. 25501/07 and 4 others, § 147, 26 April 2016).", "88. Therefore, it will proceed on the assumption that the measure against the applicant pursued the legitimate aims cited by the Government.", "(v) Necessary in a democratic society", "89. The Court reiterates that the test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, among other authorities, Association Ekin v. France, no. 39288/98, § 56, ECHR 2001-VIII, and Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V).", "90. The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their margin of appreciation (see Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; the Court looks at the interference complained of in the light of the case as a whole, including the content of the statement held against the applicant and its context (see News Verlags GmbH & CoKG v. Austria, no. 31457/96, § 52, ECHR 2000-I).", "91. In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient”, and whether the measure taken was “proportionate to the legitimate aims pursued” (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI). In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see Zana v. Turkey, 25 November 1997, § 51, Reports of Judgments and Decisions 1997-VII).", "92. In the applicant’s case, the Court has established that he and the other participants in the event wished to draw the attention of their fellow citizens and public officials to their disapproval of the government’s policies concerning the Roșia Montană mining project (see paragraphs 45 and 69 above). This was a topic of public interest and contributed to the ongoing debate in society about the impact of this project and the exercise of governmental and political powers green-lighting it. The Court reiterates in this connection that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or debates on questions of public interest. It has been the Court’s consistent approach to require very strong reasons for justifying restrictions on political debate, for broad restrictions imposed in individual cases would undoubtedly affect respect for the freedom of expression in general in the State concerned (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999 ‑ IV, and Feldek v. Slovakia, no. 29032/95, § 83, ECHR 2001 ‑ VIII).", "93. The Court notes in this regard that the protest action took place in a square freely open to the public (see paragraph 15 above). The event was terminated swiftly by the law-enforcement officials and the applicant and the other participants were taken to a police station and fined after having been given hardly any time to express their views (see paragraphs 9-15 and 44 above). The domestic courts seem to have dealt with the situation arising from the applicant’s protest as a matter falling primarily within the ambit of the regulations concerning public events requiring prior notification and the exercise of one’s right to freedom of peaceful assembly (see paragraphs 21 ‑ 24 and 30-32 above). Therefore, the Court finds it particularly pertinent at this junction to refer to the principles that it has established in the context of Article 11 of the Convention.", "94. It reiterates that while rules governing public assemblies, such as the system of prior notification, may be essential for the smooth conduct of public demonstrations, in so far as they allow the authorities to minimise the disruption to traffic and take other safety measures, their enforcement cannot become an end in itself (see Novikova and Others, cited above, § 163, with further references). The Court reiterates its constant position that a situation of unlawfulness, such as one arising under Romanian law from the staging of a demonstration without prior notification, does not necessarily (that is, by itself) justify an interference with a person’s right to freedom of assembly (see Kudrevičius and Others, cited above, § 150). In other words, the absence of prior notification and the ensuing “unlawfulness” of the event, which the authorities consider to be an assembly, do not give carte blanche to the authorities; the domestic authorities’ reaction to a public event remains restricted by the proportionality and necessity requirements of Article 11 of the Convention (see Primov and Others v. Russia, no. 17391/06, § 119, 12 June 2014, and Novikova and Others, cited above, § 163).", "95. Where demonstrators do not engage in acts of violence it is important for the public authorities to show a degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance (see Oya Ataman v. Turkey, no. 74552/01, § 42, ECHR 2006 ‑ XIV). The appropriate “degree of tolerance” cannot be defined in abstracto : the Court must look at the particular circumstances of the case and particularly the extent of the “disruption of ordinary life” since it is understood that any large-scale gathering in a public place inevitably creates inconvenience for the population or some disruption to ordinary life (see Primov and Others, cited above, § 145, and Novikova and Others, cited above, § 165). The actual degree of such tolerance and its specific manifestations vary on account of the particular circumstances of each case, for instance where dispersal of the event is envisaged with recourse to physical force (see Primov and Others, cited above, §§ 156-63, and Novikova and Others, cited above, § 166) or where it concerns an event which was not notified in advance to the authorities but (i) was an urgent reaction to an ongoing political event (see Bukta and Others, cited above, §§ 36-38, and Novikova and Others, cited above, § 166) or (ii) was a purely obstructive protest action which because of its very nature it is doubtful, in principle and as a practical matter, that it could be subjected to prior-notification requirements (see Chernega and Others v. Ukraine, no. 74768/10, § 239, 18 June 2019).", "96. The Court stresses that it remains in the first place within the purview of the national authorities’ discretion, having direct contact with those involved, to determine how to react to a public event (see Novikova and Others, cited above, § 169). Nevertheless, given the relevance of the principles summarised above (see paragraphs 94-95) for the present case, the Court considers that its task when dealing with the applicant’s complaint under Article 10 of the Convention as described in paragraph 91 above is to assess whether the decisions taken by the authorities in relation to his protest duly considered the extent of the “disruption of ordinary life” caused by it (see, mutatis mutandis, Novikova and Others, cited above, § 168).", "97. In this connection, the Court notes that when dismissing the applicant’s challenge against the police report and the fine imposed on him, the national courts did not assess the level of disturbance his actions had caused, if any. They merely observed that the applicant had failed to comply with the prior-declaration requirement in respect of a situation that, in their view, had doubtless required one and that his having handcuffed himself to the barrier and the expression made could be considered to be acts that had breached the public peace and order and the norms of social coexistence (see paragraphs 21-24 and 30-32 above).", "98. The Court reiterates that, as acknowledged also by the national courts, the proportionality principle demands that a balance be struck between the requirements of the purposes listed in Article 11 § 2 on the one hand, and those of the free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places, on the other (see Kudrevičius and Others, cited above, § 144). Nevertheless, the Court notes that the national courts did not seek to strike this balance giving the preponderant weight to the formal unlawfulness of the event in question (see Obote v. Russia, no. 58954/09, § 43, 19 November 2019).", "99. The Court notes that as far as the national courts’ assertion of a prior notification of the event staged by the applicant being required is concerned, it was not accompanied by any apparent consideration of the fact whether, given the number of participants, such a notification would have served the purpose of enabling the authorities to take necessary measures such as those described in paragraph 94 above in order to guarantee the smooth conduct of the event (see, mutatis mutandis, Novikova and Others, cited above, § 171). It further notes that the application of that rule to expressions (see paragraph 69 above) – rather than only to assemblies – would create a prior restraint which is incompatible with the free communication of ideas and might undermine freedom of expression (see Tatár and Fáber, cited above, § 40).", "100. The authorities’ impugned actions disregarded the emphasis repeatedly placed by the Court on the fact that the enforcement of rules governing public assemblies should not become an end in itself (see the case-law cited in paragraphs 94 above; and also Kudrevičius and Others, cited above, § 155; and Obote, cited above, § 42).", "101. The Court notes, finally, as pointed out also by the national courts, that the fine imposed on the applicant for taking part in the event in question was the minimum statutory amount envisaged for the impugned contravention and the applicant did not argue or submit evidence that paying the fine was beyond his financial means. Nevertheless, it reiterates that the imposition of a sanction, administrative or otherwise, however lenient, on the author of an expression which qualifies as political (see paragraph 92 above) can have an undesirable chilling effect on public speech (see, mutatis mutandis, Tatár and Fáber, cited above, § 41).", "102. In the light of the above, the Court considers that the decision to restrict the applicant’s freedom of expression was not supported by reasons which were relevant and sufficient for the purposes of the test of “necessity” under Article 10 § 2 of the Convention. The interference was thus not necessary in a democratic society within the meaning of Article 10 of the Convention. There has accordingly been a violation of that Article interpreted in the light of Article 11.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "103. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "104. The applicant claimed 113 euros (EUR) in respect of pecuniary damage corresponding to the amount of the fine imposed on him by the authorities. He submitted copies of a receipt attesting to the payment of the amount claimed.", "105. The applicant also claimed EUR 5,000 in respect of non-pecuniary damage for the violation of his rights by the national authorities.", "106. The Government argued that the applicant was not entitled to an award in respect of pecuniary damage given the reasons provided by the national authorities for their actions.", "107. As to the applicant’s claim in respect of non-pecuniary damage, the Government argued that it was excessive and that the possible finding of a violation would constitute sufficient just satisfaction in his case.", "108. The Court notes that there is a clear link between the fine imposed on him by the national authorities and the amount paid by him. The Court therefore grants the applicant EUR 113, plus any tax that may be chargeable, in respect of pecuniary damage.", "109. As regards the applicant’s claim in respect of non-pecuniary damage, the Court considers that a mere finding of a violation by the Court is insufficient to compensate the applicant for the sense of injustice and frustration which he must have felt on account of the sanction imposed on him. Making its assessment on an equitable basis, the Court therefore awards the applicant EUR 5,000, plus any tax that may be chargeable, in respect of non-pecuniary damage.", "Costs and expenses", "110. The applicant also claimed EUR 1,872 in respect of the costs and expenses incurred for his legal representation before the Court, to be paid directly to his representative. He submitted an agreement signed by him with his lawyer as regards the hourly rate charged by the lawyer, and a breakdown of the number of hours worked by the lawyer on the case, totalling EUR 1,872.", "111. The Government argued that the Court should grant the applicant only an amount which corresponded to his actual expenses which had been proven and necessarily incurred.", "112. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the amount claimed by the applicant for costs and expenses, the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 1,872 in respect of his lawyer’s fees, plus any tax that may be chargeable to the applicant. This sum is to be paid directly into the bank account of the applicant’s representative (see, mutatis mutandis, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016).", "Default interest", "113. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1977 and lives in Bucharest.", "6. On 11 October 2009 the EcoPolis association, founded by the applicant and four other associates, opened proceedings before the Bucharest District Court to seek registration in the Register of Associations and Foundations kept by that court. It also asked the court to grant it legal personality.", "7. The association ’ s goal, as declared in its memorandum of association ( act constitutiv ) and in Article 2 of its articles of association ( statutul asociației ), was that of promoting the principles of sustainable development at the public policy level in Romania ( promovarea principiilor dezvoltării durabile la nivelul politicilor publice din România ). The association ’ s objectives, as declared in Article 7 of its articles of association, were: to increase expertise in the development of sustainable public policies in Romania ( creşterea expertizei ȋn elaborarea politicilor publice durabile din România ); to improve the process of the development of sustainable public policies by facilitating public participation in and access to relevant information about the environment; to increase the accountability of the relevant official bodies by scrutinising the implementation of public policies with an impact on the environment; to facilitate the access of official bodies to best practices by examining the Government ’ s environmental initiatives in a European context; to ensure transparency in the work of public institutions and increase their responsibility for their actions in relation to other citizens; to review whether public institutions worked on the basis of principles of sustainability; and to defend the right to a clean environment, as provided by international treaties. The activities envisaged by the association in order to achieve its objectives, as declared in Article 8 of its articles of association, were: research and analysis; public debates and conferences; monitoring the implementation of European Union directives; public communication campaigns; opinion polls; reviewing the development and implementation of public policies in the environmental field; training; raising citizens ’ awareness; informing people of matters of public concern; raising the awareness of the community and of public authorities about the need to protect the environment; organising meetings between citizens and representatives of public authorities; organising debates and opinion polls on issues impacting the environment; developing programmes in partnership with public authorities; active involvement of citizens in the development of public policies and the decision - making process; improving the legal framework; setting up annual prizes for environmental activities; awarding scholarships for promoting sustainable development; networking with similar national and international organisations; supporting and defending the association ’ s members and volunteers; and other lawful activities.", "8. By an interlocutory judgment of 24 October 2009, delivered in private, the Bucharest District Court granted the association legal personality and ordered its registration in the Register of Associations and Foundations. The court held that the organisation had attached all the lawfully required documents to the application for registration and that the documents had complied both in form and content with the requirements set out by Government Ordinance no. 26/2000. Moreover, the goal set by the association complied with the provisions of Articles 1 and 4 of that Ordinance.", "9. The Bucharest Public Prosecutor ’ s Office lodged an appeal on points of law ( recurs ) against the interlocutory judgment of 24 October 2009. It argued that it interpreted the association ’ s declared goal as belonging to the field of activities of a political party. That interpretation was supported by the association ’ s objectives and by the activities it planned, as set out in Articles 7 and 8 of the articles of association. However, a political party could not be registered under the provisions of Government Ordinance no. 26/2000.", "10. By a final judgment of 10 February 2010 the Bucharest County Court allowed the appeal on points of law by the Public Prosecutor ’ s Office and rejected the organisation ’ s request for registration. It held that the goal of the association, as declared in its memorandum and articles of association, was that of promoting the principles of sustainable development at the public policy level in Romania. Also, according to Article 7 of its articles of association, one of the association ’ s objectives was to increase expertise in the development of sustainable public policies in Romania. The court considered that the concepts used by the organisation had been very general and had run the risk of being understood as belonging to the field of activities of political parties. The association ’ s objectives could likewise have been interpreted as belonging to the realm of activity of a political party, although Government Ordinance no. 26/2000 expressly prohibited the use of the ordinance for the registration of political parties." ]

[ "II. RELEVANT DOMESTIC LAW", "11. The relevant provisions of Government Ordinance no. 26/2000 on associations and foundations read as follows:", "Article 1", "“ ...", "(3 ) Political parties, trade unions and religious organisations are not covered by the present ordinance. ”", "Article 7", "“(1) Any of the associates ... may apply for registration of the association in the Register of Associations and Foundations kept by the registry of the court where the association shall have its main office.", "(2) The following documents shall be attached to the application for registration : ( a) the memorandum of association; ( b) the articles of association; ... ”", "Article 8", "“(1) An association gains legal personality from the moment of its registration in the Register of Associations and Foundations.", "( 2 ) Within three days of the registration of the application and of the documents required under Article 7(2), the judge assigned by the president of the court shall examine their lawfulness and shall order the registration of the association by an interlocutory judgment .. .”", "Article 9", "“(1) If the lawful requirements for registration have not been met, the judge shall, after the expiry of the time-limit set out in Article 8(2), summon in chambers the representative of the association and ask him in writing to resolve any irregularities ... ”", "Article 10", "“ (1) If the irregularities have been resolved within the set time-limit, the judge ... shall order the registration of the association.", "(2) If the irregularities have not been resolved, or the representative of the association is absent without justification after being lawfully summoned, the judge shall reject the application for registration ... ”", "Article 11", "“(1) The interlocutory judgments allowing or dismissing the request for registration are subject to appeal on points of law only ... ”", "Article 56", "“ (1) The association shall be dissolved by a decision of a court of law at the request of an interested party if : ( a) the association ’ s goal or activity has become unlawful or is contrary to public order; ( b) it has achieved its goals by means that are unlawful or contrary to public order; ( c) the association has pursued a different goal from that for which it was founded; ( d) the association has become bankrupt; and ( e) the association has initiated activities requiring preliminary administrative authorisation without having such authorisation ... ”", "12. The relevant provisions of Law no. 14/2003 on political parties read as follows:", "Article 2", "“Through their activities political parties promote national values and interests, political pluralism, shape public opinion, take part in elections and in establishing public authorities, and lawfully encourage the participation of citizens in elections. ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION", "13. The applicant complained under Article 11 of the Convention of a violation of his right to freedom of association, arguing that the rejection by the domestic courts of the application for registration of the association founded by him and four other associates had not been necessary in a democratic society and that the courts had failed to provide relevant and sufficient reasons for that restriction. The relevant part of the aforementioned Article reads as follows:", "“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”", "A. Admissibility", "14. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submission", "(a) The applicant", "15. The applicant contested the Government ’ s claim that the association had been intended to carry out activities that could have been considered to fall within the field of activities of a political party and that he and his co ‑ founders had chosen that form of organisation in order to avoid the special legal provisions regulating political activity. The applicant submitted that he had wished to found an association and not a political party.", "16. The applicant contended that the domestic courts had interfered with his right to freedom of association by refusing to register the EcoPolis association, but agreed that the interference had been prescribed by law, namely the relevant Articles of Government Ordinance no. 26/2000.", "17. The applicant submitted that although the first-instance court had not identified any irregularities with regard to the association ’ s application for registration and had allowed it, the last-instance court had, as in similar cases that had been brought before the Court against Romania, failed to grant the association any time to modify the provisions of its articles of association which had been considered contrary to Government Ordinance no. 26/2000. The last-instance court had allowed the appeal on points of law by the Public Prosecutor ’ s Office after the initial hearing, in the absence of the association ’ s legal representative and without taking any of the other steps required by Article 9 of Government Ordinance 26/2000.", "18. The applicant contended that Article 9 of the Government Ordinance no. 26/2000 did not state clearly whether it applied to appeal proceedings. He further argued that in accordance with that provision he should have been informed in writing of the need to rectify the irregularities in the articles of association pending a new hearing of the case, even though the aforementioned provisions might have been insufficiently clear or compatible with the rule of law and the last-instance court might have considered that they applied only to first-instance court proceedings. He argued that in the case of Argeş College of Legal Advisers v. Romania ( no. 2162/05, § 40, 8 March 2011 ) the Court had already considered that the main purpose of the option provided by Article 9 of Government Ordinance no. 26/2000 had been to give an association applying for registration the opportunity to comply with all the necessary formalities during the registration proceedings, should there be any irregularities in the initial application.", "19. The applicant submitted that the last-instance court had rejected the application for registration by relying only on the provisions of the association ’ s memorandum and its articles of association. He considered, however, that the finding that some provisions of the memorandum and articles of association could have amounted to activities specific to political parties had been mere speculation and did not amount to compelling reasons that could have justified the interference with his freedom of association. In the applicant ’ s opinion, the goal of the association had certainly not been one that could have been attributed exclusively to political parties.", "20. The applicant argued that the Government ’ s claim that the dismissal of the registration under Government Ordinance no. 26/2000 had not prevented him from making an application for registration of a political party was absurd, given that he and his co-founders had intended to establish an association and that the application for registration had contained the legal grounds for the application. Moreover, if they had considered it necessary, the domestic courts could have asked the interested parties to debate the necessity of changing the legal classification of the application.", "21. The applicant also contended that the fact that the domestic courts had considered that the principles promoted by the association had been very general and had given rise to the possibility of their being classified as belonging to the domain of political parties could not have amounted to sufficient and compelling evidence of a threat to national security or to public safety and order. There had also been no similarity between the activities listed by the founding members of the association in the organisation ’ s articles of association and the activities carried out by political parties as defined by Law no. 14/2003 on political parties.", "22. The applicant contested the Government ’ s submission that the measure in question had purported to prevent a possible abuse by the association in acting as a political party and had been aimed at upholding the rules regulating political parties. In so far as the association had not existed before and neither it nor its founding members had engaged in activities of a political nature, the refusal of the registration appeared disproportionate to the aim pursued and had been unnecessary in a democratic society. That was all the more so since Government Ordinance no. 26/2000 allowed the State authorities to dissolve any association which had pursued goals that were different from the ones for which it had been founded.", "(b) The Government", "23. The Government submitted that the applicable legal provisions had allowed the domestic courts to refuse the registration of associations in certain circumstances. Those rules had been accessible, foreseeable in respect of their effects and compatible with the rule of law. The domestic courts had made their own assessment of the application for registration and had rejected it because they had considered that the goal of the association and the means to be employed to achieve them had been characteristic of political parties, which could not have been registered under the legal framework relied on by the applicant.", "24. The Government contended that the interference had pursued a legitimate goal, namely the protection of the domestic legal order, and had aimed to prevent a possible abuse of the law by the association acting as a political party.", "25. The Government acknowledged that the applicant ’ s intention could not have been confirmed by reference to the actual conduct of the association, as it had never been registered. They also acknowledged that the goal of founding a political party had not been explicitly stated in the memorandum of association and that any unstated intention that the applicant might have had as regards political activity would have depended on a combination of future events. However, they contended that the memorandum of association had afforded the organisation broad-ranging means with which to accomplish its goals without having had to expressly mention a desire to register as a political party. Thus, behind its innocuous appearance as an ordinary association, the organisation had de facto thought of itself as being a political party. Consequently, the domestic courts had refused the association ’ s registration and had based their reasoning on the realities behind the appearance.", "26. The Government also argued that by reviewing the compliance of the application for registration with the relevant domestic rules regulating that field, the domestic courts had simply exercised their power to review the lawfulness of the application and to reject any ambiguous or misleading clause that could have potentially led to an abuse of the law. They also contended that the dismissal of the association ’ s application for registration under Government Ordinance no. 26/2000 had not deprived the organisation of the possibility of submitting another application for registration as a political party under Law no. 14/2003 on political parties. The fact that the domestic courts had decided that the latter legislation had been applicable in respect of the association ’ s application for registration could not have been considered an infringement of the applicant ’ s right of freedom of association, as the applicant had not been free to choose the domestic rules applicable to his association.", "27. The Government submitted that the domestic courts had not imposed a general ban on the registration of the association. Therefore, the applicant had the option of either modifying the association ’ s articles or of applying for its registration as a political party.", "28. The Government argued that in accordance with the Court ’ s case ‑ law the State ’ s margin of appreciation could include a right to interfere with an association ’ s internal organisation and functioning in the event of non-compliance with reasonable legal formalities applying to its establishment, functioning or internal organisational structure. Consequently, they contended that the domestic courts ’ refusal to register the association had met a pressing social need and had been proportionate.", "29. The Government argued that, as in the case of Gorzelik and Others v. Poland ( [GC], no. 44158/98, ECHR 2004-I ), the authorities had not prevented the applicant from forming an association to express and promote the distinctive features of a union, but from creating a legal entity which through registration under Government Ordinance no. 26 /2000, given its stated goal, would inevitably have become entitled to special status under the law applicable to political parties.", "2. The Court ’ s assessment", "(a) General principles", "30. The Court reiterates that in matters of freedom of association, the right enshrined in Article 11 includes the right to form an association in order to act collectively in a field of mutual interest (see The Argeş College of Legal Advisers, cited above, § 31, and Gorzelik and Others, cited above, § § 88-93).", "31. The Court further reiterates that the way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned. The Court has repeatedly referred to the direct relationship that exists between democracy, pluralism and freedom of association, and it has established the principle that only convincing and compelling reasons can justify restrictions on freedom of association. All such restrictions are subject to rigorous supervision by the Court (see, among many other authorities, Association of Victims of Romanian Judges and Others v. Romania, no. 47732/06, § 25, 14 January 2014, and Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 4 1342/98, 41343/98 and 41344/98, §§ 86 ‑ 89, ECHR 2003 ‑ II ). Consequently, in determining whether a necessity within the meaning of Article 11 § 2 exists, the States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision, embracing both the law and the decisions applying it, including those given by independent courts (see Eğitim ve Bilim Emekçileri Sendikası v. Turkey, no. 20641/05, § 49, ECHR 2012).", "32. In its scrutiny, the Court ’ s task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they delivered in the exercise of their discretion; it must therefore look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see The Argeş College of Legal Advisers, cited above, § 33, and Partidul Comuniștilor (Nepecerişti) and Ungureanu v. Romania, no. 46626/99, § 49, ECHR 2005 ‑ I ).", "(b) The application of those principles in the instant case", "(i) Existence of interference", "33. In so far as the Government ’ s submissions may be understood to amount to a claim that the refusal of the domestic courts to register the EcoPolis association had not interfered with the applicant ’ s right to freedom of association, the Court observes that it has already established that such a refusal by the authorities amounted to an interference with the aforementioned right of the association or of its founding members (see Association of Victims of Romanian Judges and Others, cited above, § 20; The Argeş College of Legal Advisers, cited above, § 3 4; and Gorzelik and Others, cited above, § § 88-93). Consequently, notwithstanding the Government ’ s submission, the Court has no reason to hold otherwise.", "( ii) Justification of the interference", "34. The Court is satisfied that the interference in question was prescribed by law, namely by Government Ordinance no. 26/2000, and that it pursued a legitimate aim, namely the protection of public order.", "35. It must therefore proceed to examine whether the interference at issue, namely the refusal by the domestic courts to register the association, met a “pressing social need” and was “proportionate to the legitimate aims pursued”.", "36. The Court notes in this connection that, in so far as the association in question had not been active before applying for registration, the national courts based their refusal of the application for registration solely on an assessment of whether the memorandum and articles of association submitted to them complied with the provisions of Government Ordinance no. 26/2000. The Court will therefore rely on these documents as the basis for assessing whether the interference in question was necessary (see, among other authorities, Refah Partisi (the Welfare Party) and Others, cited above, § 116, and Association of Victims of Romanian Judges and Others, cited above, § 28 ).", "37. The Court observes from the reasons put forward by the Bucharest County Court that the main problem with the registration of the association was the provisions of its memorandum and articles of association, which used general concepts and led the last-instance court to believe that the organisation wanted to carry on activities that could have been perceived as belonging to the field of activity of political parties, which by their nature could not have been registered under the provisions of Government Ordinance no. 2 6/2000. In that decision, the County Court had regard to the association ’ s goal and to part of Article 7 (defining the objectives of the association ) of its articles of association.", "38. The Court further notes that Articles 9 and 10 of Government Ordinance no. 26/2000 provided that the judge reviewing an application for registration could allow some time for the person making the application to remedy any irregularities affecting the registration after that person had been summoned and been asked in writing to do so. This option was explicitly provided by law for first- instance court proceedings, although no express provisions had been made in respect of appeal proceedings.", "39. The Court reiterates that the main purpose of the aforementioned legal provision was to allow an association making an application for registration to comply with all the necessary formalities during the registration proceedings, should there be any irregularities in the initial application (see The Argeş College of Legal Advisers, cited above, § 4 0 ).", "40. In the applicant ’ s case, the first-instance court did not identify any irregularity in respect of the association ’ s application for registration and therefore allowed it. Following the appeal on points of law lodged by the Public Prosecutor ’ s Office, the last-instance court identified some irregularities in the application. However, it does not appear from the evidence available in the case file that the applicant was either summoned in chambers, or asked in writing to remedy those irregularities. Given that the national law aimed to give associations a chance to remedy any irregularities during the registration process, the decision of the last-instance court to dismiss the application for registration without allowing the applicant any time or giving him an opportunity to remedy the deficiencies found by the court appears to contradict the purpose and spirit of the law (see, mutatis mutandis, The Argeş College of Legal Advisers, cited above, § 40).", "41. The Court notes that the last-instance court ’ s statements seem to have been based on mere suspicions regarding the true intentions of the association ’ s founders and the activities it might have engaged in once it had begun to function (see, mutatis mutandis, Sidiropoulos and Others v. Greece, 10 July 1998, § 46, Reports of Judgments and Decisions 1998 ‑ IV, and Bozgan v. Romania, no. 35097/02, § 23, 11 October 2007). The provisions of the association ’ s founding instruments gave no indication that its goal was the setting up of a political party or that it had intended to involve itself in political activities (contrast Bota v. Romania (dec.), no. 24057/03, 12 October 2004). Also, there is no evidence in the case file that the association ’ s founding members had intended to use their association as a de facto political party. Their organisation, had it been founded as an association, would have not been able to take part in the elections and in establishing public authorities, i.e. in the activities, mentioned in Article 2 of Law no. 14/2003 (see paragraph 12 above). Therefore, the Court sees no need to speculate whether the said Law defines any field of activity as an exclusive domain of political parties, which an association is not allowed to enter, and whether the goal and objectives of the applicant ’ s association as described by its memorandum and articles of association could have had any attributes that entered that hypothetical domain.", "42. As regards the Government ’ s arguments that the decision of the last ‑ instance court had not deprived the organisation of the possibility of making another application for registration as a political party under Law no. 14/2003 on political parties, the Court notes that the applicant expressly stated in his submissions before it that he and his co-founders had acted with the sole purpose of registering an association and not a political party. Likewise, in so far as the Government suggested that the association could have made a second application for registration after amending its articles of association, the Court observes that it has already established that imposing such a duty on the applicant would have amounted to a disproportionate burden given that the domestic legislation had allowed for the possibility of having the potential irregularities remedied during the course of the first set of registration proceedings (see Bozgan, cited above, § 29 ).", "43. Furthermore, the Court also notes that domestic law provides for the possibility of dissolving an association should it be demonstrated that the association ’ s goal or activity has become unlawful or contrary to public order or that the association has achieved its goals by means that were unlawful or contrary to public order (see The Argeş College of Legal Advisers, cited above, § 42 ).", "44. In the light of the foregoing considerations, the Court is not convinced that the factual circumstances of the present case are similar to those in the case of Gorzelik and Others ( cited above ), where the applicants had refused to amend the provisions of the articles of association without any perceptible practical purpose other than preparing the ground for enabling their association and its members to benefit from the electoral privileges afforded by Polish election laws even after the authorities had notified them during the registration process that the registration of their association would not be possible in the absence of such amendments. Therefore, the Court cannot accept the Government ’ s submission that the conclusion reached by the Court in that case also applies to the present one.", "45. Taking into account all of the above, the Court considers that the reasons invoked by the authorities for refusing registration of the EcoPolis association were not guided by any “pressing social need”, nor were they convincing and compelling. Consequently, a measure as radical as the refusal to register the association, taken even before the association had started operating, appears disproportionate to the aim pursued (see Association of Victims of Romanian Judges and Others, cited above, § 34 ).", "46. That being so, the interference cannot be deemed necessary in a democratic society.", "47. There has accordingly been a violation of Article 11 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "48. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "49. The applicant claimed 5,000 euros (EUR) in respect of non ‑ pecuniary damage. He argued that the decision of the last-instance court had prevented him from founding a non-profit, non-governmental organisation and from pursuing his calling as an environmental activist by developing new projects in that field. The decision of the last-instance court had caused him feelings of uncertainty about the possibility of carrying out activities benefiting the community and had infringed his right to dignity and honour in so far as his desire to help the community had been met by the authorities ’ suspicion that he had intended to breach the law. The authorities had also continued to disregard his right to freedom of association, in spite of the Court ’ s repeated findings of a violation of Article 11 in Romanian cases. The clemency showed by the Court in previous cases, when it had considered that the mere finding of a violation amounted to sufficient just satisfaction for an applicant, had failed to improve the authorities ’ behaviour.", "50. The Government contended that, in line with the Court ’ s case-law, the finding of a violation provided sufficient just satisfaction for the applicant. In that connection, they submitted that if the Court found a violation of the Convention provisions in the present case, the relevant civil procedure rules allowed the applicant to lodge an extraordinary appeal to review proceedings ( revizuire ) in order to ask the domestic courts to restore the situation that had existed before the alleged breach of the Convention.", "51. The Court considers that the applicant must have suffered non ‑ pecuniary damage as a result of the infringement of his right guaranteed by Article 11 of the Convention, which cannot be made good by the mere finding of a violation. Consequently, making an assessment on an equitable basis, the Court awards the applicant EUR 4, 50 0 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable.", "B. Costs and expenses", "52. The applicant also claimed EUR 1,847 for the costs and expenses incurred before the Court to be paid directly to his representative. These included EUR 1,697 in lawyer ’ s fees (charged at between EUR 5 and EUR 120 per hour depending on the complexity of the tasks performed by the lawyer) and EUR 150 for secretarial and mailing expenses. The applicant submitted an agreement between him and his counsel and a breakdown of the number of hours worked by the lawyer on the case.", "53. The Government submitted that the amount of costs and expenses claimed by the applicant was speculative and excessive. They argued that the applicant had not produced any relevant documents in order to substantiate his claims and that therefore he was not entitled to an award in respect of costs and expenses.", "54. In accordance with the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the complexity of the issues, the lawyer ’ s work and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 8 00 in respect of costs and expenses, to be paid directly into the bank account indicated by the applicant ’ s representative.", "C. Default interest", "55. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. Mr Anders Fredin, an agricultural engineer, and his wife Mrs Maria Fredin own several parcels of land in the municipality of Botkyrka. On the land there is a farm and a gravel pit. The parcel where the gravel pit is located consists of 27 hectares and is called Ström 1:3. It was specifically created in 1969 from parts of the other properties with a view to the exploitation of the pit.", "9. When Mr Fredin ’ s mother bought the land in 1960 the commercial exploitation of the gravel pit had been at a standstill since the middle of the 1950s. In the meantime, gravel had been taken only for use on the farm. The Fredins were eager for exploitation to resume and, on 20 March 1960, they signed a licence agreement with two companies (\"the Jehanders\"), granting them, for an annual fee, the exclusive right to extract gravel from the pit for fifty years. The Jehanders subsequently acquired several other gravel pits in the vicinity and thus obtained, so the applicants allege, a quasi-monopoly on gravel production in the region.", "10. In 1963 a prohibition on the extraction of gravel without a permit was introduced through an amendment to the Nature Protection Act 1952 ( naturskyddslagen 1952:688). On 11 December 1963 the County Administrative Board ( länsstyrelsen ) of Stockholm County granted Mr Fredin ’ s parents the necessary permit. This provided, inter alia, that exploitation had to be in conformity with a plan drawn up in May 1962; in particular, it had to be carried out in three stages, each of which should not exceed ten years. In addition, restoration works had to be carried out continuously during each stage and financial security lodged to cover the costs thereof.", "11. On 4 September 1969 Mr Fredin acquired a fifth of the property by way of a gift from his mother.", "12. On 1 July 1973 an amendment to the Nature Conservation Act 1964 ( naturvårdslagen 1964:822 - \"the 1964 Act\") - which had left unaffected the need for a permit - empowered the County Administrative Board to revoke permits that were more than ten years old (see paragraph 35 below).", "13. On 31 July 1977 the applicants bought the remainder of the property, which thenceforth belonged as to two-thirds to Mr Fredin and as to one-third to his wife. The County Administrative Board was informed of the change in ownership.", "14. Despite a number of requests over the years, the Jehanders had, at the time of the applicants ’ purchase, still not put the gravel pit to commercial use. The Fredins accordingly instituted court proceedings for breach of contract, but the dispute was resolved by a friendly settlement according to which the licence agreement was deemed to have terminated with effect from 1 October 1979.", "15. On 3 October 1979 the applicants requested that the permit to take gravel should be formally transferred to them. With the consent of Mr Fredin ’ s parents they began to exploit the pit in 1980, partly through a new licensee. At about this time the County Administrative Board offered to redeem the exploitation permit from the applicants for a sum, according to them, of around 50,000 Swedish kronor. However, the applicants did not accept the offer. As from 1983 they conducted part of the business themselves through Kagghamra Grus AB, a limited liability company they owned.", "16. On 30 May 1980 the County Administrative Board granted the applicants an exemption from the general prohibition in the 1964 Act against building near the seashore and allowed them to build a quay with shiploading equipment. The exemption was valid until further notice, but not for longer than the permit to exploit gravel. The Board stated that the \"decision [did] not imply that any position [had] been taken as to the possibility of a future reconsideration of the gravel exploitation activities on the property\". The applicants built the quay at a cost of 1,000,000 kronor and also invested some 1,250,000 kronor in the gravel exploitation business over the period from 1980 to 1983.", "17. On 24 April 1981 the County Administrative Board asked the applicants to lodge a financial security of 40,000 kronor to cover restoration costs, this amount being subsequently increased to 75,000 kronor.", "18. After the applicants had provided the security required, the County Administrative Board, by \"partial decision\" of 14 April 1983, amended its decision of 11 December 1963 (see paragraph 10 above) by transferring the permit to them. The Board added that it planned to issue new directives concerning restoration work and that, in view of the 1973 amendment of the 1964 Act (see paragraph 12 above), it intended to re-examine the permit question in 1983 with a view to a possible termination of the activities.", "19. On 25 August 1983 the County Administrative Board notified the applicants that, in the interest of nature conservation, it was contemplating amending the permit so as to provide that exploitation of the gravel pit should cease by 1 June 1984.", "20. In a memorandum dated 14 May 1984, the County Administrative Board indicated two possible ways of discontinuing the exploitation. One was to stop extraction as soon as possible because the environment was being damaged and there was already a satisfactory supply of gravel in the region. The other was to allow the exploitation to continue for a couple of years, thereby making it possible to give the area a natural shape.", "The memorandum was submitted to the National Environment Protection Board ( naturvårdsverket ) and to the municipality of Botkyrka. On 18 September 1984 the Board replied that it favoured the first alternative and that it considered that a reasonable exploitation-time had been afforded as the permit had been valid for twenty years. On 1 October the municipality expressed the opinion that a certain closing-down period was preferable as it would facilitate the restoration of the landscape.", "21. In a new \"partial decision\" of 19 December 1984, the County Administrative Board ordered, inter alia, that:", "(a) the exploitation of gravel should cease within three years, i.e. by the end of 1987, by which time the area should also be restored;", "(b) as from the day of the decision further extraction from certain parts of the pit be prohibited;", "(c) before 1 March 1985 the applicants should increase the security to 200,000 kronor, to cover possible restoration costs resulting from the growing activity in the pit; they should also draw up a new work plan, so that the Board could fix the final conditions for the extraction and restoration works.", "22. The applicants appealed to the Government, claiming that:", "(a) the County Administrative Board ’ s decision was in part based on insufficient scientific material;", "(b) it should not have followed the opinion expressed by the municipality of Botkyrka (see paragraph 20 above), in view of that opinion ’ s limited scope;", "(c) its decision, and also the opinion of the National Environment Protection Board, should have been based on the views of a geological expert;", "(d) it had not given the applicants ’ interests sufficient consideration and had not granted a reasonable closing-down period;", "(e) the order to submit a new extraction plan and to lodge security of 200,000 kronor constituted a financial penalty;", "(f) the prohibition on extraction from parts of the pit was unlawful as it amounted to a closing-down of the activities;", "(g) pursuant to the 1964 Act, as interpreted in the light of the Environment Protection Act 1969 ( miljöskyddslagen 1969:387) and the Water Act 1918 ( vattenlagen 1918:533), they had a protected right to exploit gravel for at least ten years from the transfer of the permit on 14 April 1983.", "23. On 26 March 1985 the County Administrative Board submitted an opinion on the appeal, stating amongst other things that it had known, from its contacts with the Jehanders (see paragraph 9 above), that no exploitation of gravel was imminent.", "24. In a decision of 12 December 1985 the Government (Ministry of Agriculture) dismissed the appeal, stating that they concurred with the County Administrative Board ’ s assessment. They ordered, however, that the validity of the permit should be extended to 1 June 1988 and that the security should be lodged on 1 March 1986 at the latest.", "25. On 9 March 1987 the County Administrative Board adopted a restoration plan for the pit.", "26. Before the expiry of the permit the applicants twice requested new permits, but to no avail. The last request was rejected by the Board on 18 May 1987. The applicants ’ appeal to the Government was dismissed on 9 June 1988, although the validity of the permit was extended until 1 December 1988.", "27. On 1 December 1988 extraction of gravel from the pit ceased. The applicants had by then almost terminated the first of the three exploitation stages provided for in the plan attached to the permit of 11 December 1963 (see paragraph 10 above).", "28. On 9 February 1989 the County Administrative Board requested the public prosecutor to institute criminal proceedings against Mr Fredin for non-compliance with the 1964 Act, in that he had not restored the gravel pit as provided for in the permit. These proceedings are still pending and the restoration work has not yet been carried out.", "29. On 14 March 1989 the County Administrative Board rejected a request by the applicants for a special extraction permit in order to enable them to comply with the 1987 restoration plan (see paragraph 25 above). Their appeal to the Government was dismissed on 21 June 1989, and their application for judicial review under the new Act on Judicial Review of Certain Administrative Decisions (lag om rättsprövning av vissa förvaltningsbeslut 1988:205), which entered into force on 1 June 1988, was rejected by the Supreme Administrative Court on 13 December 1990. These proceedings are not the object of the present complaint.", "30. As regards the impact of the revocation of the permit on the value of their property and of their wholly-owned licensee, Kagghamra Grus AB, the applicants have referred to three certificates.", "According to the first, issued by Mr Lars Carlsson, a consultant, on 17 March 1987, it appears from the accounts of the applicants ’ company that it would become insolvent without the income from the pit.", "The second certificate, drawn up on 1 September 1988 by Mr Nils Olof Rydstern, an economist, states that the applicants ’ company would have had an estimated market value of 14-18,000,000 kronor in 1988, had the applicants been able to extract gravel from 1980 onwards without any interference by the authorities. Mr Rydstern points out that this is not the company ’ s liquidation value.", "In the third certificate, dated 14 September 1988, Mr Hans Lagerqvist, a land-surveyor at the Senior Land-Surveying Authority ( överlantmäterimyndigheten ), notes that, as a result of the revocation of the permit, the gravel pit was considered in 1988 to be worth less than 1,000 kronor for general property-taxation purposes. Mr Lagerqvist ’ s own assessment, made on the assumption, inter alia, that the extraction of gravel would have continued according to the 1963 permit, concludes that the estate ’ s market value decreased by 15,500,000 kronor as a consequence of the revocation. Taking into account Mr Rydstern ’ s valuation, the total loss suffered by the applicants is estimated at approximately 28-31,000,000 kronor.", "31. The applicants have also submitted a report by Mr Dick Karlsson, a consultant, according to which, in a large number of revocation cases concerning businesses that had been carried on for several years, the County Administrative Board had not ordered the restoration of the gravel pits at issue. The Board was also said to have given the holders of the permits in question the opportunity of obtaining new ones, should the supply of gravel on the market decrease. Mr Karlsson noted that in these cases the permits had been held by two companies, including one of the Jehanders (see paragraph 9 above). He concluded that the Board ’ s decision concerning the applicants ’ permit was exceptional, in that it terminated an ongoing profitable business." ]

[ "II. RELEVANT DOMESTIC LAW", "32. The basic regulations on the protection of nature are laid down in the 1964 Act.", "33. According to section 1 of the Act, everyone must show respect and circumspection in his or her dealings with nature. In addition, all necessary measures have to be taken to limit or counteract any damage to nature which is bound to result from any works undertaken or otherwise.", "34. Section 3 provides that, in decisions on questions relating to nature conservation, other public and private interests must be duly considered.", "35. Section 18 of the Act prohibits, inter alia, extraction of gravel for purposes other than the domestic needs of the landowner without a permit from the County Administrative Board. The section also specifies that:", "\"The County Administrative Board may require a party applying for an exploitation permit to submit, on pain of the application being rejected, material showing the need for the extraction and a sufficiently detailed plan for the activities. The permit shall be made subject to such conditions as are necessary to limit or counteract the harmful effects of the enterprise on the natural environment. In the absence of special reasons to the contrary, a permit shall be valid only if sufficient financial security is lodged to ensure that the conditions prescribed are actually fulfilled. If the security given proves to be inadequate, the County Administrative Board may order that the permit shall not become effective until additional security has been lodged.", "If a prescribed measure is to be taken by someone other than the landowner, the latter must allow it to be carried out.", "If ten years have elapsed since an exploitation permit acquired legal force, the County Administrative Board may revoke the permit completely or in part or may make its renewal subject to revised conditions. If it becomes apparent that the conditions laid down do not sufficiently limit or counteract the damaging effects that the activities may have on the natural environment, the County Administrative Board may, before the expiry of the stated period, make the permit subject to such additional conditions as may be necessary.\"", "The last sub-paragraph was added on 1 July 1973. Previously an exploitation permit could not be revoked without compensation being paid to the landowner if the prescribed conditions had been complied with. According to the transitional provisions, the ten-year period was, as regards permits valid on 1 July 1973, to be calculated as from that date. The amendment also repealed certain provisions whereby a landowner could be granted compensation if he was refused a permit.", "36. Section 40 (2) of the Act provides that an appeal lies to the Government against a decision taken by the County Administrative Board. At the time of the final decision regarding the revocation question ( 12 December 1985, see paragraph 24 above), the Government ’ s decisions were not subject to any judicial review. However, since the entry into force, on 1 June 1988, of the Act on Judicial Review of Certain Administrative Decisions, the lawfulness of some decisions by the Government may be challenged before the Supreme Administrative Court.", "PROCEEDINGS BEFORE THE COMMISSION", "37. Mr and Mrs Fredin applied to the Commission on 5 March 1986. They alleged, firstly, that the revocation of the exploitation permit amounted to a deprivation of property contrary to Article 1 of Protocol No. 1 (P1-1); secondly, that they had not had access to a court to challenge certain of the Government ’ s decisions, as required by Article 6 (art. 6) of the Convention; and, thirdly, that the County Administrative Board had, in contravention of Article 14 of the Convention taken together with the above-mentioned Article 1 (art. 14+P1-1), discriminated against them because they were the sole independent operators in the area.", "38. By decision of 14 December 1987, the Commission declared the application (no. 12033/86) admissible. In its report adopted on 6 November 1989 (Article 31 of the Convention) (art. 31), the Commission expressed the unanimous opinion that there had been a violation of Article 6 § 1 (art. 6-1), but not of Article 1 of Protocol No. 1 (P1-1) taken either alone or in conjunction with Article 14 (art. 14+P1-1) of the Convention. The full text of the Commission ’ s opinion is reproduced as an annex to this judgment [*].", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)", "39. According to the applicants the revocation of their permit to exploit gravel on their property violated Article 1 of Protocol No. 1 (P1-1), which reads:", "\"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.\"", "Neither the Government nor the Commission agreed with this claim.", "40. The Court finds - and this point was not contested before it - that the revocation of the permit interfered with the applicants ’ right to the peaceful enjoyment of their possessions, including the economic interests connected with the exploitation of the gravel pit (see, mutatis mutandis, the Tre Traktörer AB judgment of 7 July 1989, Series A no. 159, p. 21, § 53).", "A. The Article 1 (P1-1) rule applicable to the case", "41. Article 1 (P1-1) guarantees in substance the right of property. It comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose. However, the rules are not \"distinct\" in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property. They must therefore be construed in the light of the general principle laid down in the first rule (see, inter alia, the Mellacher and Others judgment of 19 December 1989, Series A no. 169, pp. 24-25, § 42).", "42. There was no formal expropriation of the applicants ’ property. However, for the purposes of Article 1 of Protocol No. 1 (P1-1) the concept of \"deprivation\" covers not only formal expropriation but also measures which amount to a de facto expropriation (see, inter alia, the Sporrong and Lönnroth judgment of 23 September 1982, Series A no. 52, p. 24, § 63).", "The applicants contended that they had been the victims of such a de facto deprivation of property, whereas the Government and the Commission considered the revocation of the permit to be a measure for the control of use of property.", "43. The Court notes that the impugned measure was basically designed to control the applicants ’ use of their possessions and left unaffected their powers to take formal decisions, within the normal boundaries of the law, concerning the fate of their property Ström 1:3 and of their company, Kagghamra Grus AB. Indeed, this was common ground. It remains however to be ascertained whether the consequences of the revocation of the permit were so serious as to amount to a de facto deprivation of property.", "44. The applicants have stressed that the revocation, taken together with other existing regulatory measures, left no meaningful alternative use for Ström 1:3. They have also maintained that the revocation deprived their property of all its value.", "45. As to the first point, the Court shares the opinion of the Delegate of the Commission that the applicants ’ possibilities of using their possessions cannot be assessed by looking at Ström 1:3 in isolation. The material before the Court indicates that this parcel was created by the applicants from parts of their existing properties for the sole purpose of serving as a base for the gravel pit business; in fact, its separation from the other parcels seems to have been simply a formality. In order to take into account the realities of the situation, the effects of the revocation thus have to be ascertained in the light also of the situation obtaining on the applicants ’ surrounding properties. Nothing indicates, however, that the revocation directly affected these other properties (see paragraphs 8 and 9 above).", "Viewing the question from this perspective, the Court does not find it established that the revocation took away all meaningful use of the properties in question.", "46. With regard to the second argument, the Court first notes that the applicants are still the owners of the gravel resources on Ström 1:3. It recognises nevertheless that the revocation of the 1963 permit did have serious adverse effects, as compared with the situation which would have obtained if they had been able to continue to exploit gravel in accordance with that permit, on the income derivable from the possessions involved in this case and also on their value. One has, however, to bear in mind that, over the years, the exploitation of gravel had become more and more regulated and, in fact, restricted (see paragraphs 10 and 32-35 above). Thus, the amendment introduced on 1 July 1973 to the 1964 Act (see paragraph 35 above) empowered the authorities to revoke, without compensation, old permits, such as the applicants ’, after ten years had passed, that is after 1 July 1983. As a consequence, the applicants ’ possibilities of continuing their gravel exploitation business after this date became uncertain.", "47. In the light of the above considerations, the revocation of the applicants ’ permit to exploit gravel cannot be regarded as amounting to a deprivation of possessions within the meaning of the first paragraph of Article 1 of Protocol No. 1 (P1-1-1). It must be considered as a control of use of property falling within the scope of the second paragraph of the Article (P1-1-2).", "B. Compliance with the conditions laid down in the second paragraph of Article 1 (P1-1-2)", "1. Lawfulness and purpose of the interference", "48. The applicants did not contest the legitimacy of the aim of the 1964 Act, that is the protection of nature. The Court recognises for its part that in today ’ s society the protection of the environment is an increasingly important consideration.", "49. The applicants maintained, however, that the legal provisions underlying the impugned measure were not sufficiently foreseeable as to their effects and certain for the purposes of the Convention. In addition, they alleged, with reference to the AGOSI judgment (24 October 1986, Series A no. 108), that, as a result of the absence of any judicial review, the Swedish system did not contain adequate safeguards against abuse to meet the procedural requirements embodied in Article 1 of Protocol No. 1 (P1-1) and that, in their case, the decision had in fact been unlawful and arbitrary.", "50. The Court does not share these views.", "As regards first of all the application of the law in Mr and Mrs Fredin ’ s case, the Court ’ s power to review compliance with domestic law is limited (see, inter alia, the Håkansson and Sturesson judgment of 21 February 1990, Series A no. 171, p. 16, § 47). The evidence available does not show that the revocation decision was contrary to Swedish law: no convincing argument has been made to support the applicants ’ view that the 10-year period prescribed in the 1973 amendment to section 18 of the 1964 Act should have been calculated by the Board from the day when the permit was transferred to them instead of from 1 July 1973, the date of entry into force of the amendment (see paragraph 35 above); nor has it been shown that the authorities failed to comply with their duty under section 3 of the 1964 Act to take due account also of private and public interests other than nature conservation. Furthermore, there is no indication that the revocation decision sought to achieve some aim other than the one underlying the 1964 Act.", "With respect to foreseeability, the Court finds that the relevant provisions of the 1964 Act (see paragraphs 32-35 above) did indicate the scope and manner of exercise of the discretion conferred on the authorities with sufficient precision, having regard to the subject matter, to meet the requirements of the Convention (see, mutatis mutandis and inter alia, the Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 47, § 110, and the Eriksson judgment of 22 June 1989, Series A no. 156, p. 24, § 59).", "The Convention, however, also requires, as the applicants have pointed out, that there be a measure of legal protection in domestic law against interferences by public authorities with the rights safeguarded by the Convention (see, mutatis mutandis, the Malone judgment of 2 August 1984, Series A no. 82, p. 32, § 67). Nevertheless, the Court cannot find that the absence of judicial review amounts, in itself, to a violation of Article 1 of Protocol No.1 (P1-1). This matter falls instead to be considered under Article 6 (art. 6) of the Convention (see paragraphs 62-63 below and, inter alia, the Allan Jacobsson judgment of 25 October 1989, Series A no. 163, pp. 17-18, § 58).", "2. Proportionality of the interference", "51. It is well-established case-law that the second paragraph of Article 1 of Protocol No. 1 (P1-1-2) must be construed in the light of the principle laid down in the first sentence of the Article (see, as the most recent authority, the above-mentioned Mellacher and Others judgment, Series A no. 169, p. 27, § 48). Consequently, an interference must achieve a \"fair balance\" between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights (ibid.). The search for this balance is reflected in the structure of Article 1 (P1-1) as a whole, and therefore also in the second paragraph thereof: there must be a reasonable relationship of proportionality between the means employed and the aim pursued (ibid.). In determining whether this requirement is met, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question (see the above-mentioned AGOSI judgment, Series A no. 108, p. 18, § 52).", "52. According to the applicants, the circumstances obtaining at the time they made their investments gave them legitimate reason to believe that they would be able to continue the exploitation of the gravel pit for a long time. They claimed that the revocation at short notice of their right to do so did not strike a fair balance between the individual and general interests involved.", "The Government, with whom the Commission agreed, maintained that the revocation decision respected this fair balance.", "53. The Court notes that the applicants suffered substantial losses having regard to the potential of the gravel pit if it had been exploited in accordance with the 1963 permit (see paragraph 30 above). However, as has been indicated above (see paragraph 46), the Court does not find that reliance can be placed solely on that potential when the effects of the revocation in 1984 come to be assessed; account has to be taken also of the restrictions lawfully imposed on the use of the pit.", "54. The applicants initiated their investments seven years after the entry into force of the 1973 amendment to section 18 of the 1964 Act which clearly provided for the potential revocation of existing permits after the expiry of the 10-year period that started to run on 1 July 1973 (see paragraphs 35 and 50 above). They must therefore reasonably have been aware of the possibility that they might lose their permit after 1 July 1983. In addition, it is clear that the authorities did not give them any assurances that they would be allowed to continue to extract gravel after this date. Thus, the decision to grant them a permit to build a quay contained an express statement to the effect that that decision did not imply that \"any position [had] been taken as to the possibility of a future reconsideration of the gravel exploitation activities on the property\" (see paragraph 16 above).", "Accordingly, when embarking on their investments, the applicants could have relied only on the authorities ’ obligation, when taking decisions relating to nature conservation, to take due account of their interests, as prescribed in section 3 of the 1964 Act (see paragraph 34 above). This obligation cannot, at the time the applicants made their investments, reasonably have founded any legitimate expectations on their part of being able to continue exploitation for a long period of time.", "The Court observes in addition that the applicants were granted a three-year closing-down period and that the authorities showed a certain flexibility as this period was subsequently extended by eleven months at the applicants ’ request (see paragraphs 21, 24 and 26 above).", "55. Having regard to the foregoing and to the legitimate aim pursued by the 1964 Act (see paragraph 48 above), the Court finds that it cannot be said that the revocation decision complained of by the applicants was inappropriate or disproportionate.", "3. Conclusion", "56. In conclusion, no violation of Article 1 of Protocol No. 1 (P1-1) has been established.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 (art. 14+P1-1)", "57. The applicants also maintained that they were victims of discrimination in the enjoyment of their rights under Article 1 of Protocol No. 1 (P1-1). They invoked Article 14 (art. 14) of the Convention, which provides:", "\"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\"", "They claimed that theirs was the only case in Sweden in which the authorities had stopped an ongoing gravel exploitation business and that they had been singled out for special treatment by the County Administrative Board as they were the only independent contractors in the region.", "58. In their memorial to the Court, the applicants first recalled the Government ’ s submission before the Commission: whilst admitting that to their knowledge no other ongoing business had been closed by the authorities under the 1973 amendment to the 1964 Act, they had contended that the applicants ’ case was exceptional in that a considerable time had elapsed between the granting of the permit and the first exploitation of gravel. The applicants pointed out that the authorities had, however, been well aware of the special reasons for the delay and that, moreover, such a long lapse of time was by no means uncommon; in the near vicinity alone, there were at least two pits quite similar in this respect, but this had not led the authorities to interfere with the activities there.", "59. The Government agreed with the Commission that, as there was nothing to show that the applicants were in a position similar to that of those companies whose permits were not revoked, no issue of discrimination could arise.", "60. The Court recalls that Article 14 (art. 14) affords protection against discrimination, that is treating differently, without an objective and reasonable justification, persons in \"relevantly\" similar situations. For a claim of violation of this Article to succeed, it has therefore to be established, inter alia, that the situation of the alleged victim can be considered similar to that of persons who have been better treated.", "61. Before the Commission the applicants endeavoured to demonstrate that this condition was satisfied by submitting a report by Mr Karlsson (see paragraph 31 above). After assessing this evidence, the Commission held, however, that there was nothing to show that the applicants were in a similar situation to those companies whose permits were not revoked (paragraph 77 of its report).", "In their submissions to the Court the applicants did not try to refute the Commission ’ s assessment, nor did they adduce other evidence. Their main argument was that, since theirs was the only ongoing business to have been stopped (see paragraph 58 above), it was for the Government to explain in what respect their case was dissimilar to those of the other enterprises which had been allowed to continue their activities or to give a plausible reason for their exceptional treatment.", "The Court cannot subscribe to this argument. It is true that, in the absence of further information from the Government with regard to the implementation of the 1964 Act and, in particular, the 1973 amendment thereto (see paragraph 35 above), the Court has to presume that the applicants ’ pit is the only one to have been closed by virtue of that amendment. However, this is not sufficient to support a finding that the applicants ’ situation can be considered similar to that of other ongoing businesses which have not been closed.", "The Court perceives no reason why it should assess the evidence otherwise than did the Commission and accordingly holds that no issue of discrimination contrary to Article 14 (art. 14) arises.", "III. ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1) OF THE CONVENTION", "62. The applicants also alleged that the absence of any form of judicial review of the decisions to revoke their exploitation permit and to increase the amount of the security to be lodged constituted a violation of Article 6 § 1 (art. 6-1), the relevant part of which provides:", "\"In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing by [a] ... tribunal ...\"", "63. The Court finds that the applicants ’ right to develop their property in accordance with the applicable laws and regulations was \"civil\" within the meaning of Article 6 § 1 (art. 6-1) (see, as the most recent authority, the Skärby judgment of 28 June 1990, Series A no. 180-B, pp. 37-38, § 29). It is furthermore clear that there was a \"genuine and serious\" dispute (contestation) between them and the authorities regarding the lawfulness of the impugned decisions and that the outcome of this dispute was directly decisive for that right (ibid.). Article 6 (art. 6) was accordingly applicable: in fact this point was not in dispute before the Court.", "As the dispute in question could, at the relevant time (see paragraph 29 above), be determined only by the Government as the final instance, there has been a violation of Article 6 § 1 (art. 6-1) (see, inter alia, the above-mentioned Håkansson and Sturesson judgment, Series A no. 171, p. 20, § 63).", "IV. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION", "64. Article 50 (art. 50) of the Convention reads:", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "The applicants sought compensation for damage and reimbursement of their costs and expenses.", "A. Pecuniary damage", "65. The applicants claimed 28,000,000 Swedish kronor to cover the economic losses which, according to them, resulted from the revocation of the permit (see paragraph 30 above).", "The Court agrees with the Commission and the Government that no causal link has been established between the violation of Article 6 § 1 (art. 6-1) of the Convention found in this judgment and any of the alleged prejudice. The revocation of the permit caused the applicants considerable losses, but the Court cannot speculate as to what result they would have achieved had they been able to bring their case before a court (see, inter alia, the above-mentioned Håkansson and Sturesson judgment, Series A no. 171, p. 22, § 72).", "No award can therefore be made under this head.", "B. Non-pecuniary damage", "66. The applicants also sought 50,000 Swedish kronor as compensation for non-pecuniary damage. The Government and the Commission left the question to the Court, but observed that any award ought not to exceed 10,000 kronor.", "The Court finds that, as a result of the absence of an adequate court remedy, the applicants have suffered some non-pecuniary damage which would not be redressed merely by a finding of violation. Deciding on an equitable basis, it awards them 10,000 kronor as just satisfaction under this head.", "C. Costs and expenses", "67. The applicants sought 343,926 kronor in respect of costs and expenses. Of this amount, 267,338 kronor were referable to the proceedings in Strasbourg; 180,380 kronor represented Mr Axelsson ’ s fees, 36,383 kronor travel expenses for him and the applicants and 50,575 kronor Mr Axelsson ’ s expenses for various expert opinions. The remaining 76,588 kronor related to the applicants ’ costs in the domestic proceedings.", "The greater part of Mr Axelsson ’ s work before the Convention institutions was undoubtedly devoted to questions which were not related to the violation found; the same holds true for most of the expert opinions requested. Considering this and other relevant circumstances, and making an assessment on an equitable basis as is required by Article 50 (art. 50) of the Convention, the Court awards the applicants 75,000 kronor under this head." ]

[ "I. THE PARTICULAR CIRCUMSTANCES OF THE CASE", "A. Introduction", "8. The first and second applicants, Pine Valley and Healy Holdings, used to have as their principal business the purchase and development of land. The first of these companies, which was a wholly-owned subsidiary of the second, was struck off the register of companies on 26 October 1990 and dissolved on 6 November 1990, for failure to file annual returns for more than eight years. Since 1981 Healy Holdings too has filed no annual returns; on 14 October and 29 November 1985 a receiver to this company was appointed by two secured creditors. The third applicant, Mr Daniel Healy, is the managing director of Healy Holdings and its sole beneficial shareholder; on 19 July 1990, by order of an English court, he was adjudged bankrupt.", "9. On 15 November 1978 Pine Valley had agreed to purchase for IR £550,000 21½ acres of land at Clondalkin, County Dublin. It did so in reliance on an outline planning permission (see paragraph 29 below) for industrial warehouse and office development on the site. This permission, which was recorded in the official planning register (see paragraph 31 below), had been granted on 10 March 1977 by the Minister for Local Government to the then owner, Mr Patrick Thornton, on his appeal against the refusal, on 26 April 1976, by the planning authority (Dublin County Council) of full planning permission. One of the grounds for that refusal was that the site was in an area zoned for the further development of agriculture so as to preserve a green belt.", "10. On 15 September 1980 Dublin County Council refused the detailed planning approval (see paragraph 29 below) for which Pine Valley had applied on 16 July 1980 in reliance on the outline permission. Pine Valley thereupon sought a conditional order of mandamus, directing the council to grant such approval; such an order was granted on 8 December 1980 and was made absolute by the High Court by a decision of 27 May 1981.", "11. On 17 July 1981 Pine Valley sold the land to Healy Holdings for IR £550,000.", "B. The first Pine Valley case", "12. On 5 February 1982, on appeal by Dublin County Council against the High Court ’ s decision, the Supreme Court held that the grant of outline planning permission had been ultra vires and was therefore a nullity. It found that the relevant statutory provision (section 26 of the Local Government (Planning and Development) Act 1963) did not empower the Minister for Local Government to make, on an appeal against a refusal by a planning authority, a decision which - as in the present case - contravened the development plan (see paragraph 9 above).", "13. As a result of this decision the land could not be developed and its value was therefore substantially reduced. In June 1988 it was sold in the open market by the receiver of Healy Holdings for IR £50,000.", "C. The Local Government (Planning and Development) Act 1982", "14. With a view to validating planning permissions and approvals the validity of which came into question as a result of the Supreme Court ’ s decision, the Local Government (Planning and Development) Act 1982 (\"the 1982 Act\") was enacted. It entered into force on 28 July 1982.", "15. Section 6 of the 1982 Act provided as follows:", "\"(1) A permission or approval granted on appeal ... prior to the 15th day of March, 1977, shall not be, and shall not be regarded as ever having been, invalid by reason only of the fact that the development concerned contravened, or would contravene, materially the development plan relating to the area of the planning authority to whose decision the appeal related.", "(2) If, because of any or all of its provisions, subsection (1) of this section would, but for this subsection, conflict with a constitutional right of any person, the provisions of that subsection shall be subject to such limitation as is necessary to secure that they do not so conflict but shall be otherwise of full force and effect.\"", "The date of 15 March 1977 was that of the establishment of the Planning Board (An Bord Pleanála ), to which body the appeal functions formerly entrusted to the Minister for Local Government had been transferred by the Local Government (Planning and Development) Act 1976.", "16. The 1982 Act also dealt, in section 2, with the duration of the validity of certain permissions. Its effect was that one granted on 10 March 1977, as was the outline permission in the present case, expired on 10 March 1984. Under section 4, however, the planning authority could extend the period of validity of a permission provided, inter alia, that substantial works had already been carried out before it expired.", "17. In the course of the debate on the 1982 Act before Seanad Éireann (Upper House of Parliament) the Minister of State at the Department of the Environment was asked the following question:", "\"I understand that certain planning permissions were declared to be null and void by the Supreme Court. I agree the law has to be put right, but who is going to declare under subsection (2) whether a person ’ s constitutional rights are going to be interfered with? Does it mean another trip to the Supreme Court? What is the position? The Minister might tell us exactly what is in his mind.\"", "The Minister replied:", "\"It would be agreed by the court. Subsection (2) has been included by the parliamentary draftsman, with the agreement of the Attorney General, so as to preserve the rights of parties to any proceedings now before the courts and to assure that no court is deprived of jurisdiction regarding an issue raised in such proceedings. This subsection is also designed to meet the case of any unconstitutional interference with a property right.\" (Official report of the Parliamentary Debates of Seanad Éireann for 22 July 1982, columns 1411-1435)", "18. On 4 August 1982 Pine Valley applied to Dublin County Council for planning approval (see paragraph 29 below) on the basis of the outline permission granted in 1977; its application contained no reference to the 1982 Act. Approval was refused on 10 December on the ground that the Supreme Court had held in the first Pine Valley case that the outline permission was not valid and on four other grounds related to technical planning matters. No appeal was made to the Planning Board against this decision nor was it the subject of any other legal challenge; the applicants claimed that an appeal would have been to no avail since the Board had to confine itself to matters of proper planning and development (see paragraph 30 below) and could not give an authoritative interpretation of section 6 of the 1982 Act.", "19. A few months after the Council ’ s decision, the applicants set in motion the second Pine Valley case (see paragraphs 20-27 below). Whilst it was pending, the following steps were taken on their behalf.", "First, on 27 April 1983 their architect wrote to the Planning Board asserting that Pine Valley was excluded from the benefit of section 6(1) of the 1982 Act and asking that the applicants ’ position be reconsidered in the light of \"the injustice of the situation\". The Board replied on 2 May, regretting that it could not be of assistance.", "Secondly, on 7 September 1984 the applicants ’ solicitors wrote to the Board, requesting it to deal with the outstanding appeal which had originally been dealt with by the Minister for Local Government in March 1977 (see paragraph 9 above) in a manner subsequently found invalid. The Board replied on 23 November that the appeal in question \"does not remain to be determined by the Board\". The solicitors asked the Board to indicate the reasons for this decision, but its reply of 8 January 1985 was confined to saying that the legal advice it had received was confidential and that it could not assist any further than by stating its position.", "D. The second Pine Valley case", "1. Decision of the High Court", "20. On 11 March 1983 Pine Valley brought proceedings - in which Healy Holdings and Mr Healy were joined as plaintiffs on 25 January 1985 - against the Minister for the Environment (as the successor to the Minister for Local Government), seeking damages for breach of statutory duty, for negligent misrepresentation and for negligence. The plaintiffs later amended their pleadings to include a claim for damages against the State for breach of their constitutional rights of property.", "With the consent of the parties the High Court directed on 28 January 1985 that the question whether the plaintiffs had a cause of action be tried as a preliminary issue and that the following points of law fell to be determined in this connection:", "(a) whether an action in damages for", "( i ) breach of statutory duty;", "(ii) negligence; and/or", "(iii) negligent misrepresentation", "lay at the suit of the plaintiffs against the Minister for the Environment for granting on legal advice the outline planning permission to Mr Thornton;", "(b) whether in the circumstances pleaded the State", "( i ) had failed to vindicate the property rights of the plaintiffs and, if so, whether an action for damages lay against it;", "(ii) had in its laws respected and as far as practicable by its laws defended and vindicated the property rights of the plaintiffs and, if it had not, whether an action for damages lay against it.", "On 28 June 1985 the High Court held that no cause of action lay, whereupon the plaintiffs appealed to the Supreme Court. On 22 July they entered into an agreement amongst themselves in which Pine Valley and Healy Holdings assigned to Mr Healy, on his undertaking to pay the costs, their entire interest in the proceedings and acknowledged that any benefit resulting therefrom would accrue to him free of any claim by them.", "2. Decision of the Supreme Court", "21. On 30 July 1986 the Supreme Court unanimously dismissed the appeal ([1987] Irish Law Reports Monthly, pp. 753-768).", "22. In rejecting the claim for damages based on breach of statutory duty, Mr Justice Finlay CJ (with whose judgment Mr Justice Griffin agreed and Mr Justice Hederman concurred) found that the Minister ’ s decision to grant outline planning permission contravening the development plan did not fall into any of the categories of ultra vires decisions that would found an action for damages; in particular, there was no evidence that he had been aware that he did not possess the power he was purporting to exercise.", "23. Mr Justice Finlay CJ based his dismissal of the claims for alleged negligence and negligent misrepresentation essentially on the ground that, when granting the permission, the Minister had acted bona fide and in accordance with the advice he had obtained from his department ’ s legal advisers.", "24. As regards the claim for damages for breach of the plaintiffs ’ constitutional rights of property, Mr Justice Finlay CJ stated:", "\"With regard to this submission the first enquiry must, it seems to me, be as to whether there has been an unjust attack on the plaintiffs ’ property rights or whether an injustice has been done to them.", "What the Minister was doing in making his decision in 1977 to grant outline planning permission to the then owner of these lands was not intended as any form of delimitation or invasion of the rights of the owner of those lands but was rather intended as an enlargement and enhancement of those rights.", "The purchase of land for development purposes is manifestly a major example of a speculative or risky commercial enterprise. Changes in market values or economic forces, changes in decisions of planning authorities and the rescission of them, and many other factors, indeed, may make the land more or less valuable in the hands of its purchasers.", "I am prepared to accept that prima facie in this instance the fact that the Minister ’ s decision was ultimately found by this Court to have been a nullity, probably contributed towards a diminution in the value of the land in the plaintiffs ’ hands. That fact, itself, however, does not, in my view, necessarily mean that an injustice was done to the plaintiffs and I am certain that that does not constitute an unjust attack on the plaintiffs ’ property rights.", "The obligation of the State in Article 40.3.1 o and Article 40.3.2 o [of the Constitution of Ireland] is in the first instance, as far as practicable by its laws to defend and vindicate the personal rights of the citizen and, in the second instance, to protect as best it may from unjust attack, and in the case of injustice done, vindicate the property rights of every citizen. In its decision in the case of Moynihan v. Greensmyth [1977] Irish Reports 55, this Court in its judgment delivered by O ’ Higgins CJ, stated as follows:", "‘ It is noted that the guarantee of protection given by Article 40.3.2 o of the Constitution is qualified by the words \"as best may be\". This implies circumstances in which the State may have to balance its protection of the right as against other obligations arising from regard for the common good. ’", "I am satisfied that it would be reasonable to regard as a requirement of the common good an immunity to persons in whom are vested statutory powers of decision from claims for compensation where they act without negligence and bona fide. Such an immunity would contribute to the efficient and decisive exercise of such statutory powers and would, it seems to me, tend to avoid indecisiveness and delay, which might otherwise be involved.", "I am, therefore, satisfied that there cannot be, on the facts of this case, any question of there being a clearcut obligation imposed on the State to provide compensation for the plaintiffs in the circumstances which have arisen. I am, therefore, satisfied that the submissions made with regard to a claim for damages for breach of constitutional rights must also fail. It is not necessary for me to decide, and I express no opinion, on the question as to whether an action does lie for failure on the part of the Oireachtas to legislate in protection of personal rights, as distinct from the action to set aside or invalidate legislation which fails adequately to protect or vindicate them.\"", "25. In their judgments some members of the Supreme Court addressed the question whether the retrospective validation of planning permissions effected by section 6 of the 1982 Act (see paragraphs 14-15 above) covered the outline permission granted to Mr Thornton in 1977. This question was not expressly mentioned in the agreed points of law to be determined (see paragraph 20 above), nor did the pleadings in the case make it a contentious issue: the plaintiffs ’ plea in their statement of claim that they could not \"by operation of law avail of the retrospective validity afforded by the provisions\" of that section was not denied by the State in its defence.", "Mr Justice Finlay CJ stated that the 1982 Act contained a \"saver for cases involving constitutional rights of other persons, which would appear to exclude the plaintiffs from the benefit of such retrospective validation\".", "Mr Justice Henchy (with whom Mr Justice Griffin agreed) said that section 6 of the 1982 Act effected a retrospective validation, save where it \"would conflict with a constitutional right of any person. This meant that Pine Valley were excluded from the benefit of the section, for they had exercised their constitutional right to litigate the validity of the planning permission in the Courts\".", "Mr Justice Lardner stated:", "\"No doubt it was apprehended that s. 6(1) of the [1982 Act] might operate to reverse retrospectively this Court ’ s decision [in the first Pine Valley case] and that this might constitute an unwarrantable interference by the legislature in a decision of the courts. It seems probable that it was in these cicumstances that s. 6(2) was enacted with a view to avoiding such interference. And this subsection has been accepted by counsel for both sides in the present case as excluding the appellants from the benefit of s. 6(1).\"", "26. Certain views were also expressed as to the effects of the plaintiffs ’ being excluded from the benefit of the retrospective validation.", "Mr Justice Henchy said:", "\"[The] exclusion has been attacked by counsel for Pine Valley as being unfairly discriminatory as far as they are concerned, but in my view, while a discrimination has resulted, the primary and overriding purpose of the section was to avoid an unconstitutional invasion of the judicial domain by attempting to give validity to any planning permission which the Courts may have held to be lacking in validity. It would follow that no injustice has been done to Pine Valley by s. 6 of the 1982 Act.\"", "Mr Justice Lardner stated:", "\"... the appellants contend that to exclude them from the benefit of s. 6(1) constitutes (a) an unjust attack on their property rights or an injustice done which affects their property rights and (b) discriminates unfairly as between them and other persons who had received permissions or approvals of the Minister on appeal under Part IV of the 1963 Act and who were given the benefit of s. 6(1). In regard to the first contention it seems to me that s. 6(2) was included by the Oireachtas for the purpose of respecting and not interfering with the determination by the courts of the justiciable controversy which constituted the proceedings in [the first Pine Valley case] and of respecting the constitutional rights of the parties, both plaintiffs and defendants in that action, to have their controversy determined by the courts rather than by the Oireachtas. It may be that there is to some extent a conflict here between the right of the parties to have their controversy judicially determined by the courts and the present appellants ’ property interest. That fact in itself, however, does not in my view, necessarily mean that an injustice was done to the appellants and I am satisfied that it does not constitute an unjust attack on the appellants ’ property rights or an unlawful discrimination against them.", "Those persons (such as the appellants) who were excluded from the benefits of s. 6(1) by s. 6(2) and the other recipients of planning approval or permission on appeal from the Minister who benefited from s. 6(1) and fall outside the ambit of s. 6(2) constitute two groups who were and are differently situated and a valid and substantial reason for the discrimination which has been made by these sections has always existed.\"", "27. Mr Justice Henchy added that when the outline planning permission in respect of the land was declared invalid, there would have been a breach of the vendor ’ s covenant for title, which would have given Pine Valley a cause of action for damages against him. Alternatively, it could have recovered from him, in an action for unjust enrichment, so much of the purchase price as was attributable to the permission. Since Pine Valley had not shown that its loss could not be recovered in that way, it had failed to prove that an injustice had been done to it for the purposes of Article 40.3.2 o of the Constitution." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Constitution of Ireland", "28. The Constitution of Ireland contains the following provisions:", "Article 40", "\"1. All citizens shall, as human persons, be held equal before the law.", "This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.", "...", "3. 1 o The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.", "2 o The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.\"", "Article 43", "\"1. 1 o The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.", "2 o The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath and inherit property.", "2. 1 o The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.", "2 o The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.\"", "B. Planning law", "1. Permissions, outline permissions and approvals", "29. In addition to the 1982 Act (see paragraphs 14-16 above), the principal legislation pertinent to this case was the Local Government (Planning and Development) Act 1963, as amended by the 1976 Act of the same title (\"the 1963 Act\").", "The 1963 Act and regulations made thereunder provided for the grant by planning authorities of \"permissions\" and \"outline permissions\" for the development of land. Permissions were complete in themselves. Outline permissions amounted to a favourable decision as to the principle of the proposed development but were granted subject to the subsequent approval, by the authority or on appeal, of detailed plans, without which approval work could not be commenced. The authority had to examine an application for such approval within the parameters set by the outline permission and could not reopen the question of principle. Outline planning permissions could be revoked but only in the event of a change in circumstances relating to the proper planning and development of the area.", "30. In dealing with any application for permission or approval a planning authority was restricted, by section 26(1) of the 1963 Act, to considering \"the proper planning and development of [its] area\".", "An appeal against a decision of a planning authority lay to the Minister for Local Government or, after 15 March 1977 (see paragraph 15 above), to the Planning Board. Under section 26(5)(b) of the 1963 Act, the provisions of section 26(1) applied, subject to any necessary modifications, to the determination of any such appeal. If a question of law arose on an appeal, the Minister or the Board could refer it to the High Court for decision (section 82(3)).", "31. Under the 1963 Act, planning permissions, which had to be recorded in a register kept by the planning authority, enured for the benefit of the land in question and of \"all persons for the time being interested therein\" (sections 8 and 28(5)).", "2. Compensation", "32. Subject to a number of exceptions set out in section 56, section 55(1) of the 1963 Act gave a right to compensation in the following terms:", "\"If, on a claim made to the planning authority, it is shown that, as a result of a decision under Part IV of this Act involving a refusal of permission to develop land ... the value of an interest of any person existing in the land to which the decision relates at the time of the decision is reduced, such person shall, subject to the provisions of this Part of this Act, be entitled to be paid by the planning authority by way of compensation the amount of such reduction in value and, in the case of the occupier of the land, the damage (if any) to his trade, business or profession carried on on the land.\"", "Claims for compensation under this section had to be made within six months of notification of the decision, unless the Circuit Court accepted an application for an extension of this period (section 55(6)).", "3. Purchase notice", "33. Under section 29(1) of the 1963 Act:", "\"Where, in a case determined on an appeal under this Part of this Act, permission to develop any land has been refused or has been granted subject to conditions, then, if the owner of the land claims", "(a) that the land has become incapable of reasonably beneficial use in its existing state, and", "(b) that the land cannot be rendered capable of reasonably beneficial use by the carrying out of any other development for which permission has been granted under this Part of this Act, or for which the planning authority have undertaken to grant such permission, and", "(c) in a case where permission to develop the land was granted as aforesaid subject to conditions, that the land cannot be rendered capable of reasonably beneficial use by the carrying out of the permitted development in accordance with those conditions, he may, at any time within the period of six months after the decision (or such longer period as the Minister may allow), serve on the planning authority a [purchase notice] requiring the planning authority to purchase his interest in the land in accordance with the provisions of this section.\"", "The value of land which was the subject of such a purchase notice was to be taken to be \"the amount which the land if sold in the open market by a willing seller might be expected to realise\".", "C. Independence of the judicial function", "34. It was established by the Supreme Court in Buckley and others (Sinn Fein) v. Attorney General [1950] Irish Reports 67 that the legislature cannot intervene in respect of cases pending before the courts. On the other hand, it appears that the legislature may validly reverse the decision of the courts with retrospective effect once the proceedings are terminated, without thereby infringing the principle of judicial independence (see, for example, the Garda Siochána Act 1979, reversing the Supreme Court decision in Garvey and others v. Ireland [1981] Irish Reports 75).", "PROCEEDINGS BEFORE THE COMMISSION", "35. In their application (no. 12742/87) lodged with the Commission on 6 January 1987, the applicants submitted that the respondent State ’ s alleged failure to validate retrospectively the outline planning permission or to provide compensation or other remedy for the reduction in value of their property constituted a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention. They also complained of discrimination in the enjoyment of their property rights, contrary to Article 14 of the Convention taken in conjunction with the said Article 1 (art. 14+P1-1). Finally, they claimed that they did not have an effective remedy under Irish law in respect of the foregoing complaints as required by Article 13 (art. 13) of the Convention.", "36. The Commission declared the application admissible on 3 May 1989. In its report of 6 June 1990 (Article 31) (art. 31), it expressed the opinion that:", "(a) there had been no violation of the rights under Article 1 of Protocol No. 1 (P1-1) of Pine Valley (unanimously), of Healy Holdings (nine votes to four), or of Mr Healy (ten votes to three);", "(b) there had been a violation of the rights under Article 14 of the Convention in conjunction with the said Article 1 (art. 14+P1-1) of Healy Holdings and of Mr Healy (twelve votes to one), but not of those of Pine Valley (unanimously);", "(c) there had been no violation of Article 13 (art. 13) of the Convention (unanimously).", "The full text of the Commission ’ s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [*].", "FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT", "37. In their memorial the Government requested the Court:", "\"(1) With regard to the preliminary submissions, to decide and declare that:", "(a) the applicants cannot claim to be victims within the meaning of Article 25 (art. 25) of the Convention;", "(b) the applicants have not exhausted their domestic remedies as required by Article 26 (art. 26) of the Convention.", "(2) With regard to Article 1 of Protocol No. 1 (P1-1): to decide and declare that there has been no breach of Article 1 of Protocol No. 1 (P1-1) in the case of the applicants.", "(3) With regard to Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 ((art. 14+P1-1): to decide and declare that there has been no breach of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1) in respect of all three applicants or any of them.", "(4) With regard to Article 13 (art. 13) of the Convention: to decide and declare that there has been no breach of Article 13 (art. 13) of the Convention.", "(5) With regard to Article 50 (art. 50) of the Convention:", "(a) to decide and declare that an award of compensation is not justified or appropriate;", "(b) alternatively, if and in so far as a breach of any Article of the Convention is found, to decide and declare that a finding of violation in itself constitutes sufficient just satisfaction in the circumstances pleaded.\"", "At the hearing on 21 May 1991 the Government confirmed these submissions in substance but added that, in their view, any ruling on the question of the application of Article 50 (art. 50) should be reserved.", "AS TO THE LAW", "I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS", "A. Introduction", "38. The primary object of the Government ’ s application referring the case to the Court was to seek a ruling that the case was inadmissible on the basis of the preliminary pleas and objections they advanced.", "At the hearing on 21 May 1991 the Delegate of the Commission submitted that the Court should depart from the precedent set in its De Wilde, Ooms and Versyp judgment of 18 June 1971 (Series A no. 12) and should not review the Commission ’ s decisions on admissibility.", "39. The Court is unable to accept this submission. Since 1971, and most recently in the Cardot judgment of 19 March 1991 and the Oberschlick judgment of 23 May 1991 (Series A nos. 200 and 204), it has - when the occasion arose - exercised its jurisdiction to examine objections of the kind put forward by the Government and it does not consider that it should now depart from this case-law and practice. It notes that the objections in question were filed in due time for the purposes of Rule 48 para. 1 of the Rules of Court.", "B. Whether the applicants can claim to be \"victims\" of a violation of the Convention", "40. The Government submitted that the applicants could not claim to be \"victims\" of a violation of the Convention on the following grounds:", "(a) as regards Pine Valley :", "( i ) it had sold the land in question before the Supreme Court, in its decision of 5 February 1982, held that the grant of outline planning permission was a nullity (see paragraphs 11-12 above);", "(ii) it had been struck off the register of companies on 26 October 1990 and dissolved on 6 November (see paragraph 8 above);", "(b) as regards Healy Holdings, the receiver appointed to this company on 14 October and 29 November 1985 (see paragraph 8 above) was not a party to the proceedings before the Convention institutions;", "(c) as regards Mr Healy:", "( i ) he traced his claim through Healy Holdings as its sole beneficial shareholder;", "(ii) he ranked in priority after that company ’ s secured creditors;", "(iii) he had been adjudged bankrupt in England on 19 July 1990 (see paragraph 8 above).", "41. The Court notes that the Government raised before the Commission, prior to its admissibility decision of 3 May 1989, the substance of most of the foregoing pleas (see page 51 of the Commission ’ s report). The only exceptions are the events mentioned at (a) (ii) and (c) (iii) but these, by reason of their dates, could not have been relied on before that decision. The Government therefore did not fail to advance the relevant submissions in due time, with the result that no question of estoppel arises (see, inter alia, the Barberà, Messegué and Jabardo judgment of 6 December 1988, Series A no. 146, p. 28, para. 58).", "42. As to the merits of the pleas, the Court would make at the outset the general observation that Pine Valley and Healy Holdings were no more than vehicles through which Mr Healy proposed to implement the development for which outline planning permission had been granted. On this ground alone it would be artificial to draw distinctions between the three applicants as regards their entitlement to claim to be \"victims\" of a violation.", "More specifically, with respect to Pine Valley, neither its sale of the land nor its later dissolution alters the fact that it was for a certain period of time, as one of those vehicles, the owner of the property to which the planning permission attached. Indeed, it was this company that applied for planning approval in August 1982 and initiated the proceedings in the second Pine Valley case (see paragraphs 18 and 20 above). In the Court ’ s view, this suffices to permit a claim of violation to be made on its behalf.", "The Government ’ s remaining pleas all turn, directly or indirectly, on the financial status of Healy Holdings and Mr Healy. Whilst that status may, of course, be of importance or have effects on the domestic level, it is, in the Court ’ s opinion, of no relevance as far as entitlement to claim to be a victim of a violation is concerned. Insolvency cannot remove the right which Article 25 (art. 25) of the Convention confers on \"any person\".", "43. The Court thus concludes that the Government ’ s pleas under this head must be dismissed.", "C. Whether the applicants had failed to exhaust domestic remedies", "44. The Government submitted that the applicants had not exhausted domestic remedies because they had failed:", "(a) as regards Dublin County Council ’ s decision of 10 December 1982 refusing planning approval (see paragraph 18 above):", "( i ) to seek judicial review thereof;", "(ii) to appeal to the Planning Board (see paragraph 30 above);", "(iii) to seek compensation under section 55 of the 1963 Act (see paragraph 32 above);", "(iv) to have recourse to the machinery whereby a planning authority may be required to purchase land in respect of which permission to develop has been refused on appeal (section 29 of the same Act; see paragraph 33 above), such recourse having been precluded by the applicants ’ own failure to appeal to the Planning Board;", "(b) as regards the 1982 Act (see paragraphs 14-15 above):", "( i ) to seek a court declaration that they were entitled to the benefit of section 6(1) thereof and, if necessary, that section 6(2) thereof did not apply to their circumstances;", "(ii) if necessary, to seek a court declaration challenging the constitutional validity of section 6(2) thereof if it had the consequence of excluding them from the benefit of section 6(1);", "(c) to bring an action against Mr Thornton, the previous owner of the land (see paragraph 9 above), for breach of covenant of title or for unjust enrichment.", "45. The pleas listed at (b) and (c) above were raised by the Government when the Commission was examining the admissibility of the application (see pages 52-53 of its report), so that no question of estoppel arises in their regard.", "The same cannot, however, be said concerning the pleas listed at (a). At the Commission ’ s hearing of 3 May 1989 on admissibility and merits, the Government did refer briefly to sections 55 and 29 of the 1963 Act, but these references were made in the context of Article 25 (art. 25) of the Convention and the question whether the applicants could claim to be \"victims\" of a violation; the Government are therefore estopped from relying on these provisions in support of a plea of non-exhaustion of domestic remedies (see the Isgrò judgment of 19 February 1991, Series A no. 194-A, p. 11, para. 29). At the same hearing the Government did make a passing reference, in the context of a plea of non-exhaustion of domestic remedies, to the applicants ’ failure to challenge or appeal against the 1982 decision of Dublin County Council. However, these points were not then dealt with in argument, with the result that the Government must be regarded as estopped from relying on them now.", "It is true that, after the Commission ’ s admissibility decision and in support of a request made under Article 29 (art. 29), the Government did expand on all the matters listed at (a). However, there was, in fact, nothing to prevent them from doing this earlier (see the Artico judgment of 13 May 1980, Series A no. 37, pp. 13-14, para. 27).", "46. In the result, there fall to be considered on their merits the Government ’ s submissions that the applicants should have sought a declaration or declarations concerning the 1982 Act and should have sued Mr Thornton.", "47. As regards the first of these alleged remedies, the Government contended that section 6(1) of the 1982 Act applied to the applicants ’ outline permission and rendered it valid, and accordingly that, when Dublin County Council refused their application for approval on 10 December 1982, they ought to have applied to the High Court for a declaration that they were entitled to the benefit of the section or, if they were not, that section 6(2) was invalid having regard to the Constitution. This contention of the Government is inconsistent with the attitude they adopted to the interpretation of section 6 in the second Pine Valley case. In their statement of claim in that case the applicants pleaded that they could not \"by operation of law avail of the retrospective validity afforded by\" section 6(1) of the 1982 Act (see paragraph 25 above). In their defence the Government did not deny this plea (ibid.). Accordingly, the attitude of the Government, in their pleadings, was that they accepted that the applicants ’ outline permission was not validated by section 6(1). And it is clear that the Government did not argue to the contrary during the hearing of the case but maintained the same attitude. Mr Justice Lardner stated in his judgment that section 6(2) of the 1982 Act \"has been accepted by counsel for both sides ... as excluding the appellants from the benefit of section 6(1)\" (ibid.).", "The Government are now adopting a totally different attitude. Yet they cannot validly put forward before the Court arguments which they never made in the domestic court and which are inconsistent with the stance they adopted there.", "Furthermore, the Court finds persuasive the applicants ’ contention that even if they could have succeeded in obtaining the appropriate declaration, it would not have been possible to obtain it in time to enable them to develop the lands pursuant to the outline permission, since this was due to expire on 10 March 1984 (see paragraph 16 above). The earliest an action for a declaration could have been commenced was December 1982, which left only fifteen months approximately in which not merely to complete the proceedings (which could have included an appeal to the Supreme Court) but also to obtain detailed planning approval and commence building. No extension of the period of validity of the outline permission could have been obtained unless substantial works had been carried out before it expired, and such works could not have been commenced until detailed planning approval had been obtained (see paragraphs 16 and 29 above). In these circumstances, the actions for a declaration suggested by the Government cannot be regarded as \"effective\" remedies which Article 26 (art. 26) obliged the applicants to exhaust: a remedy which will not bear fruit in sufficient time does not fall within this category (see, mutatis mutandis, the Ciulla judgment of 22 February 1989, Series A no. 148, p. 15, para. 32).", "For these reasons, this limb of the Government ’ s objection must be dismissed.", "48. The same applies to the action or actions which the Government submitted should have been instituted against Mr Thornton (item (c) of paragraph 44 above). Even assuming that these actions were available to the applicants, the Government have not challenged their contention that the measure of damages obtainable would not have been such as to permit them to recoup the entirety of their losses. Above all, Article 26 (art. 26) requires the exhaustion only of remedies that relate to the breaches alleged (see, inter alia, the de Jong, Baljet and van den Brink judgment of 22 May 1984, Series A no. 77, p. 19, para. 39): to sue a private individual cannot be regarded as such a remedy in respect of a positive act on the part of the State.", "D. Conclusion", "49. To sum up, the Court is able to take cognisance of the merits of the case, in its entirety and as regards all three applicants.", "II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 (P1-1)", "50. The applicants submitted that, as a result of the Supreme Court ’ s decision holding the outline planning permission to be invalid, coupled with the respondent State ’ s alleged failure to validate that permission retrospectively or its failure to provide compensation for the reduction in value of their property, they had been victims of a breach of Article 1 of Protocol No. 1 (P1-1) to the Convention, which provides:", "\"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.\"", "This submission, which was contested by the Government, was not accepted by the Commission.", "A. Whether there was an interference with a right of the applicants", "51. Bearing in mind that in the first Pine Valley case (see paragraph 12 above) the Supreme Court held that the outline planning permission granted to Mr Thornton was a nullity ab initio, a first question that arises in this case is whether the applicants ever enjoyed a right to develop the land in question which could have been the subject of an interference.", "Like the Commission, the Court considers that this question must be answered in the affirmative. When Pine Valley purchased the site, it did so in reliance on the permission which had been duly recorded in a public register kept for the purpose and which it was perfectly entitled to assume was valid (see paragraphs 9 and 31 above). That permission amounted to a favourable decision as to the principle of the proposed development, which could not be reopened by the planning authority (see paragraph 29 above). In these circumstances it would be unduly formalistic to hold that the Supreme Court ’ s decision did not constitute an interference. Until it was rendered, the applicants had at least a legitimate expectation of being able to carry out their proposed development and this has to be regarded, for the purposes of Article 1 of Protocol No. 1 (P1-1), as a component part of the property in question (see, mutatis mutandis, the Fredin judgment of 18 February 1991, Series A no. 192, p. 14, para. 40).", "52. The Government contended that there had been no interference with any right of the applicants under Article 1 of Protocol No. 1 (P1-1) since the outline planning permission had been retrospectively validated by section 6(1) of the 1982 Act (see paragraph 15 above).", "The Court recalls that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see, amongst various authorities, the Eriksson judgment of 22 June 1989, Series A no. 156, p. 25, para. 62). In the present case, a number of the members of the Supreme Court expressed the opinion, in the second Pine Valley case, that the applicants were excluded from the benefit of section 6(1) (see paragraph 25 above); furthermore, a different view was not taken by the other national authorities involved, namely Dublin County Council and the Planning Board (see paragraphs 18-19 above).", "The Government maintained, however, that the question of the interpretation of section 6 of the 1982 Act was not before the Supreme Court for decision and that the observations made by its members on this subject were no more than obiter dicta.", "The Court must, whatever the weight of those observations in domestic law, be guided by such pronouncements of the national authorities as exist on the subject, especially those emanating from members of the highest court of the land. Bearing also in mind that in the second Pine Valley case the defendants (one of whom was the State) accepted, at least tacitly, that the applicants did not have the benefit of section 6(1) of the 1982 Act (see paragraph 47 above), it cannot now be claimed that their outline planning permission was retrospectively validated by that provision. The Court must therefore proceed on the basis that it was not.", "53. The applicants accepted the Commission ’ s view that there had been no interference with the rights of Pine Valley since it had sold the land in question before the Supreme Court ’ s decision in the first Pine Valley case (see paragraphs 11-12 above), with the result that the losses were borne by the other applicants.", "Whilst the existence of a violation is conceivable even in the absence of detriment (see, inter alia, the Groppera Radio AG and Others judgment of 28 March 1990, Series A no. 173, p. 20, para. 47), the Court concurs in the result. Pine Valley had parted with ownership of the land, without retaining any right thereover that was protected by Article 1 of Protocol No. 1 (P1-1). That provision, whether taken alone (P1-1) or in conjunction with Article 14 (art. 14+P1-1) of the Convention, therefore did not apply to this applicant.", "54. The Court thus concludes that there was an interference with the right of Healy Holdings and Mr Healy to the peaceful enjoyment of their possessions.", "This conclusion is not affected by three other points on which the Government relied.", "(a) Firstly, the possibility open to the applicants of seeking some other planning permission does not alter the fact that they lost the benefit of the one they already had.", "(b) Secondly, the fact that the Minister for Local Government acted bona fide in granting permission to Mr Thornton has no bearing whatsoever on the effects of the Supreme Court ’ s decision in the first Pine Valley case.", "(c) Thirdly, the applicants ’ failure to seek compensation under section 55 of the 1963 Act (see paragraph 32 above) cannot be regarded as excluding the existence of an interference, since this remedy might, at most, have provided redress for the consequences after the event. Besides, the Government did not cite any case-law contradicting the applicants ’ view that this section was not applicable to a refusal of planning approval, neither have they clearly established that the quantum of compensation payable would have covered the entirety of the applicants ’ losses.", "B. The Article 1 (P1-1) rule applicable to the case", "55. The applicants contended that the interference in question, by annulling the outline planning permission, constituted a \"deprivation\" of possessions, within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 (P1-1). The Commission, on the other hand, saw it as a \"control of the use of property\", within the meaning of the second paragraph of that provision.", "56. There was no formal expropriation of the property in question, neither, in the Court ’ s view, can it be said that there was a de facto deprivation. The impugned measure was basically designed to ensure that the land was used in conformity with the relevant planning laws and title remained vested in Healy Holdings, whose powers to take decisions concerning the property were unaffected. Again, the land was not left without any meaningful alternative use, for it could have been farmed or leased. Finally, although the value of the site was substantially reduced, it was not rendered worthless, as is evidenced by the fact that it was subsequently sold in the open market (see paragraph 13 above).", "Accordingly, as for example in the Fredin case (see the above-mentioned judgment, Series A no. 192, pp. 14-15, paras. 42-47), the interference must be considered as a control of the use of property falling within the scope of the second paragraph of Article 1 (P1-1).", "C. Compliance with the conditions laid down in the second paragraph of Article 1 (P1-1)", "1. Lawfulness and purpose of the interference", "57. The applicants did not dispute that the interference was in conformity with planning legislation and, like that legislation, was designed to protect the environment (see paragraph 9 above). This, in the Court ’ s view, is clearly a legitimate aim \"in accordance with the general interest\" for the purposes of the second paragraph of Article 1 (P1-1) (see the same judgment, p. 16, para. 48).", "2. Proportionality of the interference", "58. The applicants maintained that, in the absence of compensation or retrospective validation of their outline planning permission, the interference complained of could not be described as proportionate to the aim pursued.", "59. Although the annulment by the Supreme Court of the planning permission was pronounced in proceedings to which the applicants were party, its consequences were not confined to them, as is evidenced by the fact that legislation - the 1982 Act - was subsequently passed with the intention of validating retrospectively the permissions affected. Indeed, the applicants would have found themselves in the same position if a similar decision had been handed down in a case in which they had not been involved.", "The interference was designed and served to ensure that the relevant planning legislation was correctly applied by the Minister for Local Government not simply in the applicants ’ case but across the board. The decision of the Supreme Court, the result of which was to prevent building in an area zoned for the further development of agriculture so as to preserve a green belt (see paragraph 9 above), must be regarded as a proper way - if not the only way - of achieving that aim.", "The applicants were engaged on a commercial venture which, by its very nature, involved an element of risk (see, mutatis mutandis, the Håkansson and Sturesson judgment of 21 February 1990, Series A no. 171-A, pp. 17-18, paras. 53 and 55, and the above-mentioned Fredin judgment, Series A no. 192, pp. 17-18, para. 54) and they were aware not only of the zoning plan but also of the opposition of the local authority, Dublin County Council, to any departure from it (see paragraphs 10 and 12 above). This being so, the Court does not consider that the annulment of the permission without any remedial action being taken in their favour can be regarded as a disproportionate measure.", "D. Conclusion", "60. The Court thus concludes that there has been no violation of Article 1 of Protocol No. 1 (P1-1) as regards any of the applicants.", "III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL NO. 1 (art. 14+P1-1)", "61. The applicants alleged that since the remedial action taken by the legislature in the shape of section 6 of the 1982 Act benefited all the holders of permissions in the relevant category other than themselves, they had been victims of discrimination contrary to Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1). The former provision reads as follows:", "\"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\"", "This allegation was contested by the Government, but accepted by the Commission as regards Healy Holdings and Mr Healy.", "62. The Court recalls that, for the reasons set out in paragraph 53 above, Article 14 (art. 14) is not applicable as far as Pine Valley is concerned.", "63. The Government contended, in this context also, that the applicants ’ outline planning permission had been validated by the 1982 Act and that, accordingly, no question of discrimination arose. The Court has already dealt with this contention in paragraph 52 above and rejects it on the grounds there stated.", "64. The Government did not rely on the observations made by certain members of the Supreme Court in this connection (see paragraph 26 above) nor did they advance any other justification for the difference of treatment between the applicants and the other holders of permissions in the same category as theirs.", "The Court therefore finds that there has been a violation of Article 14 of the Convention, taken together with Article 1 of Protocol No. 1 (art. 14+P1-1), as regards Healy Holdings and Mr Healy.", "IV. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION", "65. The applicants further submitted that they had had no effective remedy whereby they could raise before a national authority the substance of their Convention complaints. They recalled that their claim for damages had been dismissed in the second Pine Valley case and maintained that there was no remedy for the discrimination inherent in section 6 of the 1982 Act. In their view, there had accordingly been a violation of Article 13 (art. 13) of the Convention, which provides:", "\"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"", "66. The Court agrees with the Government and the Commission that this submission has to be rejected. The applicants not only could but also did raise the substance of their Convention complaints (including that relating to the discriminatory effect of the 1982 Act) before the Irish courts in the second Pine Valley case (see paragraphs 20-27 above). And it has to be recalled that the effectiveness of a remedy, for the purposes of Article 13 (art. 13), does not depend on the certainty of a favourable outcome (see, inter alia, the Soering judgment of 7 July 1989, Series A no. 161, p. 48, para. 122).", "V. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION", "67. Under Article 50 (art. 50) of the Convention,", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "The question of applying Article 50 (art. 50) does not arise as regards Pine Valley, no violation having been found in respect of this company. In fact, this provision was relied on only by Healy Holdings and Mr Healy, who claimed compensation for pecuniary and non-pecuniary damage, together with reimbursement of certain costs and expenses they had incurred in Ireland.", "At the hearing on 21 May 1991, the Delegate of the Commission reserved his position on these claims. Counsel for the Government did likewise, although he also submitted that certain of the claims had been presented to the Court out of time.", "68. In these circumstances the Court considers that the question of the application of Article 50 (art. 50) is not ready for decision and must be reserved." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicants are involved in a long-standing dispute with the State concerning the ownership of land in Omorphokklisia in Galatsi forming part of a wider area called the “ Veikou Estate” over which the State claims ownership. In 1923, 1928, 1931, 1932 and 1941 the State expropriated large parts of the Veikou Estate for various purposes in the public interest.", "9. In an opinion (no. 23/1987) which was approved by the Minister of Finance in 1987 and confirmed by the same minister in 1992, the Public Estates Consultative Board said that the Veikou Estate belonged to the State, since Mr Veïkos’s heirs had failed to prove that they had acquired property rights under title deeds or from adverse possession of the estate. On the basis of that opinion, the State Lands Authority registered the land possessed by Mr Veïkos’s heirs and subsequently all the plots which had been transferred to third parties by the heirs as public estates. Various sets of proceedings brought against the State by Mr Veïkos’s heirs and third parties are still pending in the domestic courts.", "10. In 1934 the Minister of Agriculture decided to extend reafforestation in Attica to a region which included the disputed land. According to that decision, the area had “consisted, before the destruction and deterioration of the forest vegetation ..., of pine-tree forest which [had] progressively deteriorated and was starting to disappear ...” (decision no. 108424/1934).", "11. However, in a document of the Athens Forestry Commission of 16 November 1968 on city planning, it was stated that half the area concerned was agricultural and the other half scrubland covered by bushes and just five pine trees. The Forestry Commission expressed the opinion that the area had never been forest land and could not be reafforested, since the decision of the Ministry of Agriculture of 1934 excluded from the scope of reafforestation barren land or parcels owned by individuals. The Forestry Commission concluded that the city development plan could be extended to the area concerned. Two previous documents of the Ministry of Agriculture, dated 3 December 1948 and 11 September 1949, and an expert report concerning the Veikou Estate had arrived at the same conclusion.", "12. On 10 October 1994 the prefect of Athens decided that an area within the Veikou Estate, including the disputed plot of land, should be reafforested. It was expressly stated in the prefect’s decision that the aim was “... to recreate the forest greenery that [had] been destroyed or [had] deteriorated by illegal quarrying and other illegal actions, such as land clearing and building, over an area covering 935,483,000 sq. m”.", "13. On 23 December 1994 the applicants challenged the prefect’s decision of 10 October 1994 in the Supreme Administrative Court. They claimed that they were the owners of properties that had been created by the parcelling of the Veikou Estate and were located inside the area set aside for reafforestation. In particular, they contended that the prefect’s decision sought to deprive them of any rights of possession or ownership in the contested plot. In their additional observations of 26 July 1996, they claimed that the underlying reason for the decision was an attempt by the State to create a dispute over the applicants’ rights of possession or ownership, despite the fact that there was no basis in law for the decision, since the area had never been a forest in the past.", "14. On 20 January 1995 the applicants invited the State to purchase the plot in question from them. The authorities did not reply.", "15. On 6 April 1998 the Supreme Administrative Court declared the applicants’ appeal inadmissible on the ground that the prefect’s decision was not an operative one, since it simply confirmed the decision that had been issued by the Minister of Agriculture in 1934. In particular, the Supreme Administrative Court held that the 1934 decision remained in force because it had not been reversed by any other act of equivalent importance. Subsequent acts of the authorities, such as the interpretation of some aerial photographs, could not be considered as a fresh assessment of the situation capable of rendering the prefect’s decision operative.", "16. On 22 October 1999 the Athens Forestry Commission, following the procedure prescribed by Law no. 998/1979, classified 189,475 sq. m of land located within the area concerned by the prefect’s decision of 10 October 1994. It concluded that only 20,650 sq. m of it was forest land and should be reafforested. The Forest Disputes Resolution Committee upheld that decision and an appeal is now pending before the Appeal Board.", "17. In various judgments over the past few years the Greek courts have been called upon to decide the property status of parts of the Veikou Estate (judgments no. 8864/1995 of the Athens Court of First Instance, no. 8314/1996 of the Athens Court of Appeal, and no. 9632/2000 of the Athens Court of Appeal). The courts have recognised that a number of plots which were situated in the greater Veikou Estate did not constitute forest land but were private properties which were included in the city development plan. Other judicial decisions (judgments no. 13789/1977 of the Athens Court of First Instance, no. 7350/1978 of the Athens Court of Appeal, no. 696/1980 of the Court of Cassation, no. 1865/1992 of the Athens Court of First Instance, and no. 1783/1997 of the Athens Court of First Instance) concluded that the greater area, which comprised the properties claimed by the applicants, had never been forest land in the past." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Constitution", "18. The relevant provisions of the Constitution read as follows:", "Article 24 § 1", "“The State is under a duty to protect the natural and cultural environment. It shall adopt special preventive or repressive measures for the conservation of the environment. Matters pertaining to the protection of forests and forest areas in general shall be regulated by law. Any change in the use of public forests and public forest areas shall be prohibited, except where agricultural development or any other use is beneficial to the national economy or dictated by the national interest.”", "Article 117 § 3", "“Public or private forests or forest areas which have been or are destroyed by fire or otherwise deforested, shall not be divested for that reason of their previous status but shall be designated as reafforestation areas and not used for any other purpose.”", "19. The Government submitted that, for the purposes of Article 117 § 3, which under the Supreme Administrative Court ’s established case-law is directly applicable, the statutory protection of forests continues without any limitation in time and notwithstanding illegal destruction or deforestation. Moreover, the designation of an area as a reafforestation area and the prohibition of any use detrimental to reafforestation are not left to the discretion of the authorities but are mandatory.", "B. The Protection of Forests and Forest Lands Act (Law no. 998/1979)", "20. The relevant sections of Law no. 998/1979 read as follows:", "Section 10(3)", "“A Forest Disputes Resolution Committee shall be established at the seat of each prefecture with jurisdiction to settle disputes over the classification of all or part of an area as forest land and over the limits of such land.”", "Section 14", "“(1) If no forest register has been compiled, the classification of all or part of an area as forest land and the determination of the limits thereof ... shall be carried out, at the request of any person having a lawful interest or ex officio, by the competent forestry commission.", "(2) ... The classification shall be notified to the person, legal entity or public service having submitted the request ...", "(3) The prefect or any other person with a lawful interest may lodge an objection to the aforementioned classification within two months from the date of notification ... with the Committee mentioned in section 10(3) ... The Committee and the Appeal Board ... shall decide the objection by a reasoned decision within three months from the date it is filed ...”", "Section 38(1)", "“Forests and forest lands which are destroyed or deforested by fire or illegal logging shall be designated reafforestation areas, regardless of any special category they may come into or their location ...”", "Section 41", "“(1) The decision to designate land as a reafforestation area shall be taken by the competent prefect. It shall clearly indicate the limits of the area and be accompanied by a plan ...", "(3) ... the decision of the prefect mentioned in subsection (1) shall be taken following a recommendation by the competent forestry inspector.”", "21. The Government stressed that the aforementioned provisions establish a special judicial procedure for classifying an area as forest land and aim at settling disputes in a way that binds both the authorities and the individual.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1", "22. The applicants alleged a violation of Article 1 of Protocol No. 1, which reads as follows:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "23. Firstly, as they had already stressed in their observations at the admissibility stage, the applicants reiterated that the fact that the Government had not expressed any views on the substance of their complaint at that stage amounted to an indirect but clear recognition that there had been a violation.", "24. Secondly, the applicants submitted that the taking of what they considered their property by the national and regional authorities amounted to a de facto expropriation without the payment of any compensation. In effect, by using various pretexts such as the existence of a forest in the remote past, the State had tried to “snatch” their property. Even if it was considered that the State had not deprived the applicants of their property, but had only restricted its use, it had not struck a fair balance between the right guaranteed by Article 1 of Protocol No. 1 and the limitation: in the present case no public interest could justify such a limitation being placed on the property concerned and the lack of any compensation which might have restored a fair balance. In that connection, the applicants stressed that under Law no. 998/1979, the State could purchase properties that were included in a reafforestation scheme. The applicants had submitted a request to have their properties purchased but the competent authorities had never replied, thereby confirming the State’s refusal to pay the applicants any compensation.", "25. The applicants produced a large number of judicial decisions (judgments no. 8864/1995 of the Athens Court of First Instance, no. 8314/1996 of the Athens Court of Appeal, and no. 9632/2000 of the Athens Court of Appeal) in which the Greek courts had decided the property status of the Veikou Estate. It transpired from those decisions that the courts had recognised that a number of parcels situated in the greater Veikou Estate did not constitute forest land but were private properties which were included in the city development plan. Other judicial decisions (judgments no. 13789/1977 of the Athens Court of First Instance, no. 7350/1978 of the Athens Court of Appeal, no. 696/1980 of the Court of Cassation, no. 1865/1992 of the Athens Court of First Instance, and no. 1783/1997 of the Athens Court of First Instance) had concluded that the greater area comprised by the applicants’ properties had never been a forest in the past.", "26. The applicants stressed that the administrative authorities which decided on reafforestation had referred to the area as a public domain and totally ignored the judicial decisions which were favourable to the applicants. The applicants further claimed that the disputed area could not constitute a forest because of the nature and composition of the topsoil and subsoil. Such a conclusion could be drawn from a series of technical reports and expert valuations that had been carried out in 1993, 1995, 1996, 1997 and 2000 by foresters and even university professors and experts in geology and forestry. Furthermore, certain administrative documents or decisions (a Ministry of Agriculture forest map, a presidential decree of 28 August 1980 laying down building regulations for the area, a presidential decree of 11 November 1991 approving the development plan for the Galatsi area and an opinion of the Athens Forestry Commission of 14 November 1968) lent support to the view that the disputed land had always been considered as grazing or arable land. Moreover, in 1957 the authorities had delimited the forest land in the area without including in it the disputed plots.", "27. In conclusion, the applicants maintained that no public interest could justify such a drastic limitation of their property rights, taking into account that any reafforestation of the land was impossible because of the type and quality of the soil.", "28. The principal thrust of the Government’s argument was that no “possession” of the applicants, within the meaning of Article 1 of Protocol No. 1, had been interfered with. The Government considered that the State was the owner of the greater Veikou Estate and that only the Greek courts were competent to resolve the ownership status of the disputed plots.", "29. The mere allegation by the applicants that they owned those plots, which were not precisely delineated in their application, did not prove that they did. In an attempt to prove their ownership rights over the disputed land, the applicants had relied on judicial decisions and administrative documents which concerned other properties (both as regards ownership of the land and its classification as forest land) and tried to use the European Court of Human Rights as a civil court which could resolve the issue of ownership of their plots or determine whether the disputed land had formed a forest in the past. However, no decision had been taken by the domestic courts as regards ownership of the applicants’ plots. The Supreme Administrative Court had only examined whether the conditions for designating the land as a reafforestation area were met, in particular whether the prefect’s decision was lawful and sufficiently justified under Article 117 § 3 of the Constitution and the provisions of Law no. 998/1979. The determination of the ownership of the whole Veikou Estate was still pending before the domestic courts, as several actions had been brought (under Article 70 of the Code of Civil Procedure) claiming ownership of certain parcels. However, the applicants were not among the claimants.", "30. The Government added that neither the judgment of the Supreme Administrative Court nor the prefect’s decision to reafforest had violated the applicants’ rights under Article 1 of Protocol No. 1. In deciding the admissibility of the complaint under Article 6 of the Convention, the Court had held that the Supreme Administrative Court ’s finding that the prefect’s decision was not an operative act was not arbitrary. Furthermore, under Article 117 of the Constitution, the protection of forests was guaranteed without any limitation in time and notwithstanding any illegal destruction or deforestation. The decision to reafforest was not left to the discretion of the authorities but had to be taken when necessary and when the conditions laid down in Article 117 were met. The Supreme Administrative Court had found, on the basis of a large amount of evidence, that it was probable that the disputed area had been a forest in the past. It followed that the prefect’s decision was not arbitrary but dictated by reasons of public interest, namely the protection of the environment.", "31. The Government contested the relevance of the documents which the applicants had produced in support of their case. They referred to other documents issued by the Athens Forestry Commission and to decision no. 1/2001 of the Forest Disputes Appeal Board, in which different conclusions had been drawn from those indicated in the applicants’ documents.", "32. Finally, the Government maintained that it was impossible for the State to purchase the disputed plots under the provisions of Law no. 998/1979, since it had always considered them to be its own property.", "33. The Court reiterates that Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, pp. 29-30, § 37). The first, which is set out in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, contained in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule.", "34. As regards the question whether there is a “possession” within the meaning of Article 1 of Protocol No. 1, it is not for the Court to settle the issue of ownership of the disputed land. The Government have underlined that the applicants failed to have ownership determined by the civil courts. The Court notes that the Government raised the objection that domestic remedies had not been exhausted on that point at the admissibility stage. The Court dismissed it on the ground that for the purposes of admissibility the only court with jurisdiction to quash the prefect’s decision to reafforest was the Supreme Administrative Court. As regards the merits, the Court notes the following: in their application to the Supreme Administrative Court, the applicants indicated the deeds on which they based their claim to ownership of the disputed land. Although it was not called upon to determine the issue of ownership, and indeed could not do so, the Supreme Administrative Court accepted that the applicants, who “were considered owners”, had locus standi.", "35. For the purposes of the proceedings before the Court, the applicants may therefore be regarded as the owners of the land in issue or at least as having an interest that would normally be protected by Article 1 of Protocol No. 1.", "36. The Court takes note of the Government’s arguments that the protection of forests is guaranteed without limitation in time and notwithstanding illegal destruction or deforestation. Moreover, the designation of an area as an area to be reafforested and the prohibition of any use that would prevent reafforestation is not left to the discretion of the authorities but is mandatory and the Supreme Administrative Court has scrupulously enforced these principles in order to safeguard the country’s forestry resources. The Court also notes that the applicants dispute that the prefect’s decision to reafforest in the present case was taken in the public interest, because the geology of the whole area was not suitable for forestation. The Court notes that there is a large amount of conflicting evidence as to the nature of the land in issue. As both parties have pointed out, there were judicial and administrative decisions, expert valuations and other documents that could be used to support their cases. However, it is not for the Court to decide such a technical matter.", "37. The Court notes that the prefect’s decision of 10 October 1994 was based on decision no. 108424/1934 of the Minister of Agriculture. In the Court’s opinion, the authorities were at fault for ordering such a serious measure that affected the position of the applicants and a number of other persons who claimed property rights over the land without a fresh reassessment of the situation as depicted in decision no. 108424/1934. However, the Supreme Administrative Court rejected the applicants’ application on the sole ground that the prefect’s decision was not an operative one, since it simply confirmed the decision that had been issued by the Minister of Agriculture in 1934. Such a manner of proceeding in such a complex situation in which any administrative decision could weigh heavily on the property rights of a large number of people cannot be considered consistent with the right enshrined in Article 1 of Protocol No. 1 and does not provide adequate protection to people such as the applicants who bona fide possess or own property, in particular, when it is borne in mind that there is no possibility of obtaining compensation under Greek law.", "38. The Court considers that the situation of which the applicants complain comes within the first sentence of the first paragraph of Article 1 of Protocol No. 1 and that there was no reasonable balance struck between the public interest and the requirements of the protection of the applicants’ rights.", "39. Accordingly, there has been a violation of Article 1 of Protocol No. 1.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "40. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "41. For pecuniary damage the applicants claimed 504,482,000 drachmas (GRD), or 1,480,505 euros (EUR). This amount is based on an expert valuation carried out by a civil engineer appointed by the applicants to assess the value of all the disputed plots. The expert based the assessment on the market value of the neighbouring properties and on a judgment of the Athens Court of First instance which determined the amount payable per square metre in compensation for property expropriated for the purposes of holding the Olympic Games in 2004.", "42. As regards non-pecuniary damage the applicants said that a judgment of the Court holding that there has been a violation of Article 1 of Protocol No. 1 would constitute sufficient just satisfaction and they claimed a token compensation of one euro. They affirmed that the interference of the State with their properties had caused them distress and anxiety and that the predicament in which they had found themselves was quite serious, as most of them had purchased the properties at a very high cost at the time with limited resources.", "43. As regards costs and expenses for the proceedings before the Supreme Administrative Court, the applicants claimed GRD 200,000 per expropriated plot, that is a total of GRD 4,800,000, or EUR 14,087. As to the proceedings before the Court the applicants underlined the complexity of the case and the fact that they had had to retain two lawyers, who had spent 980 hours working on the file at an hourly rate of GRD 50,000 (total: GRD 49,000,000, or EUR 143,800). To that sum should be added an amount of GRD 1,000,000 for various secretarial expenses and of GRD 1,000,000 for the fees of the civil engineer who had assessed the value of applicants’ properties.", "44. The Government submitted that the applicants had no right to compensation: on the one hand, they had not been recognised as owners of the disputed plots by the civil courts and, on the other, the decision to reafforest did not prohibit all uses of the land but only uses that would hinder reafforestation and were inconsistent with the designation of the plots as forest land. The Government reiterated that they contested the exact location and surface area of the plots.", "45. The Government submitted that the applicants’ claims for costs were exaggerated and arbitrary. In particular, the number of hours worked and the hourly rate indicated by their lawyers were excessive.", "46. In the circumstances of the case, the Court considers that the question of the application of Article 41 is not ready for decision and must be reserved, due regard being had to the possibility of an agreement between the respondent State and the applicant." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicants, N.A., N.A., A.A., J.Ö. and H.H., were born in 1926, 1956, 1954, 1949 and 1950 respectively and live in Antalya.", "10. After surveys had been conducted by the Land Office between 1956 and 1958, a plot of land on the coast in the locality of Karasaz ( village of Çikcilli, district of Alanya, parcel no. 84 ) was entered in the land register in the name of R.A.", "11. Following R.A.'s death, the applicants inherited the land and paid the appropriate taxes and duties on it.", "12. On 25 June 1986 the applicants obtained a tourist investment certificate from the Ministry of Culture and Tourism with a view to building a hotel on the land.", "13. On 9 July 1986 the State Planning Organisation awarded the applicants an investment incentive certificate, again for the purpose of building a hotel. Paragraph X of the certificate stated that the applicants had to obtain a tourism licence once the investment had been made.", "A. Proceedings against the applicants in the Alanya District Court for the cancellation of the entry in the land register", "14. On 28 October 1986, after the applicants had started building the hotel, the Treasury instituted proceedings in the Alanya District Court, seeking an order for the cancellation of the entry of the property in the land register and for the demolition of the hotel.", "15. An expert report of 31 October 1986 stated that parcel no. 84 was part of the coastline and could not be the subject of an acquisition.", "16. On 31 October 1986 the District Court made an interim order for the suspension of building work on the hotel.", "17. An expert report of 3 March 1987 pointed out that parcel no. 84 was part of the coastline and, as such, could not be owned by a private individual.", "18. In a judgment of 16 June 1987 the District Court ordered the cancellation of the entry in the land register and the demolition of the partially built hotel. It made the following observations:", "“[ Having regard to] the expert report [and] ruling on the merits [of the case], ... having regard to the available evidence and, in particular, the photographs and all the other items in the file, the Court considers that the property in issue is part of the seashore [ Deniz kıyısı ]. Although coastlines remain outside the boundary delimited and fixed in decisions by certain commissions, they cannot constitute property that is subject to private ownership ... the registration of the property in the claimants'name does not confer any rights on them.”", "19. On 9 December 1987 the District Court dismissed an appeal by the applicants against the interim order of 31 October 1986.", "20. In a judgment of 12 February 1988 the Court of Cassation quashed the judgment of 16 June 1987 and remitted the case to the first-instance court.", "21. In a judgment of 17 February 1989, disregarding the Court of Cassation's judgment, the District Court reaffirmed its initial ruling. It held:", "“... the disputed site is the responsibility and property of the State. In that respect there is no discrepancy with [the judgment] delivered by the plenary Court of Cassation. Even the State, when placing restrictions on the enjoyment of possessions in accordance with property law ..., cannot accept the existence of private property at such a site ... Although the property in issue in the present case was formerly situated within the coastal boundary, it was placed outside that boundary by [a decision of] the commission formed at a later date. The site was quite clearly located on a sandy beach, as, indeed, is apparent from previous judicial decisions that have become final, and from expert reports and photographs ...”", "22. In a judgment of 18 October 1989 the plenary Court of Cassation upheld the judgment given by the lower court, finding it to have interpreted and applied the law correctly.", "23. In a judgment given on an unspecified date the District Court confirmed its initial judgment.", "24. In a judgment of 1 March 1990 the Court of Cassation upheld the judgment given at first instance.", "25. In a judgment of 27 September 1990 it dismissed an application for rectification of the judgment.", "B. Proceedings for damages in the Alanya District Court", "26. On 27 September 1991 the applicants brought an action for damages in the Alanya District Court on account of their loss of ownership and the demolition of the partially built hotel.", "27. In a judgment of 1 April 1994 the District Court dismissed the applicants'action on the ground that the State was not liable for the damage resulting from the cancellation of the registration of the property in issue. In its reasoning it stated that the applicants had asserted, on the basis of the entries in the land register, that they had made investments in relation to the land in question and that, as a result of the proceedings brought by the Treasury for the cancellation of the registration, they had sustained a loss. The District Court explained its decision by pointing out that the applicants and their heirs would have been aware that the site was on sandy ground, and that it was impossible for them to maintain that the State had deceived them and for the principle of strict liability to be applied in their case. It concluded that no loss had resulted from the contents of the land register, that the entry had been unlawful from the outset and that the applicants were accordingly not entitled to take proceedings against the State to seek compensation for the loss sustained.", "28. In a judgment of 28 November 1995 the Court of Cassation upheld the judgment given at first instance.", "29. In a judgment of 9 December 1996 the Court of Cassation dismissed an application for rectification of the judgment." ]

[ "II. RELEVANT DOMESTIC LAW", "30. Article 43 of the Constitution provides:", "“The coasts are the property of the State and fall within its jurisdiction.", "The public interest shall prevail in the use of seashores, lake shores and riverbanks and of the coastal strips situated by seas and lakes.", "The law shall determine the width of coastal strips according to their use, together with the possibilities and conditions for such use by individuals.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1", "31. The applicants complained that they had not received compensation for the loss they had sustained as a result of the demolition of their partially built hotel and the cancellation of the entry of their property in the land register. They relied on Article 1 of Protocol No. 1, which provides:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. The parties'submissions", "1. The applicants", "32. The applicants submitted a copy of the land register produced by the relevant government department on 25 January 1958, indicating that the land in question had indeed been registered in their ascendant's name. They argued that the register could not be held to be unlawful since the appropriate authorities had not contested the entry in question within the statutory period. In that connection, they pointed out that they had continued to pay all the relevant taxes and duties on the property although the government had had the opportunity to contest its registration in their ascendant's name. They added that they had obtained all the necessary permits and grants at both local and national level to build a hotel complex there, in particular a building permit issued on 17 June 1986 by Alanya District Council. Although they had brought an action in the relevant courts, they complained that they had not received any compensation for the loss they had sustained on account of the invalidation of their title to the property and the destruction of the work already carried out. They had been deprived of their possession and the building site for the hotel complex had been demolished at their own expense, yet they had not obtained fair compensation for the loss sustained.", "2. The Government", "33. The Government explained that the case did not concern the expropriation or confiscation of property by the State. As the applicants had accepted, it involved ascertaining who could be regarded as the owner of a plot of coastal land which had been erroneously registered in the applicants'ascendant's name on 25 January 1958. They could not see any possible justification for the title claimed by the applicants'ascendant, especially as the State could not be held liable for such an error. The applicants had inherited the plot of land, measuring 26,645 sq. m, on 6 July 1984. The judicial proceedings in the instant case had begun after the publication of an article in a local newspaper criticising the building of a hotel on the beach.", "Taking into account the photographs of the land, the expert reports and the relevant provisions of the laws in force, the national courts had found that the property in issue was part of the coastline and that the coastline could not be owned by private individuals. The applicants'title to the property had been forfeited to the authorities and the hotel had been demolished. The Alanya District Court had dismissed the applicants'claim for damages in respect of the demolition of the hotel.", "34. The Government submitted that the domestic authorities were empowered to assess the rules on the use of property in accordance with the public interest and the respondent State's margin of appreciation. The proceedings for the cancellation of the registration could equally well have been brought by any inhabitant of the town of Alanya wishing to complain that it was impossible to use the beach, a public area which was open to all.", "35. With regard to the tourist investment certificate and the investment incentive certificate, issued by the Ministry of Culture and Tourism and the State Planning Organisation respectively, the Government explained that they had been awarded on the basis of the personal declarations submitted by the applicants, which were deemed to be valid in the absence of proof to the contrary. The relevant authorities did not check the accuracy of such declarations on their own initiative.", "B. The Court's assessment", "36. The Court observes that, as it has previously held, Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, pp. 29-30, § 37). The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, must be construed in the light of the general principle laid down in the first rule (see Bruncrona v. Finland, no. 41673/98, §§ 65-69, 16 November 2004, and Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004 -V ).", "37. The Court reiterates that in determining whether there has been a deprivation of possessions within the second “rule”, it is necessary not only to consider whether there has been a formal taking or expropriation of property but to look behind the appearances and investigate the realities of the situation complained of. Since the Convention is intended to guarantee rights that are “practical and effective”, it has to be ascertained whether the situation amounted to a de facto expropriation (see Brumărescu v. Romania [GC], no. 28342/95, § 76, ECHR 1999 ‑ VII; Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, pp. 24-2 8, § § 63 and 69 ‑ 74; and Vasilescu v. Romania, judgment of 22 May 1998, Reports of Judgments and Decisions 1998-III, pp. 1075-76, §§ 39-41 ).", "38. In the present case there was an interference with the applicants'right to the peaceful enjoyment of their possessions, amounting to a “deprivation” of property within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1.", "39. The Court notes, firstly, that it was not disputed that the applicants had acquired the property in question in good faith. Furthermore, until the date on which the registration of the property in the land register was forfeited to the State, they were the owners of the property, having inherited it, and had paid the appropriate taxes and duties on it. They had peaceful enjoyment of their possession and had begun to build a hotel complex on the land as the lawful owners, after obtaining a building permit for that purpose.", "40. The Court further notes that the applicants were deprived of their possession by a judicial decision (see paragraphs 21 and 27 above) which it does not find in any way arbitrary. Having regard to the reasons given by the national courts, it considers that it is beyond dispute that the applicants were deprived of their property “in the public interest”. It observes that it was common ground that the land in issue was on the seashore and formed part of the beach, a public area open to all ( see paragraph 21 above). Indeed, that aspect was emphasised by the Alanya District Court (see paragraph 27 above). The deprivation of property therefore pursued a legitimate aim.", "41. Compensation terms under the domestic legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on the applicants. In this connection, the Court has previously held that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference, and a total lack of compensation can be considered justifiable under Article 1 of Protocol No. 1 only in exceptional circumstances (see Nastou v. Greece (no. 2), no. 16163/02, § 33, 15 July 2005; Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 111, ECHR 2005 -VI; and The Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301-A, p. 35, § 71). In the instant case the applicants did not receive any compensation for the transfer of their property to the Treasury or for the demolition of the hotel, despite having brought an action for damages in the Turkish courts. The Court notes that the Government did not cite any exceptional circumstances to justify the total lack of compensation.", "42. The Court accordingly considers that the failure to award any compensation to the applicants upset, to their detriment, the fair balance that has to be struck between the protection of property and the requirements of the general interest.", "43. There has therefore been a violation of Article 1 of Protocol No. 1.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "44. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "45. The applicants claimed 15, 987,000,000 Turkish liras (TRL) for pecuniary damage, corresponding to the value of the land, and TRL 5, 388,000 to reimburse the property tax they had paid for the period from 1986 to 1990. They relied in that connection on the expert report produced to the Alanya District Court. They submitted that the value of their investment in the property in issue amounted to TRL 1, 484,000,000. They further sought the reimbursement of TRL 4, 048,000,000,000 in respect of the duties they had paid and TRL 2, 260,000,000,000 in respect of interest. As regards the demolition of the hotel, they claimed TRL 4, 048,000,000,000 in respect of social security contributions and TRL 2, 260,000,000,000 for taxes and duties.", "The applicants also claimed 10,000,000 United States dollars (USD) for non-pecuniary damage.", "46. The Government asked the Court to dismiss the applicants'claim for compensation. They submitted, in the alternative, that it was speculative as regards their alleged loss, seeing that the property in question was devoid of any market value since it could not be sold to private individuals.", "47. The applicants sought USD 10,000 for costs and expenses. They submitted a copy of the legal assistance agreement they had signed with their lawyer and left the matter to the Court's discretion.", "48. The Government contended that the agreement bound only the applicants and their lawyer and was not designed to guarantee the repayment of the expenses incurred by them on that account. They asked the Court to apply the Istanbul Bar's scale of fees, which laid down the minimum and maximum rates for cases before the Strasbourg institutions.", "49. In the circumstances of the case, the Court considers that the question of the application of Article 41 is not ready for decision and must be reserved, due regard being had to the possibility of an agreement between the respondent State and the applicants." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1955 and lives in Amsterdam.", "7. In 1967 her parents built a holiday home without planning permission on land situated in Zutendaal ( Belgium ). According to the applicant, however, the house was built in 1962.", "8. Following her mother ’ s death, a deed of partition was drawn up on 6 January 1986 between the applicant (who, inheriting from her mother, became the remainderman of half of the property) and her father. That deed, which specifically mentions the existence of the building, was registered with the Mortgage Registrar at the Ministry of Finance and a registration fee was paid.", "9. The applicant ’ s father died on 21 August 1993 and she became the full and sole owner of the entire property. On inheriting the property, the applicant specifically declared in the notarised deed of distribution that the plot was a holiday home. The deeds were registered with the local authorities and the applicant paid the inheritance tax. From then on, the applicant paid an annual property tax ( précompte immobilier ) and second ‑ residence tax on the holiday home. According to the applicant, it went without saying that her father had also paid the relevant taxes on the house.", "10. The applicant carried out renovations on the house costing 50, 000 euros (EUR) and had the trees on the adjoining land felled.", "11. In 1994 the partly government-controlled Flemish water - supply company carried out works to connect the house to the drainage and water - supply systems. There was no reaction from the local authorities at that time.", "12. On 27 January 1994 a report was drawn up by a police officer who noted that trees had been felled on the property in breach of Article 81, paragraph 3, of the Flemish forestry decree of 13 June 1990.", "13. On 22 February 1994 a report was drawn up by a police officer who noted that the holiday home had been erected in 1967 without planning permission and that it was located in a forested area in which no such permission could be issued. The report also noted that the exterior and roof of the house had been renovated.", "14. On 8 August 1994 the applicant voluntarily reported to the police to make a statement, which was placed on record.", "15. By a decision of 11 October 1994, the municipal council ( collège des bourgmestre et échevins ) asked the planning inspector to issue an opinion on any remedial action to be taken. By a letter of 19 June 1995, the planning inspector applied to the public prosecutor for the site to be restored to its original condition.", "16. Two reports dated 26 March 1996 and 8 January 1997 mention that the police had sought to question the applicant again but had found it difficult to contact her and that she was temporarily unable to travel for health reasons.", "17. At the request of the Tongeren public prosecutor, the applicant was questioned in Amsterdam on 25 March 1997 by a Dutch police officer. A report was drawn up on that occasion.", "18. On 18 May 1998 the public prosecutor asked the local police to confirm whether or not the building in issue still existed.", "19. A report of 16 June 1998 established that the situation had not changed.", "20. The Tongeren public prosecutor issued the applicant with a summons to appear in court on 12 May 1999, firstly, for having maintained a holiday home, erected without planning permission, between 27 January 1994 and 28 April 1999 and, secondly, for having felled approximately fifty pine trees in breach of the above- mentioned Flemish forestry decree. According to the applicant, there were at least four other houses built without permission in the same forested areas, which had neither been the subject of reports establishing that an offence had been committed nor of prosecution.", "21. On 25 June 1999 the Tongeren Criminal Court issued an interlocutory judgment in absentia, since the applicant had not been duly summoned.", "22. On 6 January 2000 she was once again summoned to appear before the Tongeren Criminal Court.", "23. On 26 May 2000 that court acquitted the applicant of the above- mentioned charges. It held in particular that after twenty-seven years the applicant could legitimately assume, as could any reasonably prudent citizen, that maintaining the building in issue would no longer constitute an offence. The court further held that it did not have jurisdiction to deal with the planning inspector ’ s application to have the land restored to its original condition. The prosecutor appealed.", "24. By a judgment of 6 February 2002, the Antwerp Court of Appeal upheld the judgment in so far as the applicant was acquitted of the charge of felling the trees. However, it found her guilty of maintaining a building erected without planning permission, pursuant to Article 146 of the town and country planning decree of 18 May 1999, and changed the impugned period to between 22 August 1993 and 28 April 1999, having regard to the date on which the applicant ’ s father had died.", "25. In her submissions the applicant had alleged a violation of the reasonable - time requirement under Article 6 § 1 of the Convention, considering that the criminal proceedings had been conducted beyond that time - limit and that after such a long period there had been an interference with her rights of defence, in particular since it had been impossible for her to prove that the house had been built before 1962. She had also criticised the failure of the authorities to act, pointing out that her parents had paid the second - residence tax, that a notarised deed mentioning the building had been registered by the authorities, that she had paid inheritance tax on property that included the building, that extensive infrastructure works had been carried out by a partly government-controlled company with no reaction on the part of the local authorities and that for many years no legal action had been taken. She had also alleged a violation of the principle of protection of the legitimate expectations of citizens and complained of discrimination in comparison with neighbouring property owners.", "26. The Court of Appeal found that a deed of partition drawn up in 1986 and signed by the applicant established that the holiday home had been built in 1967 and concurred furthermore with the findings contained in the report drawn up on 22 February 1994. The Court of Appeal considered that the applicant knew or should have known that the building had been erected without planning permission. As a reasonable and prudent citizen, and even taking account of the attitude of the authorities as she had described it, the applicant could not have inferred that the situation was totally legal and that no proceedings would be brought against her. The Court of Appeal found that the applicant had acted most imprudently by proceeding to renovate the premises after the death of her father. It also found that the fact that four other dwellings had also been erected in the same forested area without planning permission and without their owners being prosecuted did not amount to discrimination.", "27. With regard, more particularly, to compliance with the reasonable - time requirement, the Court of Appeal found that the length of the criminal proceedings had been unreasonable but that this did not alter the fact that the offence had been established and that the applicant had, since 1994, been liable to prosecution. Considering, firstly, that overrunning the reasonable time did not cause the proceedings to become time-barred and, secondly, that account should be taken of the specific circumstances of the case, and in particular of the fact that the applicant had no criminal record, the Court of Appeal merely pronounced a finding of guilt against the applicant.", "28. Referring to the planning inspector ’ s application lodged pursuant to Articles 149 et seq. of the above- mentioned decree of 18 May 1999, which it deemed to be reasonable, the Court of Appeal ordered the applicant to restore the site to its former condition and to demolish the building within one year of the judgment becoming final, with a fine of EUR 1 25 per day ’ s delay. It also authorised the municipal council or the planning inspector to enforce the order at the expense of the applicant in the event of non-compliance with the demolition order. The applicant was also ordered to pay the costs and expenses of the proceedings.", "29. The applicant appealed on points of law.", "30. By a judgment of 7 January 2003, the Court of Cassation dismissed the appeal.", "31. On grounds based on a violation of Article 6 § 1 of the Convention, the applicant claimed that the length of the criminal proceedings had been unreasonable and it could therefore be concluded that they were time-barred.", "32. The Court of Cassation held that exceeding a reasonable time did not cause criminal proceedings to become time-barred and that, consequently, the Court of Appeal had not been bound to base its decision on that point.", "33. The applicant also submitted that, bearing in mind that the Court of Appeal had merely pronounced a finding of guilt against her, she could not be bound to restore the site to its original condition or to pay the costs of the proceedings.", "34. The Court of Cassation responded that restoration of the site to its original condition did not constitute a penalty but a civil measure, in the same way as the payment of the full costs of the proceedings at the fixed rate, and that consequently these measures were not inconsistent with a simple finding of guilt.", "35. The court also dismissed the ground based on Article 8 of the Convention and Article 1 of Protocol No. 1 whereby the applicant alleged that after a thirty- year period during which they had tolerated the situation, thus creating an apparently lawful situation, the authorities could no longer rely on the public interest to justify interference with the peaceful enjoyment of her property rights and respect for her private life.", "36. The Court of Cassation found that the Court of Appeal had held, in its unfettered discretion, that the applicant had been most imprudent in maintaining the house without planning permission, that the measure sought by the planning inspector was reasonable and that, consequently, that ground of appeal was inadmissible.", "37. The house was demolished in July 2004 pursuant to an enforcement order. According to an expert, the value of the house at the material time was EUR 62, 635. The demolition costs amounted to EUR 3, 025." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "38. The Flemish town and country planning decree of 18 May 1999 (which came into force on 1 October 1999) provides as follows.", "“ Article 107", "The Flemish Government shall determine the conditions that must be met by an application in order to be considered complete. Where the application concerns works, operations or modifications as referred to in Article 158, the contractor shall mention specifically which works, operations or modifications have been carried out, made or continued without permission and for which of these works, operations or modifications planning permission is being sought.", "The Flemish Government may allow joint applications for permission to be made to the local authority under this decree and under the decree of 28 June 1985 concerning environmental permits. The Flemish Government may determine the conditions and procedures for compiling the application file.", "...", "CHAPTER I. – Criminal provisions", "Section 1. – Penalties", "Article 146", "Anyone who", "1. carries out, continues or maintains the operations, works or modifications defined in Articles 99 and 101, either without advance permission or in contravention of that permission, or after the expiry, cancellation or lapse of the term of that permission, or where that permission has been suspended", "...", "shall be liable, on conviction, to a prison sentence of between eight days and five years and a fine of between ( EUR 26) and ( EUR 400, 000) or either of these penalties.", "Article 147", "All the provisions of Book 1 of the Criminal Code, including Chapter VII and Article 85, shall apply to the offences referred to in Article 146.", "Section 2. – Inspection", "Article 148", "Without prejudice to the powers of senior police officers and their assistants [ agents et officiers de police judiciaire ], the planning inspectors, the other civil servants appointed by the Flemish Government, and the civil servants of the province and the municipalities of the province appointed by the governor thereof shall be authorised to detect the offences defined in this part and to place them on record. The reports establishing the offences described in this part shall remain valid until any evidence to the contrary is produced.", "The senior police officers, their assistants and the civil servants referred to in the first paragraph shall have access to the work site and to the buildings in order to carry out any inspections and draw up any observations as may be necessary.", "...", "Section 3. – Remedial measures", "Article 149", "§ 1. In addition to the penalty, and upon the request of the planning inspector or the municipal council of the municipality on whose territory the works, operations or modifications referred to in Article 146 have been carried out, the court shall order that the site be restored to its original condition or that the illegal use cease and/or the execution of any construction or adaptation works and/or payment of a fine equal to the capital gain accrued on the property subsequent to the offence.", "The capital gain can no longer be claimed in the following cases:", "1. in the event of repetition of an offence that has been made punishable by this decree;", "2. in the event of failure to comply with a cessation order;", "3. where the offence causes unacceptable planning-related nuisance for neighbours;", "4. where the offence constitutes a serious breach of the essential planning requirements for intended use under a spatial development or land-use plan.", "The Flemish Government may determine other conditions and procedures in cases in which the capital gain cannot be claimed.", "Where the action brought by the planning inspector and that brought by the municipal council do not coincide, the action brought by the first - mentioned shall take priority.", "For execution of the remedial measures, the court shall set a time - limit of a maximum of one year and, upon expiry thereof, at the request of the planning inspector or the municipal council, a fine per day ’ s delay in implementing the remedial measure.", "§ 2. An action for remedial measures shall be lodged with the prosecutor ’ s office by ordinary letter, on behalf of the Flemish region or the municipal council, by the planning inspectors and officials of the municipal council.", "§ 3. Where the action involves an application for construction or adaptation works and/or payment of an amount equal to the capital gain, explicit reasons must be given for that action in terms of town and country planning, compatibility with the immediate environment and the seriousness of the offence.", "§ 4. The application shall mention at least the relevant requirements and give a description of the situation prior to the offence. A recent extract from the planning register shall accompany the application.", "The Flemish Government may establish additional conditions which must be met by the letter referred to in § 2, first sub-paragraph, and the file accompanying that letter.", "§ 5. The court shall determine the amount of the capital gain.", "Where the offender is ordered to pay an amount equal to the capital gain, he or she may validly discharge his or her obligations by restoring the site to its original condition or by ceasing the adverse use in the year following the judgment.", "The Flemish Government shall determine the method for calculating the amount to be claimed and payment of the capital gain.", "Article 150", "Where an action for remedial measures brought by the civil party on the one hand and the planning inspector or the municipal council on the other do not coincide, the court shall determine the necessary remedial measure that it deems appropriate.", "Article 151", "The planning inspector and the municipal council may also, before the court of first instance, sitting as a civil court, in the jurisdiction in which the works, operations or modifications referred to in Article 146 are wholly or partially carried out, apply for remedial measures as defined in Article 149 § 1. The provisions of Article 149 § 1, second sub- paragraph, §§ 3, 4 and 5 and Article 150 shall also apply.", "Section 4. – Execution of the judgment", "Article 152", "The offender shall immediately inform the planning inspector and the municipal council, by registered mail or by delivery against receipt, when the reparation measure imposed has been voluntarily carried out. Following a site inspection, the planning inspector shall immediately draw up a report of his findings.", "The planning inspector shall send a copy of the report of his findings to the municipal authority and to the offender.", "Unless there is any evidence to the contrary, the report of findings alone shall constitute evidence that the remedial measure has been performed and of the date thereof.", "Article 153", "Where the site is not restored to its original condition, adverse use is not ceased or construction or adaptation works are not carried out within the time - limit set by the court, the decision of the court referred to in Articles 149 and 151 shall order that the planning inspector, the municipal council and, as the case may be, the civil party may proceed to enforce the judgment themselves.", "The authority or individual enforcing the judgment or order shall be authorised to sell, transport and remove the materials and objects generated by the restoration of the site to its original condition or the cessation of adverse use.", "Any offender still in default shall be bound to indemnify all enforcement costs, less the proceeds from the sale of the materials and items, upon presentation of a statement, issued by the authority referred to in sub - paragraph two, or budgeted and declared enforceable by the civil court judge dealing with attachment of property.", "...", "Article 158", "Where the offence referred to in Article 146 does not consist of the carrying out of works or the conduct or continuation of operations or modifications that are in contravention of spatial development or land - use plans or execution of the rules laid down by virtue of this decree or the requirements of a permit to divide into plots, and where either planning permission is subsequently obtained with a view to such works, operations and modifications, or the site is restored to its original condition and the adverse use is terminated, the planning inspector may reach a settlement with the offender provided that he has paid the amount agreed in settlement within the time - limit set by the planning inspector.", "The planning inspector shall not propose a settlement until he has received the prior written agreement of the public prosecutor.", "Payment of the amount agreed in settlement brings an end to the criminal proceedings and the right of the authorities to claim compensation. ”", "39. By a judgment of 3 June 2005, the Court of Cassation reiterated in the following terms the scope of the powers of control of the courts and tribunals where an application is brought before them based on Article 149 of the decree of 18 May 1999:", "“ Article 149 § 1, first sub - paragraph, as amended, of the decree must be read in the context of Article 159 of the Constitution, according to which the courts and tribunals do not apply administrative measures which are not in conformity with the law; ... According to that last provision, it is a matter for the court to assess the formal and substantive legality of the application referred to in Article 149 as amended and to ascertain whether it is in conformity with the law or whether it is founded on an abuse or misuse of powers; ... More particularly, the court must ascertain whether the authority ’ s decision to seek a particular remedial measure has been taken for the sole purpose of proper town and country planning; ... If it appears that the application is founded on grounds that are unrelated to town and country planning or a clearly unreasonable view of proper town and country planning, the court shall not allow the application; ... It is not a matter for the court, however, to assess the appropriateness of the measure sought; the court must allow the remedial measure sought if it is in conformity with the law. ”", "40. On 13 September 2005 the Court of Cassation held in another judgment that “ the court must order the site to be restored to its original condition whenever that proves necessary for the purposes of eradicating the consequences of the offence ”.", "41. Article 12 of the royal decree of 28 December 1972 concerning the design and implementation of draft regional plans and regional plans defines forested areas as follows:", "“ Forested areas are areas that are wooded or that are to be planted for the purposes of commercial exploitation. They may incorporate buildings that are necessary for such exploitation and for monitoring the timber, as well as hunting and fishing shelters, provided that the latter cannot be used as a residence, even on a temporary basis. Reconversion into an agricultural zone shall be allowed in accordance with the provisions of Article 35 of the Rural Code relating to the demarcation of agricultural and forested zones. ”", "42. Section 65 of the Town and Country Planning Act of 2 9 March 1962 provides :", "“ 1. In addition to the penalty, the court shall order, at the request of the delegated civil servant or the municipal council, but with their mutual agreement in the cases referred to in ( b ) and ( c ),", "( a) either restoration of the site to its original condition", "(b ) or landscaping or development works", "( c) or payment of an amount representing the capital gain accrued on the property subsequent to the offence;", "...”", "43. By a judgment of 26 November 2003 ( no. 154/2003), the Administrative Jurisdiction and Procedure Court ( Cour d ’ arbitrage ) considered that, although of a civil nature, a remedial measure is a matter of public policy and is, in certain respects, an ancillary penalty which cannot be dissociated from the criminal penalty; in fact, this measure is an extension of the criminal penalty because it is intended – beyond the criminal conviction – to prevent the continuation of a situation perpetuating the offence. The case - law of the Court of Cassation conflicts with that (judgments of 8 September 1998 and 16 January 2003).", "44. The Law of 17 April 1878 contains the preliminary part of the Code of Criminal Procedure. A new section 21 ter, which came into force on 12 December 2000, is worded as follows:", "“ If the length of the criminal proceedings should exceed a reasonable time, the judge may make a simple finding of guilt or impose a penalty lower than the minimum penalty provided for by law.", "If the judge makes a simple finding of guilt, the guilty party shall be ordered to pay costs and, as appropriate, to perform restitution. A special confiscation order shall be made. ”", "45. In relation to the prosecution of town and country planning offences, the Government have produced statistics covering the years 1998-2003. For the Flemish region alone, these statistics establish that, on average, 2, 580 reports are drawn up every year and that 251 judgments ordering restoration were issued in 1998 ( out of 453 decisions), 141 in 1999 ( out of 329), 183 in 2000 ( out of 328), 105 in 2001 ( out of 193), 76 in 2002 ( out of 129) and 131 in 2003 ( out of 264).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "46. The applicant complained that the reasonable time had been exceeded. She pointed out that even though the house had been built in 1967 at the latest, that she had inherited it in 1993 and that the report recording the offence had been drawn up in 1994, she had not been convicted until 200 2. She considered that, once the Court of Appeal had found that the reasonable period had been exceeded in the instant case, it should have concluded that the criminal proceedings were time-barred. She submitted further that the order to restore the site to its original condition and to pay the costs of the proceedings was inconsistent with a mere finding of guilt against her. She relied on Article 6 § 1 of the Convention, the relevant parts of which read as follows :", "“ In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time, by [ a ] ... tribunal ... ”", "47. According to the Government, the restoration of the site to its original condition did not constitute a penalty but a measure to remedy the damage done to the environment, since it could be ordered both by the criminal and the civil courts in accordance with Article 151 of the decree of 18 May 1999. It did not involve penalising the owner of the site maintained, but rather preventing the continuation of an offence. The measure was fully justified in order to protect the public interest and to remedy environmental damage. The strictly remedial scope of an order to demolish an unlawful building had moreover been confirmed by the case - law of the Court itself, notably in Saliba v. Malta ( no. 4521/02, 8 November 2005). It was a civil measure, not a criminal penalty.", "48. The Government contended that a mere finding of guilt without any penalty constituted, having regard to the Court ’ s case-law, an acceptable consequence of the finding that the reasonable time had been exceeded. Reparation of loss incurred as a result of the time - limit having been exceeded could not preclude reparation of the loss arising, for the general interest, out of acts constituting an offence.", "49. The Government considered that the length of the proceedings had no bearing on the lawfulness of a building under the town and country planning requirements laid down in the general interest. The applicant had been prosecuted for maintaining an unlawful building, which constituted a continuing offence not subject to limitation. For such time as the offence continued without the building being demolished, the remedial measure could not be excluded by way of compensation for loss incurred as a result of the reasonable time having been exceeded. It should also be pointed out that even if the domestic court had, by way of a penalty for exceeding the reasonable time, declared the proceedings inadmissible, there would have been nothing to prevent the planning inspector or the municipal council from applying for demolition in the civil courts.", "50. The applicant challenged that argument. She claimed that the Belgian courts had acknowledged that the reasonable time had been exceeded but that this overrunning had not been sufficiently compensated by that finding in so far as she had been ordered to demolish her holiday home on pain of a fine. She explained that, being in no doubt as to the lawfulness of the building, she had incurred considerable renovation costs and had been obliged to pay substantial sums of money to ensure that the site was restored to its original condition. Having regard to the criminal nature of the principal offence and to the seriousness of the measure imposed for the offender, the impugned measure did in fact constitute a penalty. The applicant considered furthermore that the judgment was contradictory in so far as it made a mere finding of guilt as regards the offence of maintaining an unlawful building, yet also ordered her to restore the site to its original condition. The measure was not a remedial one because in this particular case no damage had been done to the landscape since the house was not visible and the authorities had tolerated the building for more than thirty years.", "51. The Court considers it necessary in the first place to single out the following facts for particular consideration.", "52. As regards the offence of maintaining a building erected without planning permission, the Court of Appeal, bearing in mind that the reasonable time under Article 6 of the Convention had been exceeded, made a mere finding of guilt against the applicant under Article 21 ter of the Code of Criminal Procedure. According to that provision, the court may, if the reasonable time has been exceeded, make a simple finding of guilt or impose a penalty lower than the minimum penalty provided for by law.", "53. In addition, the Court of Appeal ordered the applicant to restore the site to its former condition and accordingly to demolish the impugned building.", "54. This “ remedial measure ”, consisting of restoring the site to its original condition, is provided for in Article 149 of the decree of 18 May 1999 ( see paragraph 38 above), which stipulates that in addition to the “ penalty ” the criminal court shall order the site to be restored to its original condition upon an application by the planning inspector. The court is not empowered to take the initiative in this regard (it cannot therefore order the measure of its own motion ); it can review the lawfulness of the measure but not the appropriateness. Furthermore, the measure may only be ordered as a result of a contravention of planning law and is therefore dependent on the outcome of the criminal proceedings.", "55. In the instant case, although the Court of Appeal had held that the reasonable time within the meaning of Article 6 of the Convention had been exceeded, it drew no conclusion from that as regards the remedial measure for which the competent planning inspector had applied to the public prosecutor in June 1995, and ordered the demolition of the house in issue.", "56. The Government alleged that there was no provision in Article 21 ter of the Code of Criminal Procedure for the “ remedial measure ”, which was of a strictly civil nature and was not dependent upon the outcome of criminal proceedings in the event that the reasonable time was exceeded.", "57. The Court notes that, even assuming that the measure falls under the civil head of Article 6, it is nonetheless subject to the reasonable - time requirement. It notes further that the classification of the remedial measure in domestic law is the subject of conflicting legal theory and case - law (see, in particular, the judgments of the Court of Cassation of 8 September 1998 and 16 January 2003, according to which it is not a penalty but a civil measure, and the ruling of the Administrative Jurisdiction and Procedure Court of 26 November 2003, according to which, although civil, the measure cannot be dissociated from the criminal proceedings – paragraph 43 above). In the present case the planning inspector ’ s application arose out of criminal proceedings brought against and having very serious consequences for the applicant.", "58. In its decision on admissibility of 11 May 2006, the Court concluded, having regard to the fact that the reasonable time had been exceeded, that the fact that the Court of Appeal had merely pronounced a finding of guilt against the applicant did not deprive the applicant of her status as victim because she had simultaneously been ordered to restore the site to its original condition.", "59. The Court reiterates that the concept of a “criminal charge ” within the meaning of Article 6 is an autonomous one. In earlier case-law, the Court has established that there are three criteria to be taken into account when it is being decided whether a person was “charged with a criminal offence” for the purposes of Article 6. These are the classification of the offence under national law, the nature of the offence, and the degree of severity of the penalty that the person concerned risked incurring (see, among other authorities, A.P., M.P. and T.P. v. Switzerland, 29 August 1997, § 39, Reports of Judgments and Decisions 1997-V).", "60. Having regard to the foregoing considerations, the Court considers that the demolition measure can be regarded as a “ penalty ” for the purposes of the Convention.", "61. Although the length of the proceedings on the merits (a little over three and a half years for three levels of jurisdiction between May 1999 and January 2003) does not in itself appear to be unreasonable, the police report recording the unlawful nature of the building dates from February 1994. It is on the basis of that finding that the continuing offence consisting of maintaining a building erected without planning permission was established and the applicant was subject to criminal proceedings and thus charged within the meaning of the case-law. Therefore, the reasonable time commenced as of the date of that report ( see Hozee v. the Netherlands, 22 May 1998, § 43, Reports 1998-III, and Włoch v. Poland, no. 27785/95, § 144, ECHR 2000-XI). Considered as a whole, the proceedings therefore lasted between eight and nine years for three levels of jurisdiction, including more than five years at the investigation stage, which, however, was not particularly complex.", "62. Furthermore, the Court sees no evidence to show that at any stage of the proceedings the applicant hindered the smooth running of the investigation. In these circumstances, the Court cannot deem a period of more than five years merely for the investigation phase to be reasonable.", "63. There has therefore been a violation of Article 6 § 1 of the Convention.", "...", "III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1", "71. The applicant complained of a violation of her property rights guaranteed by Article 1 of Protocol No. 1:", "“ Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. ”", "72. According to the Government, the local authorities do not inspect all inheritance deeds or monitor all tax returns or requests to be connected to the water - supply system for the purposes of checking whether the buildings in question had planning permission. Moreover, to make buildings erected without planning permission immune from taxation would be tantamount to encouraging this kind of offence. The water - supply companies were not empowered to check the lawfulness of the buildings that they connected to their network. Furthermore, the registration information provided by the applicant dated back to 1993-94, the time when the first record of offence was drawn up. The building ban covering the applicant ’ s land in no way constituted expropriation since she retained her full property rights. In addition, the States Parties were able to control the use of property for reasons of town and country planning affecting the general interest, and equip themselves with effective tools to ensure the pertinence of any measures thus adopted. Such tools included demolition and the restoration to their original condition of sites on which buildings had been erected in breach of legislation requiring planning permission. It had to be borne in mind that the applicant ’ s house could not be rendered compliant as it had been built in a forested area in which no building was allowed. Admittedly, the applicant had received no compensation in this particular case but it was in full knowledge of the facts that her father had built the house in an area in which no building was permitted. Unlike the case of Öneryıldız v. Turkey ([GC], no. 48939/99, ECHR 2004 -XII ), there was no uncertainty in Belgian law as to the legal status of the house in issue. Furthermore, the Belgian State could not be accused of negligence. In the instant case, the applicant ’ s situation had not been the subject of any disclosure that could have led to any assumption of tolerance on the part of the authorities.", "73. The Government indicated that the aim of the interference arising out of a demolition order made on the basis of town and country planning legislation was to protect the environment. That was a legitimate aim, in accordance with the general interest for the purposes of the second paragraph of Article 1 of Protocol No. 1, as the Court had already affirmed in Pine Valley Developments Ltd and Others v. Ireland ( 29 November 1991, § 57, Series A no. 222). The applicant could not claim any legitimate expectation on the basis of the age of the building. She had inherited a property which was in contravention of the law and had immediately carried out acts which themselves required planning permission, without making any attempt to apply for that permission or to ascertain whether or not the building could be made compliant. She could not therefore claim any tolerance on the part of third parties that had prejudiced her own rights. The measure complained of was therefore in no way disproportionate.", "74. According to the applicant, the Belgian authorities had to be deemed to have been aware of the existence of the building, notably because between 1994 and 2005 she had paid second - residence tax on it in addition to property tax and because various documents referring to the building had been registered. The Government, which had taken no action in relation to this house for over thirty years, could not rely on their poor organisation. The general interest required coherent, clear and rapid action on the part of the authorities. The circumstances of the case demonstrated that they had waived their right to take action in the instant case. Accordingly, it must be held that they could not suddenly go back on their decision without breaching the principle of the legitimate expectations of citizens. The enforced demolition had therefore constituted a disproportionate interference with the applicant ’ s property rights.", "75. The Court reiterates its case-law according to which the concept of “ possessions” in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to ownership of physical goods and is independent from the formal classification in domestic law. The issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 (see, mutatis mutandis, Zwierzyński v. Poland, no. 34049/96, § 63, ECHR 2001-VI). Certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision ( see Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999-II, and Beyeler v. Italy [GC], no. 33202/96, § 100, ECHR 2000-I). “Possessions” can be “existing possessions” or assets, including claims, in respect of which the applicant can argue that he has at least a reasonable and “legitimate expectation” of obtaining effective enjoyment of a property right ( see, for example, Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 83, ECHR 2001-VIII, and Gratzinger and Gratzingerova v. the Czech Republic ( dec .) [GC], no. 39794/98, § 69, ECHR 2002-VII).", "76. In the instant case, the impugned building had been in existence for twenty-seven years before the domestic authorities recorded the offence. Recording breaches of the town and country planning legislation and allocating the necessary resources to do so is undeniably the responsibility of the authorities. The authorities could even be considered to have been aware of the existence of the building in issue since the applicant had paid taxes on the building, just as her father had done before her. In this regard, the Belgian State cannot properly rely on its internal organisation and a distinction between the town and country planning authorities and the tax authorities. It must therefore be considered that the authorities tolerated the situation for twenty-seven years (1967-94) and continued to tolerate it for ten years after the offence had been established (1994-2004, the year in which the house was demolished). After such a long period had elapsed, the applicant ’ s proprietary interest in the enjoyment of her holiday home had been sufficiently established and weighty to amount to a substantive interest and therefore a “possession” within the meaning of the rule expressed in Article 1 of Protocol No. 1. Furthermore, the applicant had a “legitimate expectation” of being able to continue to enjoy that possession.", "77. The Court observes that the applicant ’ s house was demolished on the orders of the domestic authorities. This was undeniably an interference with the applicant ’ s “possession”. That interference was in accordance with the law (the decree of 18 May 1999). It was also intended to control the use of property in accordance with the general interest since it involved bringing the property into conformity with a land-use plan establishing a forested zone in which no building was permitted. The debate therefore centres on the proportionality of this interference. In this regard, the Court must ascertain whether a fair balance was struck between the demands of the general interest and the requirements of the protection of the individual ’ s fundamental rights. The search for this balance is reflected in the structure of Article 1 as a whole, and therefore also in the second paragraph thereof: there must be a reasonable relationship of proportionality between the means employed and the aim pursued ( see Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 75, ECHR 1999 ‑ III). The requisite balance will be upset if the person concerned has had to bear “an individual and excessive burden” ( see, in particular, James and Others v. the United Kingdom, 21 February 1986, § 50, Series A no. 98).", "78. The Court notes that this case concerns rules applicable to town and country planning and environmental protection, areas in which the States enjoy a wide margin of appreciation.", "79. It reiterates that while none of the Articles of the Convention is specifically designed to provide general protection of the environment as such ( see Kyrtatos v. Greece, no. 41666/98, § 52, ECHR 2003 -VI ), in today ’ s society the protection of the environment is an increasingly important consideration ( see Fredin v. Sweden ( no. 1), 18 February 1991, § 48, Series A no. 192). The environment is a cause whose defence arouses the constant and sustained interest of the public, and consequently the public authorities. Financial imperatives and even certain fundamental rights, such as ownership, should not be afforded priority over environmental protection considerations, in particular when the State has legislated in this regard. The public authorities therefore assume a responsibility which should in practice result in their intervention at the appropriate time in order to ensure that the statutory provisions enacted with the purpose of protecting the environment are not entirely ineffective.", "80. Thus, restrictions on property rights may be allowed on condition, naturally, that a fair balance is maintained between the individual and collective interests concerned ( see, mutatis mutandis, Fotopoulou v. Greece, no. 66725/01, 18 November 2004).", "81. The Court therefore has no doubt as to the legitimacy of the aim pursued by the impugned measure : the protection of a forested area in which no building is permitted.", "82. It remains to be determined whether the benefit for proper town and country planning and protection of the forested area in which the applicant ’ s house was located can be considered proportionate to the inconvenience caused to her. In this regard, various factors must be taken into consideration.", "83. Firstly, the Court notes that a great deal of time had elapsed since the offence occurred. The applicant, and her father before her, had had peaceful and uninterrupted enjoyment of the holiday home for a total of thirty-seven years. The deed of partition drawn up on 6 January 1986 between the applicant and her father had been registered with the Mortgage Registrar at the Ministry of Finance and a registration fee had been paid ( see paragraph 8 above). On the death of the applicant ’ s father in 1993, the notarised deed of distribution specifically referred to the house as a holiday home and the applicant paid the inheritance tax. Since then, the applicant had been paying an annual property tax and second - residence tax on the house ( see paragraph 9 above). The water - supply company carried out works to connect the house to the water and drainage system with no reaction from the authorities ( see paragraph 11 above). Furthermore, when the offence was established, after twenty-seven years, the authorities then allowed a further five years to elapse before instituting criminal proceedings, thus treating the matter with no particular urgency. It is therefore clear that the authorities knew or should have known of the existence of the applicant ’ s house for a long time. However, notwithstanding the provisions of the relevant legislation, they failed to take the appropriate action to ensure compliance. They thus contributed to the continuation of a situation which could only be detrimental to the protection of the forested area which that legislation sought to protect.", "84. The Court observes, secondly, that Articles 107 and 158 of the decree of 18 May 1999, taken together, make general provision for an application to be made to render compliant a building without planning permission. However, the provisions of Article 158 clearly indicate that a building erected in contravention of a land- use plan ( see paragraph 38 above) cannot be rendered compliant. The applicant ’ s house was located in a forested area and, under Article 12 of the royal decree of 28 December 1972, that area could incorporate only buildings necessary for the exploitation and monitoring of the timber, as well as hunting and fishing shelters, provided that the latter could not be used as a residence, even on a temporary basis ( see paragraph 41 above).", "85. In addition, the fact that the applicant had not been the owner of the property when the house was built and that the authorities had failed to react for a protracted period of time could not give the applicant the impression that proceedings could not be brought against her, since under Belgian law the offence was not subject to limitation and the public prosecutor could decide to apply the law at any time.", "86. Lastly, the Court cannot see what measure other than restoration of the site could have been sought by the planning inspector in this particular case, particularly as none of the measures set out in Article 149 § 1 of the decree of 18 May 1999 (order to cease all adverse use, order to carry out building works, payment of the capital gain acquired by the property subsequent to the contravention – see paragraph 38 above) appeared appropriate in the particular circumstances of the case, which concerned an undeniable interference with the integrity of a forested area in which no building was permitted.", "87. As a secondary consideration, the Court distinguishes this case from the “Turkish coast” cases (see, among many others, N.A. and Others v. Turkey, no. 37451/97, ECHR 20 05-X). In those cases, the applicants ’ property had been registered in the land register and the parties concerned had obtained from the Ministry of Culture and Tourism a tourist- investment certificate with a view to building a hotel on the land, and the State Planning Agency had awarded them an investment- incentive certificate with a view to building the hotel. Those cases did not therefore involve the merely implicit consent of the authorities, as in the instant case, where the house in issue had been erected without permission by the applicant ’ s parents.", "88. All the above leads the Court to conclude that the applicant has not suffered disproportionate interference with her property rights.", "89. Accordingly, there has been no violation of Article 1 of Protocol No. 1.", "...", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "94. Under Article 41 of the Convention,", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party .”", "A. Damage", "95. The applicant submitted that she had incurred considerable pecuniary damage. Since the property in issue had been in existence for twenty-seven years without having been subject to any measures, she had undertaken restoration of the land and house in good faith and invested considerably in it. When she had inherited the house from her father, it had been in poor condition; she had decided to renovate it, being in no doubt as to its lawfulness. She had thus incurred damage of 62, 635 euros (EUR) for the loss of the house, EUR 43, 865.46 for the investments made and EUR 3, 025 for the demolition costs.", "96. The applicant considered that she had also suffered non-pecuniary damage, which she quantified ex aequo et bono at EUR 25, 000. Firstly, she had been deprived of the holidays and periods of rest that she used to take at her second home. Furthermore, since it was the only thing that she had inherited from her father, in her view the house had been of particular value.", "97. The Government considered that the amount indicated by the applicant as representing the market value of her property was unrealistic. In their view, the house was worthless on the property market. Articles 1 41 and 142 of the decree of 1 8 May 1999 imposed an obligation, upon the sale of any immovable property, to inform the buyer of the existence of planning permission. Since she would have been unable to produce evidence of such permission, the applicant would not have been able to find a buyer. Her house had not thus added any value to the land, of which, moreover, she had not been dispossessed. Her claim in respect of pecuniary damage should therefore be dismissed.", "98. The Government left the matter of non-pecuniary damage to the Court ’ s discretion.", "99. The Court points out that the violation found relates to the fact that the reasonable time was exceeded. It does not however see any causal link between that violation and the alleged pecuniary damage. It therefore dismisses this head of the claim.", "100. As to non-pecuniary damage, the Court considers that the unreasonable length of the investigation in issue caused prolonged uncertainty as to the fate of the house. This situation of uncertainty justifies an award of compensation. Ruling on an equitable basis, as required by Article 41, the Court awards the applicant EUR 5, 000 for the non-pecuniary damage thus incurred.", "...", "C. Default interest", "105. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicants were born in 1 926, 1923, 1924, 1930, 1935, 1912 and 1957 respectively. They live in Istanbul and Ankara.", "9. According to information in the case file, a plot of land measuring 45, 000 sq. m (45 dönüm ) [1] in the village of Kefken, Kandıra, close to the forest and the Black Sea, was registered in the land register (plot no. 135) in August 1911 in the name of Tevfik Beyzade Hurşit Bey, an ascendant of the applicants.", "10. On 9 July 1960 a plot of land measuring 102 500 sq. m, in the village of Kefken, Kandıra, close to the forest and the Black Sea, was registered in the land register (plot no. 135) by the cadastral commission [2] in the names of Tasfire Güneş, Reşat Güneş, Saffet Güneş and Turan Güneş, the heirs of Tevfik Beyzade Hurşit Bey. Following the death of Reşat Güneş in 1977, of Tasfire Güneş in 1978 and of Turan Güneş in 1982, the respective shares were transferred to their successors and registered in the land register : Nihal Ayser Turgut, Tevfik Güneş and Turgay Güneş are the heirs of Reşat Güneş; Nermin Solmaz Güneş and Ayşe Ayata are the heirs of Turan Güneş. Hurşit Güneş had inherited shares from Turan Güneş and Tasfire Güneş as the son of the former and husband of the latter.", "A. Proceedings concerning the annulment of the title to the applicants ’ land and its entry in the land register as property belonging to the Treasury", "11. On 3 January 1962 the Ministry of Forestry brought proceedings before the Kandıra Cadastral Court ( “ the court ” ) to have the cadastral commission ’ s assessment of the applicants ’ title to the land [3] declared void on the ground that the land was part of the public forest estate.", "12. On 5 January 1962 the Treasury in turn brought proceedings of the same kind [4] before the court and sought registration of the land as property belonging to the Treasury.", "13. On 23 May 1965 the court declined jurisdiction under section 28 of the Land Registry Act ( Law no. 509 ) and referred the matter to the Land Registry Directorate ( “ the Directorate ” ). On an unspecified date in 1966 the Directorate referred the matter back to the court.", "14. In 1966, by judgment no. 1966/11-1967/66, the court allowed the Ministry of Forestry ’ s application. In the reasons for its judgment, it considered essentially that the disputed land was part of the public forest estate and that therefore, pursuant to the relevant provisions of the Turkish Constitution, it could not be privately owned.", "15. By a judgment of 18 June 1968 the Court of Cassation partly upheld the first-instance court ’ s judgment in respect of Turan Güneş and Reşat Güneş and remitted the remainder of the case to the same court.", "16. At a hearing before the court, Turan Güneş stated that he had, in the meantime, filed an application with the Administrative Court for the delimitation of the land at issue to be set aside and accordingly asked the court to stay proceedings in the pending case until the Administrative Court had delivered a decision on the matter.", "The Administrative Court subsequently dismissed the application to have the matter set aside. On 29 December 1969 the Supreme Administrative Court upheld the decision of the administrative court and on 12 January 1974 dismissed an application for rectification lodged by Turan Güneş. The judgment became final.", "17. By a judgment of 29 June 1972, considering that the land at issue was part of the public forest estate, the court decided that it could not be privately owned and declared the title deed void.", "18. On 4 July 1974 the Court of Cassation quashed the first-instance judgment, holding as follows :", "“ Following the amendment of section 1 of Law no. 6831 [ the Forestry Act ] by Law no. 1744, jurisdiction for dealing with issues concerning the classification of land as forest was assigned to the ordinary courts and [such measures] ceased to be administrative in nature. Having regard to its procedural nature, this provision is applicable to earlier events. Consequently, although the decision of the Ministry of Forestry was upheld by the Supreme Administrative Court, since jurisdiction in this respect has been transferred from the administrative to the ordinary courts, the judgment of the Supreme Administrative Court can no longer be applied. Furthermore, [in the instant case], the applicants relied upon the land register. This must be consulted and applied to the land at issue. In addition, since the judgment of the Court of Cassation is to be regarded as favourable to the heirs of Hurşit because they were joint owners under the ordinary regime of ownership in common, the land must be registered in the name of the defendants if it is established that it is not forest land, within the meaning of section 1 of Law no. 6831, as amended by Law no. 1744. Otherwise, since cadastral registration of State forests can only be carried out by special commissions set up for that purpose, in accordance with section 7 of Law no. 6831, and seeing that it is only possible to mark out the boundaries between State forests and private forests, it must be established whether the land at issue was returned or if it falls within the scope of restitution pursuant to Law no. 5658, after having been nationalised pursuant to Law no. 4785; in the latter case, it must be listed as private forest; otherwise, it must be classified as State forest and be excluded from cadastral registration [ in the name of a private individual]. ”", "19. On 10 November 1977, relying on the expert reports that had been prepared at its request, the court ordered the land at issue to be entered in the land register in the names of Tasfire, Saffet, Turan and Reşat Güneş.", "20. On 28 March 1978, on an appeal by the Ministry of Forestry, the Court of Cassation overturned the court ’ s judgment. It held that the expert reports were inadequate and that the court should first of all seek the detailed opinion of the Ministry as to whether or not the land at issue was part of the public forest estate and, if required, commission fresh expert reports on the matter.", "21. Various surveys ordered by the court on 23 July 1997 and 20 April 2001, based notably on aerial photographs taken in 1959, concluded that the land in question was part of the public forest estate. These surveys were supported by further expert reports dated 21 August 1997 and 28 April 2001.", "22. On 8 May 2001 the court ruled that the land at issue was part of the public forest estate; it declared void the cadastral commission ’ s assessment of [5] the applicants ’ title deeds to the land and ordered it to be entered in the land register as belonging to the Treasury. In doing so, it relied on the aforementioned expert reports, the settled case-law of the plenary Court of Cassation – to the effect that title deeds to property forming part of the public forest estate had no legal value – and on the provisions of Article 169 § 2 of the Constitution enshrining the principle of the inalienability of ownership of State forests. As regards the buildings on the land, the court declined jurisdiction ratione materiae in so far as they had been erected after the title to the land deeds had been issued.", "As regards the status of the applicants and/or their ascendants as parties to the proceedings, the court found, firstly, that the judgment had become final in respect of Turan and Hurşit Güneş since on 18 June 1968 the Court of Cassation had upheld the first - instance judgment concerning them and secondly, that the heirs of Turan and Hurşit Güneş had been allowed to join the proceedings following the death of their ascendants.", "23. On 18 November 2001 the Court of Cassation upheld the judgment of the first - instance court.", "24. By a judgment of 29 April 2002, served on the applicants on 11 June 2002, the Court of Cassation dismissed an application by them for rectification of the judgment.", "B. Application of section 2 ( B ) of the Forestry Act ( Law no. 6831 )", "25. Following the Court of Cassation ’ s judgment of 28 March 1978, the office of the chairman of the Forestry Cadastral Commission ( Orman Kadastro Komisyon Başkanlığı ) informed the Cadastral Court on 28 March 1978 that part of the disputed land had been delimited as part of the Gökdağ State forest and that the other part of the land was subject to the application of section 2 ( B ) of the Forestry Act ( Law no. 6831 ) and was consequently excluded from the public forest estate and transferred to the Treasury.", "26. On an unspecified date Turan Güneş lodged an application for judicial review with the District Court, which registered the case as no. 1989/90. Turan Güneş challenged the application of the aforementioned section 2 ( B ) to the land in question.", "27. On 12 April 1988 the heirs of R. Gödek applied to the court to be allowed to join the proceedings as intervening parties on the ground that they held a document of title over part of the land at issue to which section 2 ( B ) of Law no. 6831 had been applied. On 24 August 1988 the court allowed their application.", "28. By a judgment of 11 July 1990 the aforementioned case no. 1989/90 was joined to the main proceedings pending before the court.", "29. On 5 June 1991, claiming title to the land at issue, Z.A.K. also applied to the court for leave to join the proceedings as an intervening party; the court allowed the application on 2 December 1992. Following the death of Z.A.K. during the course of the proceedings, his successors pursued the case before the court.", "30. In a judgment of 8 May 2001 the court dismissed the applicants ’ application in the joined case no. 1989/90 and the applications by the other civil parties concerning delimitation, after having decided to declare the applicants ’ document of title void on the ground that the land at issue was part of the public forest estate.", "31. On 3 September 2003 the Ministry of the Environment and Forestry requested the İzmit Forestry Directorate to mark the disputed area of 102, 500 sq. m [6] as “ forest ” on the relevant maps pursuant to the judgment handed down in the matter, and to annul the decision of the cadastral commission, of which public notice had been given on 30 May 2003, excluding that land from the perimeter of the forest estate pursuant to section 2 ( B ) of Law no. 6831.", "C. The status of existing buildings on the disputed land", "32. On 27 October 1967, through a notary, Tasfire, Reşat, Saffet and Turan Güneş requested a private company to cease occupying and refrain from building on the land at issue.", "33. On 17 May 1990 the office of the Chief of General Staff ( Genelkurmay Baskanlığı ) decided to transform the site of the Kefken military post into a military security zone.", "34. On an unspecified date Hurşit Güneş lodged a complaint with the Kandıra public prosecutor against individuals who, he alleged, had sold various plots of the disputed land to third parties while the proceedings concerning the land were pending before the Cadastral Court. He also applied for the existing buildings on the land to be demolished.", "35. On 15 February 1996 the public prosecutor decided to take no further action on the ground that the land was inside the area delimited as forest land and that the criminal court of first instance had delivered judgments concerning the occupants in 1994, further to complaints by the forestry authorities. On 18 April 1996 the Sakarya Assize Court dismissed an objection by Hurşit Güneş.", "36. On 7 March 1996 an expert report was issued by two experts at the request of the Kandıra district governor ’ s office. The report noted the presence of approximately fifty private housing units and a military holiday camp belonging to the Ministry of Defence, comprising, inter alia, several houses, a tennis court, a picnic area, a kitchen and various storerooms, built between 1970 and 1995. The report was forwarded to Hurşit Güneş on 22 March 1996.", "37. On 10 December 1997, in an additional report, the three experts noted that part of the disputed land, measuring 28, 875 sq. m, had ceased to have certain characteristics of forest land prior to 31 December 1981, since it had first been used as agricultural land and had subsequently been used as residential land on which fifty-two reinforced concrete buildings of various kinds had been built.", "38. On 18 May 1998 an agricultural engineer noted in a report submitted to the Cadastral Court that the land at issue could not be considered forest land and that it had features of third - class dry agricultural land but was used as building land ( arsa ).", "39. On 9 June 1998 the technical expert added his report to the case file. A sketch of the relevant land showed the presence of the buildings and the military zone.", "40. On 17 September 2002 approximately forty occupants/residents of the disputed land filed a petition with the Ministry of Forestry. They asked that the land at issue, on which there were, according to them, some one hundred and fifty individual dwellings, be excluded from the forest estate and registered as belonging to the Treasury. They expressed their desire to purchase the parts of the land corresponding to their housing plots.", "XII. Property rights", "Article 35", "“ Everyone has the right to own and inherit property. These rights may be limited by law only in the public interest. The exercise of the right to own property shall not be in contravention of the public interest.", "... ”", "D. Expropriation", "Article 46 [ as amended by Law no. 4709 of 3 October 2001]", "“ The State and public corporations shall be entitled, where the public interest so requires, to expropriate privately owned real estate wholly or in part or to impose public easements on it, in accordance with the rules and procedures prescribed by law, provided that the actual compensation is paid in advance.", "Compensation for expropriation and for increased value, determined by a final judgment, shall be paid in cash and in advance. However, the procedure to be applied for compensation for the expropriation of land in order to carry out land reform, major energy and irrigation projects, housing and resettlement schemes and afforestation, and to protect the coasts and to build tourist facilities, shall be regulated by law. In such cases, the law may allow payment in instalments, but the payment period shall not exceed five years; any such payments shall be made in equal instalments.", "Compensation for land expropriated from small farmers who cultivate their own land shall in all cases be paid in advance.", "Interest equivalent to the highest applicable rate of interest on public debts shall be payable on the instalments referred to in the second paragraph above. ”", "E. Nationalisation and privatisation", "Article 47 [ as amended by Law no. 4446 of 13 August 1999 ]", "“ Private enterprises performing public services may be nationalised when this is required by the public interest.", "Nationalisation shall be carried out on the basis of actual value. The methods and procedures for calculating actual value shall be prescribed by law.", "The rules and procedures concerning the privatisation of enterprises and assets owned by the State, State economic enterprises and other public corporate bodies shall be prescribed by law.", "Those investments and services carried out by the State, State economic enterprises and other public corporate bodies which may be performed by or delegated to private individuals or corporate bodies through private - law contracts shall be determined by law.", "... ”", "IV. Forests and the inhabitants of forest regions", "A. Protection and development of forests", "Article 169", "“ The State shall enact the necessary legislation and take the necessary measures for the protection and extension of forest areas. Forest areas destroyed by fire shall be reafforested; other agricultural and livestock-breeding activities shall not be allowed in such areas. All forests shall be under the care of the State.", "Ownership of State forests shall not be transferred to others. State forests shall be managed and exploited by the State in accordance with the law. Ownership of such forests cannot be acquired through adverse possession, nor may they be subject to any easements other than in the public interest.", "Acts and actions which might damage forests shall not be permitted. No political propaganda which might lead to the destruction of forests shall be carried out; nor shall any amnesties or pardons be specifically granted for offences against forests. Offences committed with the intention of burning or destroying forests or reducing forest areas shall not be included within the scope of any general or specific amnesty laws.", "The reduction of forest boundaries shall be prohibited, except in respect of areas whose preservation as forests is considered to have no theoretical or practical scientific purpose, but whose conversion into agricultural land has been found to be indisputably advantageous, and in respect of land which, from a theoretical and practical scientific perspective, ceased to have any characteristics of forest land prior to 31 December 1981 and whose use for various agricultural purposes, for example as fields, vineyards, orchards or olive groves or for livestock breeding, has been found to be advantageous, and in respect of built-up areas within cities, towns or villages. ”", "B. The Civil Code", "43. The relevant principles of the Turkish Civil Code read as follows :", "Article 683 § 1", "“Everyone has the right to own, use, manage and dispose of his property as he wishes, within the limits of the legal system. ”", "Article 705 § 1", "“ Real property is acquired through registration. ”", "Article 1007 § 1", "“ The State is liable for any damage resulting from the keeping of land registry records. ”", "C. Forestry laws", "44. Until 1937, forests were not subject to any special regulations. Between 3 February 1937 and 31 August 1956, five main laws concerning forest property were enacted: Laws nos. 3116, (1937), 4785 (1945), 5653 (1950), 5658 (1950) and 6831 (1956).", "1. Law no. 3116 of 8 February 1937", "45. Section 1 of this Law defines the concept of “ forest ”. Section 3 provides that there are four types of forest: State forests, forests belonging to local authorities, forests belonging to foundations and private forests. The latter belong to the State but are used by individuals who pay a tax on their use.", "2. Law no. 4785 of 9 July 1945", "46. Section 1 of this Law reads as follows :", "“ All forests which belong to natural or legal persons, individuals, foundations, villages, municipalities, administrative authorities or public corporate bodies on the date of entry into force of this Law shall be nationalised in accordance with this Law. These forests shall be transferred to the State without the need for any notification or procedure. ”", "47. Section 4 of this Law provides for exceptions to nationalisation, notably as regards forests containing certain types of tree planted by individuals.", "48. Section 7 of this Law makes provision for compensation in the event of nationalisation.", "3. Law no. 5653 of 24 March 1950", "49. Law no. 5653 redefines forest land. By section 1 ( c ), scrubland is no longer considered to be forest unless the land it covers is protected or produces a harvest, in accordance with the conditions defined by this Law.", "50. Section 1 further provides that, as of 3 April 1950, areas that have ceased to have the characteristics of forests will no longer be treated as such.", "51. This Law distinguishes between three kinds of forest land : State forests, forests belonging to legal entities (such as villages and municipalities) and private forests.", "4. Law no. 5658 of 24 March 1950", "52. Section 1 of Law no. 5658 provides for nationalised land to be returned in certain conditions :", "“ Of those forests nationalised by Law no. 4785 of 9 July 1945, forests which are not situated within State forests and which are surrounded by agricultural land such as fields, vineyards, gardens, places such as private forests, cities, towns or village grazing land, and forests belonging to villages, municipal authorities or individuals which are surrounded by land not classified as forest land under section 1 of the Forestry Act, provided they are entirely separate from State forests, shall be returned upon request to their owners or to the heirs thereof. ”", "5. Law no. 6831 of 31 August 1956", "53. Section 1 of this Law defines the concept of “ forest ” and the exceptions thereto.", "54. Section 2 ( B ) ( as amended on 5 June 1986 by Law no. 3302) provides :", "“ Places that scientifically and technically ceased to be forest land before 31 December 1981 shall be excluded from the boundaries of the forest, firstly if it has been determined that such places are suitable for various agricultural purposes as farmland, vineyards, gardens, olive groves, fruit, hazelnut or pistachio ( or pine nut) orchards, or for livestock purposes, and secondly, in the case of built-up areas within cities, towns or villages.", "The places excluded from the forest boundaries shall be transferred to the Treasury if they already belonged to the State, or to public legal entities if they already belonged to them, or to their owners if the areas in question were private forests. The necessary rectifications and entries shall be made permanently in the land register when the procedure [ for exclusion from forest boundaries ] becomes final.", "No reduction to forest areas may be made other than in the specified places ... ”", "55. Section 4 states that, from the point of view of ownership and administration, there are three types of forest: State forests ( sections 7 to 44), forests belonging to public legal entities ( sections 45 to 49) and private forests ( sections 50 to 55).", "56. Section 7 of this Law provides that the nature of an area – State forest or private forest – is defined by the cadastral commissions. Furthermore, sections 7 to 12 of the Law govern the way in which the cadastral commissions operate.", "57. State forests are under the protection of the State. Any act altering their forest character is prohibited ( sections 14 to 19 in particular) and constitutes an offence. Sections 79 to 90 set out the procedures applicable to the prosecution of unlawful acts. The criminal penalties for unlawful acts are set out in sections 91 to 114. The penalties for certain offences may be reduced if the perpetrator of the act constituting the offence is the owner of the area in question (see, for example, section 91 (6) ).", "58. Private forests are subject to inspection and supervision by the State. Their owners have a limited right to make use of them. Furthermore, they are entitled, inter alia, to build on an area not exceeding 6% of the total surface area of the land ( section 52 (2) ) if the private forest concerned is located in a built-up area (village, town or city ).", "59. Law no. 6831 has been amended on various occasions, by Laws nos. 1744 (1973), 2896 (1983), 3302 (1986), 3373 (1987), 3493 (1988), 4079 (1995), 114 (1995), 4570 (2000), 4999 (2003), 5177 (2004), 5192 (2004) and 5728 (2008).", "D. Domestic case-law", "60. On 23 June 1964, the Constitutional Court abrogated sections 3 and 4 of the Forestry Act ( Law no. 4785 ) since they were inconsistent with Article 38 of the Constitution as in force at the material time, which took the actual value of the property as the basis for any compensation payable in the event of expropriation. Section 3 indicated that the value of a nationalised forest was assessed on the basis of the tax return. Section 4 defined the criteria for the purchase of buildings located in a nationalised forest. On the issue of whether the abrogation of the provisions concerned would create a legal vacuum in this sphere, the Constitutional Court held as follows :", "“ ... when the provisions at issue are abrogated, the general provisions of the Expropriation Act will be applied to the expropriation of forests. ”", "61. On 28 March 1995 the Court of Cassation found that under Article 917 of the old Civil Code, the Treasury was responsible for the proper keeping of land registers. In its judgment it set forth the criteria under which the Treasury could be held liable: damage, an unlawful act by a civil servant and a causal link between the damage and the act. It also pointed out that the damage must have been permanent and the application must have been made within one year from the actual occurrence of the damage and, whatever the circumstances, within a general limitation period of ten years.", "62. In a judgment of 26 April 1999 the Court of Cassation repeated that under Article 917 of the old Civil Code, the Treasury was responsible for the proper keeping of land registers. In that particular case, the party concerned was unable to have certain interim measures applied to the property of the person indebted to him because the land registers had not been kept in accordance with the regulations.", "63. On 7 May 2002, the general assembly of the plenary Supreme Administrative Court ( Danıştay Dava Daireleri Genel Kurulu ) found that the ordinary courts had jurisdiction where a document of title had been declared void by the Cadastral Court on the ground that the land at issue had been part of the public forest estate ( the area was subsequently excluded from the public forest estate as it had ceased to have the characteristics of forest land ). In that case, the administrative courts had dismissed a claim for compensation, relying on the judgment of the Cadastral Court in which the interested party ’ s document of title had been declared void. They had considered that that judgment was in accordance with the law.", "64. In its judgment of 7 May 2002 the First Division of the Court of Cassation quashed the judgment of the lower court that had dismissed the interested party ’ s application and held that the State should be found strictly liable for the acts of civil servants of the cadastral commission, who had concluded in error that the land at issue was not part of the public forest estate. Because of that act, no reference had been made in the land register as regards the forest status of the land, which had been sold to third parties who had relied upon the registers. In that particular case, the land at issue had been registered in the names of third parties following the conclusions of the cadastral commission in 1959 and a deed of title had initially been issued in their name. The plaintiff had acquired the land in 1994 on the basis of information appearing in the land register, which made no reference to its being forest land. Between 1977 and 1982 the cadastral commission carried out further surveys and concluded that the land at issue was no longer part of the forest estate as it had ceased to have the characteristics of a forest. It decided to exclude it from the forest estate. A note to this effect was added to the land register in 1995.", "65. On 30 October 2006 the Third Division of the Court of Cassation upheld the District Court ’ s judgment of 12 June 2006, which had found that the administrative courts had jurisdiction to deal with disputes concerning claims for compensation in connection with land registration following surveys carried out by the cadastral commission. In that particular case, the land had been acquired by the interested party in 1953. It had then been registered in his name following a cadastral commission survey. Later, the document of title issued to the party concerned was declared void by the court on the ground that the land was part of the forest estate. The court dismissed the application, holding as follows:", "“ The claimant is seeking compensation on the basis of two administrative measures : the issuing of the document of title and its invalidation as a result of the delimitation of the forest boundary. The claimant submits in addition that the administrative authority committed an error in so far as he, as the holder of the document of title, was not notified of the result of the delimitation following the survey. A claim for compensation for damage caused by an administrative measure may only be brought before the administrative court by way of an action for damages. ”", "On 30 January 2008, in response to an application of 5 December 2007 by Mr M. Öztok, the claimant ’ s representative in the above-mentioned case ( and also the representative of the applicant in the case of Köktepe v. Turkey, no. 35785/03), the Presidential Council of the Court of Cassation ( Yargıtay Birinci Başkanlık Kurulu ) stated that there was no contradiction between the two earlier judgments and that accordingly, it was not necessary to resort to the case-law harmonisation procedure.", "66. By a judgment of 19 April 2006 the general assembly of the Court of Cassation upheld the judgment of the lower court, which had held the State strictly liable for the acts of civil servants of the Land Registry Directorate. In that particular case, a third party had sold land to the claimant in 1976 on the basis of a false court decision, despite the fact that in 1954, the land in question had been classified by the cadastral commission as grazing land ( mera ) and therefore State property. The lower court had partly allowed the claim and had awarded compensation for the house that the claimant had built and the trees he had planted on the land at issue. The Court of Cassation held that the fact that the claimant could take action against the third party did not exempt the administration from strict liability. Even in the absence of fault, the State was liable as long as three conditions were met: there had been a wrongful act, damage had been caused and there was a causal link between the wrongful act and the damage. Furthermore, the Court of Cassation made reference to the provisions of the Civil Code protecting the good faith of a person who had relied on the land register.", "67. On 26 June 2006 the Bursa Administrative Court dismissed a claim for compensation for damage allegedly suffered by the claimant as a result of having his document of title declared void because his land was part of the forest estate. The claimant applied to the Administrative Court after having referred the matter to the ordinary courts, which had declined jurisdiction ratione materiae. According to the Administrative Court, the claim was out of time as the claimant should have brought it within sixty days from the date on which the judgment annulling his document of title became final." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Constitutional provisions", "41. Article 74 of the Turkish Constitution of 1924 reads as follows:", "“ No one shall be deprived of his possessions save in the public interest as established by a procedure provided for by law and subject to prior compensation.", "The methods for the assessment and payment of compensation for the expropriation of land and forests, for the purposes of enabling farmers to own land and of nationalising forests, shall be determined by special statutes. ”", "42. The relevant provisions of the Turkish Constitution of 1982 read as follows:", "THE LAW", "68. The applicants submitted that the annulment of their document of title and its re-registration in the name of the Treasury, without payment of compensation, constituted disproportionate interference with their right to the peaceful enjoyment of their possessions, within the meaning of Article 1 of Protocol No. 1.", "...", "II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1", "83. The applicants submitted that the annulment of their document of title and its re- registration in the name of the Treasury, without payment of compensation, constituted disproportionate interference with their right to the peaceful enjoyment of their possessions within the meaning of Article 1 of Protocol No. 1, which reads as follows:", "“ Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. ”", "A. The parties ’ submissions", "1. The applicants", "84. The applicants stated that the domestic courts had decided to register land for which they had held a document of title for at least three generations as belonging to the Treasury. They pointed out that the land had been purchased in 1913 by Hurşit Güneş, to whom the competent authorities had issued a document of title in due form; their ascendants had then inherited the land, which on 9 July 1960 had been registered in their names in the land registers. Furthermore, they submitted that the surveys classifying the land as part of the forest estate did not reflect reality, since a military holiday camp, comprising, inter alia, houses, a tennis court, a picnic area, a kitchen, various storerooms and accommodation for private use, had been built there in the 19 70s even though the applicants had not transferred the land to third parties and had not been notified of any expropriation or other measure depriving them of their property in the public interest.", "In the applicants ’ submission, the annulment of their document of title and the registration of the land as belonging to the Treasury, without payment of any compensation, constituted disproportionate interference with their right to the peaceful enjoyment of their possessions.", "2. The Government", "85. The Government maintained that the applicants and/or their ascendants had held a document of title over land which was part of the public forest estate, whereas according to the provisions of the Constitution, land of this kind could not be privately owned. They pointed out that Article 1 of Protocol No. 1 allowed the State to limit the right of property in the public interest.", "In this context, the State could also permanently and fully deprive a person of title in the context of nationalisation or expropriation.", "In this particular case, since plot no. 135 was located within the public forest estate, pursuant to the provisions of the Constitution, the property at issue could not be privately owned. The applicants ’ document of title had therefore had no legal value, all the more so as they could not have had any legitimate expectations. Furthermore, the State could legitimately intervene to protect the environment and forest land and, in this regard, it had a wide margin of appreciation.", "B. The Court ’ s assessment", "86. The Court observes that according to its case-law, Article 1 of Protocol No. 1, which in substance guarantees the right of property, comprises three distinct rules (see, in particular, James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98): the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules are concerned with particular instances of interference with the right to the peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule ( see Bruncrona v. Finland, no. 41673/98, §§ 65-69, 16 November 2004, and Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004-V).", "87. In determining whether there has been a deprivation of possessions within the second rule of Article 1 of Protocol No. 1, it is necessary not only to consider whether there has been a formal taking or expropriation of property but to look behind the appearances and investigate the realities of the situation complained of. Since the Convention is intended to guarantee rights that are “practical and effective”, it has to be ascertained whether the situation amounted to a de facto expropriation ( see Brumărescu v. Romania [GC], no. 28342/95, § 76, ECHR 1999 ‑ VII; Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 63 and 69 ‑ 74, Series A no. 52; Vasilescu v. Romania, 22 May 1998, §§ 39 ‑ 41, Reports of Judgments and Decisions 1998 ‑ III; and N.A. and Others v. Turkey, no. 37451/97, §§ 37 and 39, ECHR 2005 ‑ X ).", "88. The Court notes that in the present case there has been interference with the applicants ’ right to the peaceful enjoyment of their possessions, which amounts to a “ deprivation ” of property within the meaning of the first paragraph of Article 1 of Protocol No. 1 ( see, mutatis mutandis, Brumărescu, cited above, § 77).", "89. The Court notes firstly that the applicants ’ good faith in taking possession of the property, as regards the part acquired in 1911, is not contested. [7] It is not in dispute that until their document of title was declared void and ownership was transferred to the Treasury, the applicants had been the rightful owners of the property, with all the attendant consequences under domestic law, and that they had further enjoyed “ legal certainty ” as to the validity of the title entered in the land register, which constitutes undisputable evidence of ownership.", "90. The Court further observes that the applicants were deprived of their property by a court decision. Despite the applicants ’ objections as to the nature of the land, the domestic courts eventually declared their document of title void pursuant to the provisions of the Constitution, relying on surveys which included the land as part of the forest estate. Having regard to the reasons given by the domestic courts, the Court considers that the purpose of depriving the applicants of their property, namely to protect nature and forests, falls within the scope of public interest within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 (see, mutatis mutandis, Lazaridi v. Greece, no. 31282/04, § 34, 13 July 2006, and Ansay v. Turkey (dec .), no. 49908/99, 2 March 2006). It notes in this regard that while none of the Articles of the Convention is specifically designed to provide general protection of the environment as such ( see Kyrtatos v. Greece, no. 41666/98, § 52, ECHR 2003 ‑ VI ), in today ’ s society the protection of the environment is an increasingly important consideration ( see Fredin v. Sweden ( no. 1), 18 February 1991, § 48, Series A no. 192 ). The Court notes that it has on various occasions dealt with questions relating to environmental protection and stressed the importance of this issue (see, for example, Taşkın and Others v. Turkey, no. 46117/99, ECHR 2004 ‑ X; Moreno Gómez v. Spain, no. 4143/02, ECHR 2004 ‑ X; Fadeyeva v. Russia, no. 55723/00, ECHR 2005 ‑ IV; and Giacomelli v. Italy, no. 59909/00, ECHR 2006 ‑ XII ). The protection of nature and forests, and, more generally, the environment, is a cause whose defence arouses the constant and sustained interest of the public, and consequently the public authorities. Financial imperatives and even certain fundamental rights, such as ownership, should not be afforded priority over environmental protection considerations, in particular when the State has legislated in this regard ( see Hamer v. Belgium, no. 21861/03, § 79, ECHR 2007 ‑ V ).", "91. However, in the case of deprivation of property, compensation terms under the relevant domestic legislation are material to the assessment of whether the contested measure observes the requisite fair balance and, notably, whether it does not impose a disproportionate burden on the applicants. The Court has already held in this connection that the taking of property without payment of an amount reasonably related to its value normally constitutes a disproportionate interference, and a total lack of compensation can be considered justifiable under Article 1 of Protocol No. 1 only in exceptional circumstances ( see Nastou v. Greece ( no. 2), no. 16163/02, § 33, 15 July 2005; Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 111, ECHR 2005 ‑ VI; The Holy Monasteries v. Greece, 9 December 1994, § 71, Series A no. 301 ‑ A; and N.A. and Others v. Turkey, cited above, § 41 ). In the instant case, the applicants received no compensation for the transfer of their property to the Treasury pursuant to Article 169 § 2 of the Constitution. The Court notes that the Government have not relied on any exceptional circumstance in order to justify the total lack of compensation.", "92. Consequently, the Court considers that the failure to award the applicants any compensation upsets, to their detriment, the fair balance that should be struck between the demands of the general interest of the community and the requirement of the protection of individual rights.", "93. There has therefore been a violation of Article 1 of Protocol No. 1.", "..." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant company is a legal entity registered in Vilnius.", "6. In 1994 the Government adopted a resolution establishing the Development Plan for the Curonian Spit National Park ( hereafter “the development plan” ). The main objectives of the development plan were published in the Official Gazette ( Valstybės žinios ) ( see paragraph 53 below). The development plan explicitly indicated that the buildings with a former military objective, situated in the adjacent dunes, had to be removed ( nukeliami ) and the natural environment fully restored.", "7. In 1998 the Government decided to privatise the former Soviet (later the – Russian Federation) military buildings, without the land, in Juodkrantė, the Neringa Municipality, within the Curonian Spit National Park. There were two military barracks, a canteen, a store house and two sheds.", "8. In 1999 the State Property Fund carried out a public auction, at which the applicant company was the only participant and purchased the buildings for 226,000 Lithuanian litai (LTL, approximately 65,454 euros (EUR)). The purchase agreement, which was concluded in February 2000, indicated that the applicant company had to lease the land assigned to the buildings ( įsipareigoja išsinuomoti šiam objektui priskirtą žemės sklypą ).", "A. Circumstances surrounding the detailed plan of the area", "9. In September 2001 the Neringa Municipality decided to prepare a detailed plan of the area where the buildings were sited. The purpose of the plan was to designate a plot of land near the existing buildings, providing an opportunity to renovate the buildings or to build new recreational buildings.", "10. In August 2002 the authorities in charge of the Curonian Spit National Park decided that renovation of the buildings had to meet the requirements applicable to the whole area. The buildings had to be integrated in the landscape; as they were sited in the forest, the purpose of the use of the land had to be changed.", "11. In September 2002 the Klaipėda Region department of environmental protection decided that the purpose of the use of the land, on account of its specific location, could only be changed if the projects were approved by those managing protected areas or with the approval of the Ministry of Environment. In August 2003 the same department rejected a detailed plan submitted by the applicant company, seeking to amend the purpose of the land so that it became a recreational area.", "12. The applicant company instituted court proceedings, urging the court to declare unlawful the authorities ’ rejection of the detailed plan proposed by the applicant company ( see paragraph 11 above) and to oblige them to accept it.", "13. The applicant company ’ s claim was dismissed on 23 October 2003 by the Klaipėda Regional Administrative Court and on 27 January 2004 by the Supreme Administrative Court. The courts held that in accordance with domestic law there was no possibility to build new recreational buildings in the Curonian Spit National Park (see paragraph 53 below). The courts thus held that the applicant company ’ s detailed plan was contrary to the development plan.", "B. Circumstances surrounding the land assigned to the buildings", "14. In January 2004 the applicant company asked the authorities to conclude a lease agreement in respect of the land assigned to the buildings. The authorities replied that the applicant company had to provide a plan of the land. However, as there was no detailed plan of the area, the land could not be leased. The applicant company was also obliged to pay the land tax.", "15. The applicant company instituted court proceedings and complained that it had to pay the land tax but the Vilnius Regional Administrative Court on 30 April 2004 and the Supreme Administrative Court on 17 September 2004 held that it had to pay the land tax because it had been using the land in question.", "C. The procedure to include the land assigned to the applicant company ’ s buildings in the recreational zone", "16. In February 2006 the applicant company asked the authorities to include the land in question in the landscape management recreational zone. In March, the Protected Areas Service replied that the development plan of 1994 indicated that the buildings had to be demolished. It said that it would formulate provisions in the explanatory report regarding the possibility to compensate the applicant company for the buildings. In this case, the applicant company would be able to acquire other buildings owned by the authorities.", "17. In November 2011 the applicant company proposed that the land under its buildings be included in the recreational zone and that a compensation mechanism be determined for the buildings if the area had to be redeveloped. In December 2011 the authorities replied that the redevelopment of the area had been determined in 1994 and that they could not agree with the applicant company ’ s proposals. The authorities indicated that any decision regarding the applicant company ’ s buildings had to be taken by the Government.", "18. In January 2012 the applicant company complained about the refusal of its proposal ( see paragraph 17 above) to the State Territorial Planning and Construction Inspectorate. It claimed that it had legitimate expectations that it would be able to use its possessions in an appropriate manner, namely that it would be allowed to reconstruct the buildings without increasing their height. In February 2012 the Inspectorate replied that when approving the Curonian Spit National Park Management Plan (hereafter “the Management Plan”), a decision on a compensation mechanism and time-limits would also have to be taken.", "19. In April 2012 the applicant company examined a draft of the Management Plan and found that its buildings were indicated as objects to be redeveloped ( rekultivuojami objektai ) but that that decision had not been explained. The applicant company asked the authorities to amend the draft so that it included the issue of compensation for the buildings or included the buildings in the landscape management recreational zone.", "20. In May 2012 the Ministry of Environment and the Protected Areas Service replied that they had set up a working group to determine a compensation mechanism for the property that had to be expropriated.", "21. In May 2012 the applicant company asked the authorities to inform it about the conclusions of the working group. In June 2012 the authorities replied that the working group had to be set up before 29 June 2012.", "22. The working group was set on 20 July 2012 and had to provide its proposals before 19 November 2012.", "D. The procedure regarding planning permission for major repair work of the canteen and subsequent court proceedings", "23. In February 2010 the applicant company asked the authorities for planning permission to carry out major renovation work on one of the buildings, namely the canteen. The authorities replied that they could not issue planning permission and that the applicant company had to provide them with the lease agreement in respect of the land assigned to the buildings. Only after such agreement was provided, the authorities would examine the applicant company ’ s request.", "24. The applicant company lodged a complaint with the domestic courts against the authorities ’ refusal to issue planning permission for renovation of the canteen. On 30 August 2010 the Klaipėda Regional Administrative Court allowed the claim, holding that the applicant company had been paying the land tax, which was evidence that it had been using the plot of land.", "25. On 9 May 2011 the Supreme Administrative Court allowed an appeal lodged by the authorities. It held that the applicant company had not provided any information proving that it was the owner of the plot of land, so the authorities had not been obliged to issue planning permission for renovation of the canteen. The applicant company applied for the reopening of the proceedings. Its request was refused by the Supreme Administrative Court in January 2012.", "E. Approval of the Management Plan and court proceedings regarding the Management Plan", "26. On 6 June 2012 the Government approved the Management Plan by Resolution No. 702 (see paragraph 54 below) and asked the Ministry of Environment to set up a working group to assess the legal grounds for expropriating property for public needs ( dėl darbo grupės teisinėms prielaidoms paimti turtą visuomenės poreikiams sudarymo ). The working group was set up on 20 July 2012 and its proposals were to be submitted by 19 November 2012. The Management Plan included the reserve land in Juodkrantė, indicating that its purpose was to compensate for the possible losses incurred by lawful owners of buildings that had been earmarked for demolition.", "27. On 4 July 2012 the applicant company lodged a complaint with the Vilnius Regional Administrative Court, urging it to revoke the part of the Government Resolution where it had been decided that the buildings at 21 Miško street (the location of the applicant company ’ s buildings) would be demolished and to order the authorities to amend the Management Plan. The applicant company argued that the issue of compensation and the time-limits for the demolition of property had not even been mentioned in the Management Plan. It also argued that clear indications on compensation for the buildings and for the land tax were needed.", "28. On 23 July 2012 the Vilnius Regional Administrative Court refused to examine the claim. The reasons were provided in two short paragraphs, which mainly reiterated the provisions of domestic law (see paragraph 62 below). The applicant company had complained about the lawfulness of the Government Resolution. The court considered that issues as to whether acts adopted by the Government were in accordance with the Constitution or laws fell within the jurisdiction of the Constitutional Court. It stated that it was not within the area of competence of the administrative courts to examine the lawfulness of the activities of, inter alia, the Government (as a collegial institution). As regards an amendment to the Management Plan, the court stated that that was linked to the first part of the claim and thus would not have any legal consequences on the applicant company.", "29. In August 2012 the applicant company lodged a separate complaint and asked the Supreme Administrative Court to examine the case on the merits. It claimed that the first-instance court had misinterpreted the provisions of the Law on Administrative Proceedings, and thus limited the applicant company ’ s right of access to a court. The applicant company thought that when the Government had approved the Management Plan, it had been implementing the function of public administration, and that that document had had a direct influence on the applicant company ’ s rights and obligations, and was thus an individual legal act that had to be examined before the administrative courts. On 28 November 2012 the Supreme Administrative Court upheld the decision of the Vilnius Regional Administrative Court of 23 July 2012. It held that the applicant company had questioned the lawfulness of both the Management Plan and the development plan. The Supreme Administrative Court held that when the Government had approved the Management Plan, it had been carrying out the function of State power. Moreover, the court had already ruled on the issue of the attribution of the Management Plan to the jurisdiction of the administrative courts and had decided that it had not been attributable to those courts (see paragraph 79 below). The court indicated that a legal act could consist of textual and graphic information (tables, drawings, schemes, plans, symbols, emblems). The Constitutional Court had already held that all parts of a legal act were interrelated and were of equal legal effect (see paragraph 77 below). The court further held that the present case was in substance identical to cases already examined by it, and that there were no grounds to reach a different conclusion on the nature of the Management Plan. The court explained that the applicant company could only raise the issue of the lawfulness of the Government Resolution in the context of an individual case regarding violation of its specific rights (by complaining against an individual legal act, by which the Government Resolution and the decisions of the Management Plan would be implemented). It could then ask the court examining that case to refer the issue to the Constitutional Court. The applicant company ’ s request to organise the procedure to amend the Management Plan so that it included the land in question in the landscape management recreational zone was dismissed because the applicant company had failed to address the authorities or the courts after the approval of the Management Plan.", "30. The applicant company then applied for the reopening of the proceedings. On 3 April 2013 the Supreme Administrative Court rejected its application on the grounds that the applicant company ’ s claims had been dismissed for being outside the administrative court ’ s jurisdiction and the proceedings could only be reopened if an administrative case had been examined on the merits.", "F. The procedure regarding planning permission for major repair work of the applicant company ’ s buildings and subsequent court proceedings", "31. In October 2011 the applicant company asked the authorities which documents were necessary for the proposed renovation work. In November 2011 the authorities replied that it was not clear from the applicant company ’ s request which building ( “ specific, not complex or non ‑ specific ” ( ypatingas, nesudėtingas ar neypatingas ), as defined in the domestic law ) it was aiming to renovate. The applicant company had indicated major repair work. The authorities stated that a detailed plan was not necessary, the location of the building to be renovated was not important and a document proving ownership of the land (see paragraph 25 above) was not necessary either.", "32. In May 2013 the Neringa Municipality inspected the applicant company ’ s buildings and held that they were in a state of disrepair. It requested that the applicant company appoint a person responsible for the maintenance of the buildings before 3 June 2013, remove the damaged parts of the buildings before 1 July 2013 and renovate the buildings before 31 May 2014.", "33. On 30 December 2013 the applicant company asked the authority in charge of the Curonian Spit National Park to issue planning permission to carry out major repair work in order to renovate the buildings. The same month the applicant company received a response that permission could not be issued because it would be contrary to the Management Plan of 6 June 2012 (see paragraph 26 above ).", "34. The applicant company instituted court proceedings before the Vilnius Regional Administrative Court against the decision of the authority in charge of the Curonian Spit National Park of 30 December 2013 (see paragraph 33 above). It urged the court to order the authority to issue the planning permission required for it to carry out major repair work and to award it EUR 48,489 in respect of pecuniary damage for the land tax and property tax it had paid between 2000 and 2014.", "35. In the course of proceedings the applicant company submitted a draft friendly settlement agreement to be concluded by the State, proposing that the State compensate it for the removal of the buildings by providing the applicant company with lease rights to State -owned land measuring 0.7685 hectares in Neringa with construction rights. The State representative refused to agree to the proposal because it was in breach of domestic law (see paragraph 63 below).", "36. On 14 November 2016 the Vilnius Regional Administrative Court held that the refusal of the authority in charge of the Curonian Spit National Park to issue the planning permission required to carry out major repair work was in accordance with the relevant domestic law. The applicant company also asked the court to refer the question of whether the Management Plan was in accordance with the Constitution to the Constitutional Court. The court acknowledged that the authority ’ s decision had lacked a seal of approval but held that that shortcoming could not be regarded as grounds to overrule the decision. The court also held that the authority had not acted unlawfully, so there were no grounds for awarding the applicant company pecuniary damages. Moreover, domestic law did not require that the Management Plan contain a compensation mechanism for the buildings to be “ removed ”. However, the Management Plan in question indicated that an area in Juodkrantė had been designated to compensate for the losses incurred by the lawful owners of the buildings to be removed. Thus the Management Plan provided for the opportunity to compensate for possible losses. As regards the referral to the Constitutional Court, the court held that the applicant company had mistakenly stated that the decision to remove the buildings had only been indicated in the Management Plan. The court stated that it was a commonly known fact that the applicant company ’ s buildings had been earmarked for removal at the time the purchase agreement had been concluded, and the applicant company, as a diligent legal entity, should have assessed the legal status of the buildings and the restrictions on their use. The legitimate expectations of the applicant company had not been breached as it had not proved the need to refer the issue to the Constitutional Court. The court also pointed out that the buildings had not been taken from the applicant company for the needs of society (see paragraph 45 below). However, when using them the applicant company had to follow the legal regulations, which established that construction in the area in question was not allowed and that it was attempting to protect its rights in the wrong way. The decision that had had legal consequences for the applicant company had been the decision to privatise the buildings and to sell them to the applicant company.", "37. In December 2016 the applicant company appealed and asked the Supreme Administrative Court to refer the matter to the Constitutional Court; to overrule the decision of the authority in charge of the Curonian Spit National Park of 30 December 2013; to order the authority to issue the applicant company with the planning permission required to carry out major repair work and to award it EUR 48,489 in respect of pecuniary damage. The proceedings are still ongoing.", "G. Amendment of the Management Plan and related court proceedings", "38. On 15 April 2015 the Government adopted Resolution No. 389 approving the start of the amendment of the Management Plan. One of the purposes set out in the resolution was to combine the interests of the State and municipalities with those of the relevant natural and legal persons.", "39. In June 2016 the applicant company submitted its proposals, namely that the area in which its buildings were located be included in the landscape management zone and that the buildings there should not exceed one storey with an attic. If the proposal to redevelop the land were maintained, the applicant company wanted a clear decision on time-limits for redevelopment and a compensation mechanism.", "40. On 20 June 2016 the Protected Areas Service indicated that the land on which the applicant company ’ s buildings were sited was not affected by the amendment of the Management Plan. It also indicated that the reply could be appealed against to the Supreme Administrative Disputes Commission (“the commission”) or to the Vilnius Regional Administrative Court in one month from its reception.", "41. In July 2016 the applicant company lodged a complaint with the commission about the reply of the Protected Areas Service ( see paragraph 40 above). The applicant company stated that it had paid EUR 41,887 in land tax and EUR 22,795 in property tax between 2000 and 2014. It also stated that although the Management Plan had entered into force in 2012, it had not been proven that removing the buildings was necessary in the interests of society. There had also been no indications about the exact time-limits and procedure for the removal of the buildings. The applicant company thus asked the commission to overrule the decision of the Protected Areas Service of 20 June 2016 and to order it to amend the Management Plan in accordance with the applicant company ’ s proposals.", "42. In August 2016 the commission closed the case, stating that the issue was not within its competence. The applicant company appealed against that decision, claiming that it had been formal and lacked reasoning, and that the commission had ignored the fact that the Protected Areas Service ’ s reply of 20 June 2016 had indicated that it was amenable to appeal before the administrative courts or the commission (see paragraph 40 above).", "43. On 15 December 2016 the Vilnius Regional Administrative Court dismissed the applicant company ’ s appeal. It held that the applicant company had been represented by professional lawyers and the mere fact that the Protected Areas Service had erroneously indicated that its decisions were amenable to appeal did not discharge the applicant company of the obligation to follow the appeal procedure as laid down in domestic law (see paragraph 50 below). The court held that the applicant company had to address the State Territorial Planning and Construction Inspectorate with its complaint.", "44. In January 2017 the applicant company appealed before the Supreme Administrative Court. The proceedings are still ongoing." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Constitutional, statutory and substatutory provisions", "1. Constitutional provisions", "45. Article 23 reads:", "“Property shall be inviolable.", "The rights of ownership shall be protected by law.", "Property may be taken only for the needs of society according to the procedure established by law and shall be justly compensated for.”", "46. Relevant part of Article 30 reads:", "“A person whose constitutional rights or freedoms are violated shall have the right to apply to a court.", "[...]”", "47. Relevant part of Article 47 reads:", "“The subsurface, as well as the internal waters, forests, parks, roads, and historical, archaeological, and cultural objects of state importance, shall belong by right of exclusive ownership to the Republic of Lithuania.", "[ ... ]”", "48. Article 54 reads:", "“The State shall take care of the protection of the natural environment, wildlife and plants, individual objects of nature, and areas of particular value, and shall supervise the sustainable use of natural resources, as well as their restoration and increase.", "The destruction of land and subsurface, the pollution of water and air, radioactive impact on the environment, as well as the depletion of wildlife and plants, shall be prohibited by law. ”", "2. Territorial Planning legislation, in particular on Curonian Spit", "49. On 23 April 1991 the Supreme Council adopted resolution no. I ‑ 1244, establishing the Curonian Spit National Park, designated to protect the most valuable landscape and ethno - cultural heritage.", "50. Article 3 § 2 of the Law on Territorial Planning provides that when identifying the specific purposes of land, the rights and interests of owners of land and other immovable property have to be taken into account. Article 37 § 2 of the Law on Territorial Planning provides that decisions of a planning authority are amenable to appeal within ten working days to the relevant supervisory territorial planning authority.", "51. Article 13 § 2 of the Law on Protected Areas proscribes the carrying out of any activity that could harm the protected areas and buildings sited thereon, as well as the recreational resources in the State parks. It also proscribes the carrying out of construction work in areas that are not indicated in the development plans, except in areas where there are remains of former farmsteads. Article 28 § 6 of the Law on Protected Areas provides that the Government will approve the demarcation plans of regional parks and State reserves and/or their zones; the management plans of the protected areas are approved by the Government or by bodies authorised to do so by the Government.", "52. Article 6 § 1 (2) of the Law on Land provides that the coastal zone (including the Curonian Spit National Park) is exclusively owned by the State.", "53. Government Resolution No. 1269 of 19 December 1994 established the Development Plan for the Curonian Spit National Park ( Dėl Kuršių nerijos nacionalinio parko planavimo schemos (generalinio plano)) and provided that decisions as to ownership and use of former military buildings of the Russian Federation in Juodkrantė would be made by the Government (Point 12). The main statements of the development plan were published in the Official Gazette. The whole development plan was not published as it consisted of 1,400 pages and it was technically impossible to publish it in the Official Gazette (see paragraph 69 below). The development plan indicated that former military buildings situated in the dunes had to be removed ( nukeliami ) and the natural environment had to be fully restored.", "54. Government Resolution No. 702 of 6 June 2012 on the Curonian Spit National Park Management Plan ( Dėl Kuršių nerijos nationalinio parko tvarkymo plano patvirtinimo ), which revoked the Government Resolution No. 1269 of 1994, provided that an area of land in Juodkrantė would be designated as a “reserve territory”. The purpose of that area would be to compensate for possible losses by lawful owners of buildings that had to be demolished in order to protect public interest and to arrange damaged areas (Point 9.4.2.17). The applicant company ’ s buildings remained indicated as to be demolished in the graphic scheme of the Resolution.", "3. Law on Construction", "55. At the material time, Article 2 § 20 provided that major repair work to a building was a form of construction, since it was aimed at renovating the main structure without changing its external measurements.", "56. At the material time, Article 6 § 1 (2) provided that when constructing or maintaining a building, other legislation had to be taken into account, including laws regulating the use of protected areas.", "57. Article 40 §§ 4 and 5 and Article 41 § 1 require users of a building to organise and/or conduct technical maintenance of that building; to repair, or demolish the building if it is dangerous to people ’ s lives or health or to the environment; and to appoint a person responsible for the maintenance of the building.", "4. Legislation on referral of the issue to the Constitutional Court", "58. According to Article 102 § 1 of the Constitution and Article 63 § 3 of the Law on the Constitutional Court, the Constitutional Court shall decide whether the laws and other acts of the Seimas are in conflict with the Constitution, and whether acts adopted by the Government are in conflict with the Constitution or laws (also Article 105 §§ 1 and 2 of the Constitution).", "59. Article 107 § 1 of the Constitution provides that a law (or part thereof) or another act (or part thereof) of the Seimas, an act (or part thereof) of the Government may not be applied as from the day of the official publication of the decision of the Constitutional Court that the legislation in question (or part thereof) is in conflict with the Constitution.", "60. The courts have the right to apply to the Constitutional Court concerning the conformity of acts of the Government with the Constitution and laws (Article 106 § 3 of the Constitution and Article 65 § 3 of the Constitutional Court). Judges may not apply any laws that are in conflict with the Constitution. If there are grounds to believe that a law or another legal act that should be applied in a concrete case is in conflict with the Constitution, the judge shall suspend consideration of the case and apply to the Constitutional Court, requesting that it decide whether the law or legal act in question is in compliance with the Constitution (Article 110 §§ 1 and 2 of the Constitution and Article 67 § 1 of the Law on the Constitutional Court).", "61. Article 4 § 2 of the Law on Administrative Proceedings provides that if there are grounds to believe that a certain law or other applicable legislation might be contrary to the Constitution, the court must suspend the proceedings and refer the matter to the Constitutional Court.", "62. At the material time, Article 16 § 1 of the Law on Administrative Proceedings provided that the administrative courts were not competent to hear cases that concerned the area of competence of the Constitutional Court, the civil courts or other specialised courts. Article 16 § 2 provided that it was not within the area of competence of the administrative courts to examine the activities of, among other institutions, the Government (as a collegial institution) (see also paragraph 75 below).", "5. Civil Code", "63. The parties cannot, by their agreement, change, restrict or annul the validity and application of the imperative legal norms, despite the law – national or international – that sets those norms (Article 6.157 § 1).", "64. Damage caused by unlawful acts of institutions of public authority must be compensated by the State from the means of the State budget, irrespective of the fault of a concrete public servant or other employee of public authority institutions. Damage caused by unlawful actions of municipal authority institutions must be redressed by the municipality from its own budget, irrespective of its employee ’ s fault. Civil liability of the state or municipality, subject to this Article, shall arise where employees of public authority institutions fail to act in the manner prescribed by law for these institutions and their employees (Article 6.271 §§ 1 and 4).", "6. Other pertinent legislation", "65. Article 9 § 5 of the Law on Land provides that State land may be leased by public auction to the person who offers the largest lease payment.", "66. Article 37 § 2(1) of the Law on Administrative Proceedings provides that a claim will not be accepted unless it is subject to examination before the administrative courts.", "67. Article 52 1 § 1 of the Law on Administrative Proceedings provides that a friendly settlement agreement has to be in accordance with the law, in the interests of the public, and in compliance with the rights and interests of third parties. Article 52 1 § 3 provides that the court will not approve a friendly settlement agreement if it is contrary to the requirements set out in Article 52 1 § 1.", "B. Relevant domestic case-law", "1. Case-law of the Constitutional Court", "(a) On the Curonian Spit National Park, protected areas and property", "68. On 14 March 2006 the Constitutional Court held that taking into account the importance of internal waters, forests, parks of national significance and the obligation to preserve them for future generations, the State was obliged by the Constitution to take care of such objects and to preserve them.", "69. On 27 June 2007 the Constitutional Court gave a ruling on publishing the development plan for the Curonian Spit National Park, adopted by the Government Resolution No. 1269 of 19 December 1994. The Constitutional Court held:", "“By a letter of 21 June 1999 the President and the Secretary General of the Lithuanian National Commission for UNESCO proposed to include the Curonian Spit on the World Heritage List (up to then, it had been included on the Tentative World Heritage List). On 29 November 2000 the Curonian Spit was included on the UNESCO World Heritage List, subject to the following criterion: “The Curonian Spit is an outstanding example of a landscape of sand dunes that is under constant threat from natural forces (wind and tide). After disastrous human interventions that menaced its survival the Spit was reclaimed by massive protection and stabilization works begun in the 19th century and still continuing to the present day.”", "...", "...[ T ] he State of Lithuania has always treated and treats the Curonian Spit as a unique landscape created by nature and man – an area which should be protected and in respect of which specific legal protection has to be put in place; this is a universally known fact.", "... The formation of the landscape in the Curonian Spit is still taking place; the social role of modern society, which is related to the traditional lifestyle and in which the evolutionary process is still in progress, is still active. The Curonian Spit reflects the material changes which have been taking place over the course of many decades and which are closely related to the interaction of natural forces and human beings. In the Curonian Spit, one can still see the remains of landscape where evolutionary processes have ended. There is the ethnographic heritage of the Curonian tribe, which lived in the Curonian Spit for a long time (and which is now extinct). In the relevant documents, the following examples of cultural heritage in the Curonian Spit have been noted: fishermen ’ s settlements where the interaction of man and nature is, from an ethno-cultural, historical and aesthetic point of view, of exceptional universal value; a wealth of unique works of architecture which, from an artistic and scientific point of view, were of exceptional value; and archaeological sites which are especially significant, owing to villages being swallowed up by moving sand. The particular importance of the Curonian Spit is also reflected by natural and cultural heritage, which is woven together in a picturesque manner and which is related not only to material or spiritual aspects, but also to the experience gained by every generation of the local people. This helps to rebuild the lost natural ecosystems of the Curonian Spit.", "...", "... The legal instruments of the Republic of Lithuania ... enshrine the fundamental provision that the Curonian Spit National Park will be managed in accordance with the development plan... for the Curonian Spit National Park, approved by the Government.", "Thus, no decisions relating to the management of the territory of the Curonian Spit National Park... can be adopted without taking account of the scheme approved by the Government, and decisions cannot be in conflict with the provisions of the scheme...", "Otherwise, not only would the identity and integrity of the Curonian Spit as a unique landscape created by nature and man be violated, whereas it should be protected, but one would also violate... inter alia, paragraph 1 of Article 54 of the Constitution providing that the State must take care of the protection of the natural environment, wildlife and plants, individual natural objects and areas of particular value, and must supervise the sustainable use of natural resources, their restoration and development; and paragraph 3 of Article 53 providing that the State and each person must protect the environment from harmful influences. The international obligations of the Republic of Lithuania would also clearly be violated.", "The technical possibilities of preparing digital versions of the drawings provided in the development plan of 19 December 1994 only appeared in 1996-98 ...", "All those who wanted to familiarise themselves with the development plan could do so, in fact many people had applied to the Protected Areas Service and copies of the development plan had been prepared free of charge ...", "Moreover, when issuing the conditions of the detailed plan, references had always been made to the development plan, and there was no information that there had been any legal disputes regarding the accessibility of the plan.", "...", "If a certain part of a legal act is not published in an official journal, it has to be clear from the part that had been published that other parts have not been published; it also has to be clear when people can familiarise themselves with the unpublished part; the accessibility of the unpublished part has to be ensured.", "...", "The fact that the development plan has not been published as a whole in the official journal does not give grounds to assert that it has not been published at all or that it has been published unofficially, and that access to it has not been ensured ( Vien tai, kad Vyriausybės 1994 m. gruodžio 19 d. nutarimu Nr. 1269 „ Dėl Kuršių nerijos nacionalinio parko planavimo schemos ( generalinio plano )“ patvirtinta Kuršių nerijos nacionalinio parko planavimo schema ( generalinis planas ) nebuvo visa paskelbta „ Valstybės žiniose “, savaime neduoda pagrindo teigti, kad Schema buvo „ nepaskelbta “ arba „ paskelbta “ neviešai, neoficialiai, kad jos prieinamumas teisės subjektams nebuvo užtikrintas ).”", "70. On 5 July 2007 the Constitutional Court held that the notion of areas of particular value, established in Article 54 § 1 of the Constitution, presupposed that certain areas of the territory of Lithuania not only could but also had to be treated as areas of particular value. In the context of the case at issue, the Constitutional Court held that certain areas were referred to as protected areas in domestic law, including national parks and reserves. The national parks and reserves thus were territories of utmost importance, and the legislative power could decide on specific regime of protection and use of such areas.", "71. The Constitutional Court stated that Article 23 of the Constitution set out the essence of the right of protection of property (rulings of 27 May 2002, 30 October 2008 and 10 April 2009). Under the Constitution an owner had the right to carry out any actions in his property except for those prohibited by law (rulings of 20 May 2008, 30 October 2008, 31 January 2011 and 14 March 2014 ).", "(b) On access to a court", "72. The Constitutional Court has ruled numerous times on the right of access to a court. It has stated that access to a court was the most reliable way to defend one ’ s rights (ruling of 14 February 1994). The implementation of the said right was preconditioned by the person ’ s perception that his or her rights had been breached (ruling of 1 October 1997). Denial of possibilities to challenge a certain decision before a court was incompatible with the concept of the rule of law and the constitutional doctrine of protection of one ’ s rights (rulings of 4 March 1999, 2 July 2002, 4 March 2003, 17 August 2004, 7 February 2005 and 16 April 2014 ); in this sense, under the Constitution, the right of access to a court was absolute (ruling of 30 June 2000); it could not be artificially limited or made extremely difficult to implement (ruling of 13 December 2004). If this constitutional right was not ensured, the general principle of ubi ius, ibi remedium would be breached (decision of 8 August 2006). Violated constitutional rights could be defended in court regardless of whether they were mentioned in a statute or substatutory legislation (ruling of 23 June 1999). Individuals ’ rights had to be protected in a practical and effective manner from unlawful actions on the part of private individuals as well as State authorities (rulings of 8 May 2000, 29 December 2004).", "73. The Constitutional Court held that the constitutional right of access to a court could not be interpreted as allowing a person to defend his or her rights in court only directly (ruling of 16 January 2006).", "74. In its ruling of 13 May 2010, the Constitutional Court held that legal regulation on access to a court had to comply with the constitutional requirement of legal certainty; the legislature had to clearly establish which court a person had to apply to and how, in order to implement his or her right of access to a court ( rulings of 13 May 2010 and 28 June 2016).", "(c) On referral of matters to the Constitutional Court", "75. The Constitutional Court held that if there were doubts as to whether the law applicable to a specific case was in compliance with the Constitution, the examination of the case had to be suspended and the court had to refer the matter to the Constitutional Court, otherwise it would risk adopting an unjust decision (rulings of 16 January 2006 and 24 October 2007). Administrative courts must not examine cases that were within the competence of the Constitutional Court. The subject of the argument before the administrative courts thus could not be an activity of the Government by which State power was implemented. However, administrative courts could investigate the activities of the Government if such investigation was necessary to confirm doubts about compliance of the above-mentioned acts with the Constitution and laws (ruling of 13 May 2010).", "76. The Constitutional Court held that the requirement to justify decisions was also applicable to the courts ’ decisions on whether to refer an issue to the Constitutional Court (rulings of 28 March 2006, 21 September 2006, 5 July 2007 and 28 June 2016).", "(d) On legal acts and their constituent parts", "77. In its rulings of 9 July 1999 and 29 October 2003 the Constitutional Court held that all parts of a legal normative act (including its appendices) constituted a single legal act and had equal legal consequences. Appendices could not be separated from a legal act because if they were changed, the contents of the legal act also changed. The graphic part of a legal act has legal consequences equal to those of the textual part, with which it constitutes a single legal act (ruling of 27 June 2007).", "2. Other pertinent case-law", "78. In a case concerning holidays and working time of medical workers, the Supreme Administrative Court held that administrative courts could examine cases concerning damages caused by the result of an activity (omission) of the Government, which had resulted or could result into violation of a person ’ s rights or freedoms. Article 16 § 2 of the Law on Administrative Proceedings had not prevented a person from lodging a complaint before the court if he or she had thought that his or her rights had been breached by the activity of the Government (decision of 20 July 2012, no. AS-444-486-12).", "79. In two cases concerning a refusal to examine the complaint about the annulment of part of the Management Plan about the legalisation of boatel buildings, the Supreme Administrative Court held that one of the Government ’ s functions was the approval of borders of regional parks and State reserves, as well as approval of management plans of protected areas. Approving the Management Plan the Government implemented the State power, and the lawfulness of such act had to be decided by the Constitutional Court. Although the applicant claimed that the Management Plan was an individual act, the court held that management plans of protected areas were normative and not individual legal acts (decisions of 28 September 2012, nos. AS-822-630/2012 and AS-552-631/2012).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION", "80. The applicant company complained of an unlawful and unreasonable restriction of its property rights as a result of the authorities ’ refusal to issue documents allowing it to reconstruct or carry out major repair work in respect of its buildings and their refusal to adopt a clear decision on the time-limits and compensation for the buildings that were to be demolished. The applicant company relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. Admissibility", "1. Exhaustion of domestic remedies", "(a) As to the exhaustion of domestic remedies in accordance with the Civil Code", "( i ) The parties ’ submissions", "81. The Government argued that the applicant company had failed to exhaust effective domestic remedies. The applicant company could have lodged a claim with the domestic courts under Article 6.271 of the Civil Code, claiming damages for the allegedly unlawful actions by the authorities, namely by including the buildings in the list of objects to be privatised. They could also have asked the courts to rescind the purchase agreement in respect of the buildings. The Government referred to the decision of the Vilnius Regional Administrative Court, indicating that the applicant company had chosen the wrong remedy to protect its rights ( see paragraph 36 above ). The actions of the applicant company, namely its efforts to acquire planning permission for reconstruction of or major repair work on the buildings, to get the authorities to agree to its proposed changes to the detailed plan and to include the area in the landscape management recreational zone had been inappropriate as they had not been in compliance with domestic law.", "82. The applicant company maintained that in order to contest the purchase agreement, it would have had to also complain about the Government Resolution, by which it had been decided to include the buildings in question in the list of objects to be privatised, which was within the jurisdiction of the Constitutional Court. Moreover, by contesting the purchase agreement, the applicant company would be forced to admit that the privatisation of the buildings had been unlawful, thus it claimed that that remedy would be ineffective.", "(ii ) The Court ’ s assessment", "83. The Court reiterates that the rule on exhaustion of domestic remedies under Article 35 § 1 of the Convention requires that complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014).", "84. With regard to the case in issue, the Court notes that the central tenet of the applicant company ’ s complaint is the allegedly unlawful and unjustified interference with its property rights on account of the authorities ’ refusal to allow it to reconstruct or carry out major repair work on its buildings and their failure to set time-limits and establish a compensation mechanism for the demolition of the buildings. In respect of that complaint, the applicant company pursued a number of available legal remedies before the administrative and judicial authorities (see paragraphs 12, 16 - 19, 23 - 24, 31, 33 - 34, 27, 39 and 41 above). It also applied for compensation for the pecuniary damage it had sustained as a result of the fact that it had been unable to do anything with the buildings (see paragraph 34 above). The domestic courts never stated that the authorities had acted unlawfully by including the buildings in the list of objects to be privatised and the Court is not convinced that the remedy under Article 6.271 of the Civil Code, referred to by the Government, would have been effective. The Court further observes that the Government refers in this respect to a decision by the Vilnius Regional Administrative Court from 2016 while the application was lodged by the applicant company before the Court in 2014. The Court does not see how the remedy under Article 6.271 of the Civil Code would have been effective at the material time. The Court thus dismisses the Government ’ s objection in this respect.", "(b) As to the exhaustion of domestic remedies in accordance with the Management Plan", "( i ) The parties ’ submissions", "85. The Government argued that as the Management Plan had indicated a reserve area designated to compensate for possible losses incurred by the lawful owners of the buildings that had to be demolished, the applicant company could have asked to participate in a public auction in order to lease the reserve land for the construction work it sought to carry out (see paragraphs 55, 57 and 65 above).", "86. The applicant company claimed that a request to participate in a public auction in order to lease the land in a reserve area would not have been an effective remedy because the reserve area had not been demarcated and the detailed plan necessary to complete the procedure had not been drafted. Moreover, even if the applicant company had been successful in the public auction, it would still not have been compensated for the demolition of its buildings.", "(ii) The Court ’ s assessment", "87. The Court firstly observes that the reserve area referred to by the Government as a possible remedy for the applicant company, has not yet been demarcated and it is very unlikely that it could be included in a public auction. Secondly, the Government has not provided any information to the Court that the public auction has been organised. It is up to the State, and not to the applicant company, to initiate the public auction and the Court does not see how that specific measure could be effective for the purposes of Article 35 § 1 of the Convention. The Court thus dismisses the Government ’ s objection in this respect.", "2. Existence of “possessions”", "(a) The parties ’ submissions", "88. The Government maintained that the applicant company did not have a legitimate expectation to use the property within the meaning of Article 1 of Protocol No. 1, as it could not have expected to be able to use the buildings in issue in the way it had chosen. The applicant company ’ s property rights were limited by the applicable provisions of domestic law, which only allowed it to demolish or resell the buildings in question.", "89. The applicant company argued that it had had a legitimate expectation to reconstruct or repair its buildings, as the authorities had started to prepare a detailed plan in order to allow it to renovate the buildings or to build new recreational buildings (see paragraph 9 above).", "(b) The Court ’ s assessment", "90. The concept of “possessions” referred to in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to the ownership of physical goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision. In each case the issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 (see Depalle v. France [GC], no. 34044/02, § 62, ECHR 2010 ).", "91. The Court observes that there was a legitimate expectation on the part of the applicant company to be able to use the buildings in question (see paragraphs 9 and 10 above) until the demolition took place. It considers that the circumstances of the present case conferred on the applicant company a title to a substantive interest protected by Article 1 of Protocol No. 1. This provision is thus applicable and the Government ’ s objection has to be dismissed.", "3. Conclusion on admissibility", "92. The Court further notes that this part of the applicant company ’ s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "93. The applicant company submitted that the decision to demolish its buildings had been established in the Management Plan of 2012. Had the buildings been earmarked for demolition since 1994, they would have never been included in the list of objects to be privatised and sold in 2000. In 2001-02 the authorities had confirmed that the buildings in question could be reconstructed and the issue of demolition had not been raised. The applicant company claimed that the exact procedure for demolition, the time-limits and the issue of compensation had not been established, which was against the principles of legitimate expectations and proportionality.", "94. The applicant company further stated that its situation amounted to de facto expropriation, because its right to use its property had been completely restricted by the Management Plan. The applicant company could not sell the buildings because no one would buy them, and it was forced to bear responsibility for the buildings and pay taxes on them.", "95. The applicant company also complained that there had never been a prohibition from carrying out major repair work in the area in question. In fact, the Neringa Municipality had inspected the buildings and stated that they had to be repaired. The applicant company claimed that failure to comply with that order would result in administrative or even criminal liability.", "96. The Government argued that the decisions of the authorities (the refusal to grant planning permission for major repair work, refusal to accept the applicant company ’ s proposal to change the detailed plan, and imposing the land tax) had been based on the provisions of domestic law related to the protection of the Curonian Spit National Park, which was subject to particular legal treatment.", "97. The Government also claimed that the decision to demolish the buildings had been taken in 1994, when the development plan had been adopted. The applicant company must therefore have been fully aware that it would have to comply with the development plan and demolish the buildings. Moreover, the Management Plan had not contained any new restrictions with regard to the applicant company ’ s buildings and there had been no uncertainty regarding the legal status of the buildings. The inclusion of the buildings in the list of objects to be privatised had not deprived them of their status as buildings to be demolished.", "98. Lastly, after having purchased the buildings, the applicant company had not maintained and occupied them. The inspection report drawn up by the representative of the Neringa Municipality had merely confirmed that fact. Moreover, the applicant company had never been prohibited from repairing the buildings. That was significantly different from carrying out major repair work, which would have allowed the applicant company to reconstruct them. In fact, the applicant company had paid land tax and property tax which it would not have had to pay if it had demolished the buildings.", "2. The Court ’ s assessment", "(a) General principles", "99. As the Court has stated on a number of occasions, Article 1 of Protocol No. 1 comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, inter alia, to have a measure of control over the use of property in accordance with the general interest. The three rules are not, however, distinct in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property, and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many other authorities, Beyeler v. Italy [GC], no. 33202/96, § 98, ECHR 2000-I, and Sargsyan v. Azerbaijan [GC], no. 40167/06, § 217, ECHR 2015).", "(b) Whether there was an interference", "100. The Court notes that the applicant company was banned from developing its property, situated in the Curonian Spit National Park, which was subject to a specific legal regime and designated for demolition, by virtue of the development plan, which was in force when it acquired the buildings. Subsequently, the Management Plan (see paragraphs 26 and 53 above) and relevant domestic regulations proscribed any construction in the area where the applicant company ’ s buildings were located. In fact, the only legal action the applicant company could take with regard to the buildings was to demolish or resell them. The inability to develop his or her own property constitutes a limitation of the rights normally enjoyed by a property owner (see Matczyński v. Poland, no. 32794/07, § 96, 15 December 2015). The Court is therefore of the view that there has been an interference with the peaceful enjoyment of the applicant company ’ s possessions.", "101. The Court observes that the development plan, the Management Plan and relevant domestic law did not deprive the applicant company of its possessions but rather imposed certain restrictions on the use of those possessions. The applicant company ’ s buildings were designated for demolition in 1994. It cannot be said that the applicant company was deprived of its possessions. Moreover, contrary to its statements, it did not look after the buildings as required by domestic law, which resulted in an inspection (see paragraphs 32 and 57 above) and the requirement to repair the buildings and to remove the parts that were falling down. That cannot be regarded as equivalent to carrying out major repair work (see paragraph 55 above). The Court therefore considers that the applicant company ’ s ownership right with respect to the buildings did not disappear. The restrictions thus may be regarded as measures to control the use of property (see Potomska and Potomski v. Poland, no. 33949/05, § 63, 29 March 2011). However, the applicant company ’ s complaint also relates to the authorities ’ alleged failure to take relevant decisions as regards compensation, time-limits for demolition and refusal to allow the applicant company to develop the property. Having regard to the different facets of the applicant company ’ s complaint, the Court considers that it should examine the situation complained of under the general rule established in the first sentence of the first paragraph of Article 1 of Protocol No. 1 to the Convention ( ibid. ).", "(c ) Whether the interference complied with the conditions set out in Article 1 of Protocol No. 1", "102. In order to comply with Article 1 of Protocol No. 1 to the Convention, it must be shown that the measure constituting the interference was lawful, that it was “in accordance with the general interest”, and that there existed a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Hutten- Czapska v. Poland [GC], no. 35014/97, §§ 163-168, ECHR 2006 ‑ VIII).", "( i ) Lawfulness", "103. The interference with the applicant company ’ s possession was a result of the rules of domestic law (see paragraphs 26 and 53 above), which form a sufficient legal basis for the impugned restrictive measures. In this connection, the Court further observes that the domestic rules were sufficiently clear and foreseeable (see also paragraph 69 above). The interference was thus “prescribed by law”.", "(ii) Legitimate aim", "104. The Court reiterates that the conservation of cultural heritage and, where appropriate, its sustainable use, have as their aim, in addition to the maintenance of a certain quality of life, the preservation of the historical, cultural and artistic roots of a region and its inhabitants. As such, they are an essential value, the protection and promotion of which are incumbent on the public authorities (see Potomska and Potomski, cited above, § 64, and Bogdel v. Lithuania, no. 41248/06, § 60, 26 November 2013 ).", "105. The Court is thus satisfied that the interference pursued a legitimate aim, namely the protection of the country ’ s cultural heritage and the need to ensure the compliance of Lithuania with the international obligations to UNESCO (see paragraph 69 above).", "(iii) Proportionality", "106. Any interference with the right to the peaceful enjoyment of possessions must achieve a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights (see, among other authorities, Sporrong and Lönnroth v. Sweden, 23 September 1982, § 69, Series A no. 52). In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought. In each case involving the alleged violation of this right the Court must, therefore, ascertain whether by reason of the State ’ s action or inaction, the person concerned had to bear a disproportionate and excessive burden (see, Potomska and Potomski, cited above, § 6 5 and the cases cited therein ).", "107. In assessing compliance with Article 1 of Protocol No. 1, the Court must make an overall examination of the various interests in issue, bearing in mind that the Convention is intended to safeguard rights that are “practical and effective”. The Court has often reiterated that regional planning and environmental conservation policies, where the community ’ s general interest is pre-eminent, confer on the State a margin of appreciation that is greater than when exclusively civil rights are at stake (see Depalle, cited above, § 84 and the cases cited therein ). Nevertheless, in exercising its power of review, the Court must determine whether the requisite balance was maintained in a manner consonant with the applicant ’ s right to property (see Matczyński, cited above, § 105).", "108. Consideration must be given in particular to the question of whether the applicant, on acquiring the property, knew – or should have reasonably known – about the restrictions on the property, or possible future restrictions (see Matczyński, cited above, § 106 ), the existence of legitimate expectations with respect to the use of the property or acceptance of the risk on purchase, the extent to which the restriction prevented use of the property and the possibility of challenging the necessity of the restriction (see Potomska and Potomski, cited above, § 67 and the cases cited therein ).", "109. Turning to the circumstances of the present case, the Court observes that the applicant company bought the buildings in question in 2000. The buildings were situated in the Curonian Spit National Park, which was established in 1991 and included on the UNESCO World Heritage List in 2000 (until then it was included on the UNESCO World Heritage Tentative List) (see paragraph 69 above). This fact means that the State ’ s margin of discretion depended on its obligations to UNESCO and there are no doubts that the measures that have to be taken in respect of the UNESCO territory could be rigorous.", "110. The applicant company ’ s buildings were designated for demolition in the development plan of 1994, six years prior to the purchase and the restrictions preventing the development of the property were already in existence when the applicant company acquired it (see paragraphs 8, 51 - 53 above). Although a number of provisions of the development plan have been changed by the Management Plan in 2012, the provisions concerning the applicant company ’ s buildings remained unchanged since 1994 (see paragraph 40 above). The Court thus considers that the applicant company knew, or should reasonably have known, that under the domestic law in force at the time when it bought the buildings in question, the property was designated for demolition and although the date of the demolition had not been set, it had to take place at some point in time. The whole text and schemes of the development plan were accessible to all those who wanted to access them (see paragraph 69 above). The applicant company thus could not reasonably have expected to obtain planning permission to redevelop the buildings, in particular to reconstruct them by changing their designation, function or size, even if such possibility might have been considered at some point in time (see paragraphs 9 and 10 above) and must already have accepted the risk at the time of purchase because the demolition had to take place at some point in time. Contrary to the applicant company ’ s arguments, as is apparent from the documents submitted by the parties, the Management Plan of 2012 did not change the designation of the property, and its classification has not changed since. The applicant company thus was never entitled to any compensation for demolition of the buildings, irrespective of when such demolition had to take place.", "111. Lastly, the Court notes that the applicant company was not prevented from challenging the authorities ’ decisions as regards construction in the park before the domestic courts. In fact, the applicant company has actively exercised that right and has been involved in that procedure (see paragraphs 12, 16 - 19, 23 - 24, 31, 33 - 34, 27, 39, 41 and 43 above). The Court thus considers that the interference with the applicant company ’ s peaceful enjoyment of its property was accompanied in the present case by sufficient procedural guarantees affording to it a reasonable opportunity of presenting its case to the relevant judicial authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision (see Sourlas v. Greece ( dec. ), no. 46745/07, 17 February 2011).", "112. Having regard to all the foregoing factors, the Court finds that a fair balance was struck between the protection of the applicant company ’ s possessions and the requirements of the general interest. The applicant company did not, therefore, have to bear an individual or excessive burden.", "113. There has accordingly been no violation of Article 1 of Protocol No. 1 to the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "114. The applicant company complained that it had been deprived of a fair hearing and had not had an effective remedy because the domestic courts refused to accept its complaint in 2012, stating that it was under the jurisdiction of the Constitutional Court (see paragraphs 28 and 29 above) while it was impossible under domestic law to address the Constitutional Court with an individual constitutional complaint. The applicant company relied on Article 6 § 1 and Article 13 of the Convention. The Court considers that this complaint falls to be examined solely under Article 6 § 1 of the Convention, which in the present case should be viewed as lex specialis in relation to Article 13. The relevant part of Article 6 § 1 reads as follows:", "Article 6 § 1", "“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] tribunal...”", "A. Admissibility", "115. The Court notes that these complaints are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "116. The applicant company pointed out that the domestic courts had refused to accept its complaint regarding the Management Plan as being outside the scope of jurisdiction of the administrative courts, and added that under domestic law it could not apply directly to the Constitutional Court (see paragraph 60 above). It further complained that the Supreme Administrative Court disregarded its own interpretation of domestic law in another case, where it held that Article 16 § 2 of the Law on Administrative Proceedings merely separated the competence of the Constitutional Court and the administrative court but did not prevent a person from applying to the administrative court if his or her rights had been violated by certain legal act (see paragraph 78 above).", "117. The applicant company also argued that the provisions of the Management Plan were not general but rather individual in nature, as they determined an individual legal regime of the specific territory. The applicant company ’ s buildings, being within that territory, were directly affected by the provisions established in the Management Plan, and thus the administrative courts had to consider its complaint regarding the Management Plan.", "118. The Government submitted that the administrative courts had established that the Government Resolution by which the Management Plan had been approved was a normative legal act, and was thus outside the jurisdiction of the administrative courts. The applicant company would be able to contest an individual act, by which the Management Plan was implemented. The administrative courts had also clearly reasoned their position, explaining why the applicant company ’ s complaint was not within their jurisdiction (see paragraph 29 above).", "119. The Government also claimed that the administrative courts had some discretion, whether to apply to the Constitutional Court, and that in the applicant company ’ s case the administrative courts had clearly reasoned their position why there was no need to apply to the Constitutional Court. Moreover, in 2016, when the applicant referred to an individual legal act, the domestic courts did analyse, whether they had to apply to the Constitutional Court, and decided that there was no need to do that.", "120. Finally, the Government stated that the refusal of the domestic court to accept the applicant company ’ s claim did not deprive it of its right to contest the lawfulness of the act of the Government. The applicant company had to apply to the court in an individual case by contesting specific actions performed on the basis of the Government act and asking the court to refer the issue to the Constitutional Court.", "2. The Court ’ s assessment", "121. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal. This “right to a court”, of which the right of access is an aspect, may be relied on by anyone who considers on arguable grounds that an interference with the exercise of his or her civil rights is unlawful and complains that no possibility was afforded to submit that claim to a court meeting the requirements of Article 6 § 1 (see Stanev v. Bulgaria [GC], no. 36760/06, § 229, ECHR 2012 and the cases cited therein).", "122. Furthermore, the Court reiterates that the right of access to a court does not only include the right to institute proceedings, but also the right to obtain a “determination” of the dispute by a court (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 86, ECHR 2016 (extracts), and Fălie v. Romania, no. 23257/04, § 22, 1 9 May 2015 ). That right would be illusory if a Contracting State ’ s domestic legal system allowed an individual to bring a civil action before a court without ensuring that the case was determined by a final decision in the judicial proceedings. It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without securing to the parties the right to have their civil disputes finally determined (see Fălie, cited above, § 22, and Multiplex v. Croatia, no. 58112/00, § 45, 10 July 2003).", "123. The Court also notes that Article 6 § 1 of the Convention does not guarantee a right of access to a court with competence to invalidate or override a law (see S.B. and others v. Finland ( dec. ), no. 30289/96, 16 March 2004; Biziuk and Biziuk v. Poland ( dec. ), no. 12413/03, 12 December 2006; and Furdik v. Slovakia ( dec. ), no. 42994/05, 2 December 2008). Nevertheless, the Court reiterates that according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based (see Suominen v. Finland, no. 37801/97, § 34, 1 July 2003 ). Without requiring a detailed answer to every argument advanced by the complainant, this obligation presupposes that parties to judicial proceedings can expect to receive a specific and explicit reply to the arguments which are decisive for the outcome of those proceedings (see Deryan v. Turkey, no. 41721/04, § 33, 21 July 2015).", "124. Turning to the present case, the Court observes that the domestic law and case-law clearly establish both the right of access to a court and the possibility to challenge the legality of acts, as well as the right of a posteriori review of legal acts by the Constitutional Court (see paragraphs 46, 58, 60 and 76 above). In the absence of an individual constitutional complaint, the latter right can be implemented through the domestic courts (see paragraph 60 above), which have discretion to decide whether to refer an issue to the Constitutional Court. However, their refusal to do so has to be explicitly reasoned, as repeated by the Constitutional Court on a number of occasions (see paragraph 76 above).", "125. The Court further notes that the applicant company had the opportunity of bringing legal proceedings before the domestic courts; it availed itself of that opportunity by bringing a complaint about the Management Plan before the administrative courts ( see paragraph 27 above). This in itself, however, does not satisfy all the requirements of Article 6 § 1. In the instant case, the Court notes that the domestic administrative courts at two levels of jurisdiction did not allow the applicant company ’ s complaint on the grounds that it was outside their jurisdiction, and the applicant company ’ s request for reopening of the proceedings was rejected as the case had not been examined on the merits (see paragraphs 28 - 30 above). Indeed, the first-instance court provided rather succinct reasoning when dismissing the applicant company ’ s claim, limiting itself to re - citing statutory provisions (see paragraph 28 above). However, after the applicant company had lodged a separate complaint, the Supreme Administrative Court addressed the essential issues which had been submitted to it. It did not merely endorse, without further ado, the findings of the lower court, but thoroughly explained why it could not hear a case involving the lawfulness of the Government Resolution, which concerned State power issues (see paragraph 29 above).", "126. The Court notes that one of the applicant company ’ s arguments was that the Government Resolution at issue was an individual legal act and that, as such, it could be challenged before the administrative courts. However, the Court also observes that as early as 2007 the Constitutional Court had examined the lawfulness of the development plan and held that although it consisted of several parts, some of which consisted of graphic schemes, this did not deprive it of the character of a normative legal act (see paragraph 69 above). Moreover, in several other cases the Supreme Administrative Court had already ruled that the administrative courts could not examine the lawfulness of the Management Plan (see paragraph 79 above). Given the nature of the applicant company ’ s complaint, the Court considers it sufficiently proved that the domestic courts had ruled out the individual nature of the Management Plan. The Court sees no reason why the Supreme Administrative Court should have reached a different conclusion in the applicant company ’ s case, especially given that in the domestic proceedings, the applicant company limited its complaint to this exact issue, which had already been decided upon by the domestic courts (see paragraph 29 above).", "127. The Court also observes that the applicant company ’ s request to refer the issue on the Management Plan to the Constitutional Court was examined on the merits in 2016 and dismissed by the court of first instance (see paragraphs 36 and 125 above). However, the case concerned a different subject matter and the situation could not be compared to the applicant company ’ s situation in 2012.", "128. The Court thus considers that, having regard to the nature of the applicant company ’ s claim concerning the revocation of part of the Management Plan and the amendment of it, the applicant company may not validly argue that the decisions of the domestic courts deprived it of the right to a court. Even though in the present case a more substantial statement of reasons by the first-instance court might have been desirable, this shortcoming was later rectified (see paragraphs 36 and 125 above). The Court is satisfied that the degree of access afforded to the applicant company was sufficient to secure it the “right to a court” and to obtain a determination of the dispute by a court, given that the domestic courts duly reasoned their decisions as required by domestic law.", "129. There has accordingly been no violation of Article 6 § 1 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1939 and lives in Sofia.", "6. The applicant owns one half of a plot of land in the village of Golyamo Buchino, close to the city of Pernik. He also owned one half of a house standing on the plot, in which he lived until 1997, and one half of two smaller buildings, a barn and a pen. Those buildings no longer exist.", "7. On an unspecified date towards the end of the 1980s or the beginning of the 1990s the State took a decision to create an opencast coalmine near the village. In a decision of 8 May 1990 the local mayor expropriated about ninety properties in the area for that purpose, including the applicant ’ s land and buildings.", "8. The expropriation decision stated that the applicant should receive in compensation another plot of land in the village. The applicant received additionally a sum of money ( the parties have not presented the decision of the mayor on the additional compensation ). The majority of the remaining owners received either monetary compensation or flats in the city of Pernik. As another plot was not provided to the applicant within the statutory time ‑ limit of one year, on 21 August 199 2 he requested that the expropriation be cancelled, as he was entitled to under section 102 of the Property Act (see paragraph 24 below). Another person who was due a plot of land in compensation also applied to have the expropriation of her property cancelled. In a decision of 2 October 1992 the Pernik regional governor cancelled the two expropriations, noting that the plots of land due in compensation had not been provided “ owing to the impossibility for the municipality to ensure such plots”. The decision stated furthermore that the owners had to pay back the monetary compensation they had additionally received. On 22 December 1993 the applicant paid back that compensation.", "9. The applicant remained in his house. In the years which followed the mine approached the house, due to its gradual enlargement. Coal was extracted from it by means of detonations, which, according to the applicant, shook the house on a daily basis. On unspecified dates cracks appeared on the walls of the house, and the barn and the pen collapsed. Towards the beginning of 1997 the applicant ’ s family moved out of the house, judging it too dangerous to stay.", "10. Subsequently, the applicant contacted the mine, seeking to obtain compensation, but the negotiations failed. At the time, the mine was managed by a company which was wholly State-owned. In 200 5 it was privatised.", "11. In 2001 the applicant brought a tort action against the company operating the mine, seeking compensation for the damage caused to his property.", "12. The Pernik Regional Court (“the Regional Court”), which examined the case at first instance, heard a witness, a neighbour of the applicant, who stated during a court hearing of 13 December 2001 that the walls of the applicant ’ s house were cracked, that its state continued to deteriorate, and that the barn had collapsed three or four years earlier. He thought that the house had been well constructed, and explained that after the initial damage the applicant had attempted to repair it. On 7 March 2002 the Regional Court heard another witness, who stated that most of the damage to the applicant ’ s house had been caused three or four years earlier.", "13. The Regional Court appointed an expert, who established that the house had been constructed between 1948 and 1950, when there had been no requirements as to seismic resistance. At the time of drawing up the expert report the house was uninhabitable, as its walls were bent and cracked, with the cracks sometimes reaching 20-35 cm in width. The distance between the house and the mine ’ s periphery was about 160 ‑ 180 metres. This meant that the house was situated well inside the so ‑ called “sanitation zone” consisting of land within 500 metres of the mine ’ s edge, inside which the law prohibited any dwellings. The “security zone” for the mine, within which no unauthorised person was to be present during detonation works, had a radius of 600 metres. The expert confirmed his conclusions at a court meeting on 24 January 2002.", "14. In a judgment of 27 June 2003 the Regional Court dismissed the applicant ’ s action. It considered it established that the applicant ’ s property had been seriously damaged and that the damage had coincided in time with the beginning of detonation works in the mine. Still, it concluded that the applicant had not proven that a causal link existed between the damage and the detonations. He had relied in that regard on the witness testimony provided by two neighbours, but according to the Regional Court it was impossible to establish what had caused the damage to the property by way of witness testimony. The burden of proof to establish such a circumstance lay on the applicant and the other party had argued that the damage had been due to the manner of construction of his house.", "15. The applicant lodged an appeal. Before the Sofia Court of Appeal (“the Court of Appeal”) he called an additional witness, who stated during a hearing on 2 February 2004 that many houses in the area had already collapsed, and that all the other houses in the applicant ’ s neighbourhood had cracks.", "16. On 25 June 2004 the Court of Appeal upheld the Regional Court ’ s judgment, confirming its reasoning. It held that while witness testimony could establish the extent and the timing of the damage to the applicant ’ s property, it could not prove the causal link between that damage and the detonation works at the mine.", "17. The applicant lodged an appeal on points of law. In a judgment of 5 April 2006 the Supreme Court of Cassation quashed the Court of Appeal ’ s judgment and remitted the case for fresh examination. It was of the view that the lower courts had not duly accounted for the fact that the mine operated in a prohibited area close to the applicant ’ s house, the house being situated within both the “sanitation zone” and the “security zone” around the mine. The lower courts had had to examine this fact in light of the statements of the witnesses, which had “established the circumstance” that the damage to the applicant ’ s property had been the result of the detonation works. It was also necessary to assess compliance by the company operating the mine with other statutory requirements, such as those concerning environmental protection.", "18. After the case was remitted, the Court of Appeal commissioned a new expert report. The expert noted that, owing to the passage of time and the destruction of some documents, it was impossible to determine the exact distance between the applicant ’ s house and the area where the detonations had been carried out in 1997. Nevertheless, it was clear that the house had been well inside the “sanitation zone” around the mine. The expert additionally noted that the detonations had been carried out by qualified workers, in accordance with the mine ’ s internal rules.", "19. The Court of Appeal heard an additional witness for the applicant, who stated during a court hearing of 23 November 2006 that many houses in the village had collapsed, and that he thought that this was due to the detonations at the mine. He added that the detonations took place on a daily basis, that they caused “earthquakes”, and that the houses shattered as a result. The first cracks on the applicant ’ s house had appeared even before the time when the mine had operated closest to it. The witness was not aware of any landslides in the area.", "20. In a judgment of 2 April 2007 the Court of Appeal once again upheld the Regional Court ’ s judgment of 27 June 2003, dismissing the applicant ’ s claim. It found it “indisputable” that employees of the mine had acted in breach of law, by carrying out detonations in a prohibited area close to residential buildings, including at the time when, according to the applicant, the damage to his property had started. Nevertheless, on the basis of the material submitted, the applicant had not proved the causal link between the mine ’ s work and the damage to his property. The Court of Appeal reasoned in that regard:", "“ The causal link ... cannot be assumed – it is to be fully proven by the claimant. It has not been shown in the case that the claimant ’ s building, constructed in the 1950s, has been damaged precisely because of the detonation works at the mine. The claimant has not shown that the residential building and the auxiliary buildings, given [their] manner of construction, the materials [used] and the time of [their] construction, would not have been damaged, or would not have been damaged to such an extent, had it not been for the detonation works at the mine. It has not been shown whether and to what degree the buildings ’ state described by the expert [heard by the Regional Court] was due to normal wear and tear, taking into account the year [they were built] and the manner of [their] construction, and any lack of maintenance by the owner after the 1990 expropriation. ”", "21. Upon a further appeal by the applicant, in a final judgment of 3 July 2008 the Supreme Court of Cassation upheld the Court of Appeal ’ s judgment, affirming its conclusions. It pointed out in particular that the expert report presented to the Court of Appeal (see paragraph 18 above) had only established that the applicant ’ s property had been situated within the “sanitation zone” around the mine, but “was insufficient to prove the existence of a causal link between the damage ... and the unlawful behaviour of employees of the respondent company”.", "22. In the meantime, the applicant ’ s house has collapsed and no longer exists. The property has been abandoned." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Expropriations for public needs under the Property Act", "23. Section 101 of the Property Act ( Закон за собствеността ), as worded at the relevant time, allowed the expropriation of private property for “especially important State needs”, which could not be met otherwise.", "24. Section 102 stated in addition that the owner would receive compensation through other property or in cash, and that the authorities could take possession of the expropriated property only after the provision of the compensation due. If such compensation was not provided within one year of the entry into force of the expropriation decision, the owner could seek the cancellation of the expropriation. In 1996 section 102 of the Property Act was superseded by other legislation.", "B. Health and safety requirements with regard to industrial installations", "25. Ordinance No. 7 of 25 May 1992 concerning the health and safety requirements for the protection of health in residential areas ( Наредба № 7 от 25.05.1992 г. за хигиенните изисквания за здравна защита на селищната среда ), adopted by the Minister of Health in implementation of the Public Health Act (see paragraph 2 7 below), provided for the creation of “sanitation zones” around industrial installations which represented an environmental hazard. The width of such zones was to be between 50 and 3,000 metres, depending on the specific characteristics of each installation, and the construction of non-industrial buildings was not permitted inside the zones. If such buildings already existed, the owners of installations concerned by the “sanitation zone” requirement were obliged to limit any harmful activities “to the statutory levels” by the end of 1997; otherwise, they were obliged to close down the respective installation or move it to another area. This ordinance remained in force until 2011.", "26. In addition, “ security zones” around detonation sites, within which no person is allowed during any detonation works, are provided for in a document entitled Security Rules During Detonation Works ( Правилник по безопасността на труда при взривните работи ), adopted on 28 December 1996 by the Minister for Work and Social Assistance.", "27. The 1973 Public Health Act ( Закон за народното здраве ), in force until 2005, and after that the Health Act ( Закон за здравето ), regulate the functioning and powers of health protection bodies. Among other things, those bodies are entitled to conduct checks and inspections, and if necessary suspend the functioning of industrial objects or installations operating in breach of health protection rules, and impose administrative punishments.", "THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 AND ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1", "28. The applicant complained under Article 6 § 1 of the Convention of the manner in which the national court had decided on his claim against the company operating the mine. He complained furthermore under Article 8 of the Convention of an infringement of his right to a home. Lastly, he complained under Article 1 of Protocol No. 1 that he had been deprived of the possibility to “use freely” his property.", "29. Article 6 § 1, in so far as relevant, reads:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "Article 8 of the Convention and Article 1 of Protocol No. 1 read:", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 1 of Protocol No. 1", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. The parties ’ arguments", "1. The Government", "30. The Government pointed out that the complaint under Article 6 § 1 of the Convention was related to the outcome of the civil proceedings, and argued that it was of a fourth-instance character.", "31. Under Article 8 of the Convention, the Government contested the applicant ’ s claim that the house in Golyamo Buchino had been his “home”, pointing out that after 1997 he had not lived there.", "32. As concerns the complaint under Article 1 of Protocol No. 1, the Government pointed out that if the applicant had considered that employees of the mine had handled explosives in breach of the relevant rules, he could have requested that criminal proceedings be initiated against them on that account.", "33. The Government contended that the State could not be held responsible for the damage caused to the applicant ’ s property, as he had not shown that it was due to any action of the public authorities. Nor had the applicant shown that the damage at issue was indeed the result of the operation of the mine, and, this being so, the State could not have been expected to take measures to prevent “events the cause of which is unknown or cannot be reasonably predicted”. Moreover, the State could not be required to close down the mine, an enterprise of “ crucial economic importance”, for the sole reason that “an individual upon his free will chose to continue living in its vicinity”.", "34. The Government submitted that the State ’ s responsibility was limited to guaranteeing the effectiveness of judicial proceedings between private parties. In such proceedings, the applicant had failed to substantiate his claim, and the claim had thus been dismissed “due to the objective facts of the case ”. In any event, at the beginning of the 1990s the State had expropriated the applicant ’ s property and had offered him compensation.", "2. The applicant", "35. The applicant reiterated that his rights had been breached. He pointed out that the Government had not contested the fact that the mine had operated in a prohibited area close to his property, which had also been acknowledged by the domestic courts.", "36. Under Article 6 of the Convention, the applicant argued that the national courts had reached the wrong conclusion in the tort proceedings initiated by him in finding that he had not proved the causal link between the mine ’ s work and the damage to his property. In his view, that causal link had been clearly established by the witnesses and the experts heard by the courts. The applicant added that, prior to being obliged to leave the house, he had repaired and maintained it, and that it had been well constructed.", "37. As regards his complaint under Article 8 of the Convention and the question as to whether the case concerned his “home”, the applicant pointed out that he had a “strong emotional connection” with the house in Golyamo Buchino, where he had grown up and where he had lived predominantly with his family until 1997. He had not left the house of his own free will, but had been forced to do so after it had become dangerous to live there. The unlawful damage to the house rendering it uninhabitable meant that Article 8 of the Convention had been breached.", "38. Under Article 1 of Protocol No. 1, as to the Government ’ s argument that he could have sought the criminal prosecution of employees of the mine (see paragraph 32 above), the applicant considered that such prosecution could not have provided the redress he sought, and in any event he had pursued another remedy, claiming damages.", "39. The applicant pointed out that detonation works were inherently dangerous, and that the State had therefore established safety rules. In the event of a mine operating near to a house, the State required a protective “sanitation zone”, but even though his house had remained well inside such a zone, the mine had been allowed to continue to operate. The applicant argued that after the cancellation of the expropriation of his property the State had had to step in to exercise control and ban the unlawful activity. The applicant additionally pointed out that his request that the 1990 expropriation of his properties be cancelled had been motivated by the State ’ s failure to provide the compensation due to him within the statutory time limit. He had not been obliged to await this compensation indefinitely.", "B. The Court ’ s assessment", "1. Admissibility", "(a) Article 8 of the Convention", "40. The applicant complained of a breach of his right to respect for his home (see paragraph 28 above).", "41. Under Article 35 § 1 of the Convention, the Court may examine a matter only where it has been submitted to it within six months of the date on which a final decision was taken. The primary purpose of this rule is to maintain legal certainty by ensuring in particular that cases raising issues under the Convention are examined within a reasonable time. Furthermore, the rule facilitates the establishment of facts in a case, since with the passage of time any fair examination of the issues raised is rendered problematic (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 39, 29 June 2012).", "42. As was also pointed out by the Government (see paragraph 3 1 above), the house in Golyamo Buchino, which is the subject of this complaint, ceased to be the applicant ’ s home in 1997 when he moved out of it, judging it too dangerous to stay (see paragraph 9 above ). The tort proceedings the applicant brought subsequently were not aimed at recovering the house or enabling him to return there, and there were no other developments in relation to his right to respect for his home. For these reasons the Court is of the view that as concerns the applicant ’ s complaint under Article 8 the six-month time-limit under Article 35 § 1 of the Convention started running in 1997 when he moved out of his house.", "43. That complaint, lodged in December 2008 (see paragraph 1 above), has thus been lodged out of time, and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.", "(b) Remainder of the application", "44. Concerning the complaint under Article 1 of Protocol No. 1, the Government appeared to raise an objection of non-exhaustion of domestic remedies, since they stated that the applicant had failed to seek the criminal prosecution of employees of the mine who might have handled explosives in breach of the relevant rules (see paragraph 32 above). However, the Government have not shown that the remedy at issue could have provided any adequate redress to the applicant, enabling him to return to his house or to obtain compensation, and the Court thus dismisses the objection.", "45. It finds in addition that the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, or inadmissible on any other ground. They must therefore be declared admissible.", "2. Merits", "(a) Article 6 § 1 of the Convention", "46. The applicant argued that the national courts had wrongly decided in the tort proceedings brought by him against the company operating the mine, in particular in concluding that no causal link had been shown to exist between the detonations at the mine and the damage to his property (see paragraph 36 above).", "47. The Court has said on numerous occasions that it is not called upon to deal with errors of fact or law allegedly committed by the national courts, as it is not a court of fourth instance, and that it is not called upon to reassess the national courts ’ findings, provided that they are based on a reasonable assessment of the evidence (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I, and Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 197, ECHR 2012 ). Thus, issues such as the weight attached by the national courts to given items of evidence or to findings or assessments submitted to them for consideration are not normally for the Court to review (see Bochan v. Ukraine (no. 2) ([GC], no. 22251/08, § 61, ECHR 2015, and Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 83, ECHR 2017 (extracts) ).", "48. Nevertheless, the Court may entertain a fresh assessment of evidence where the decisions reached by the national courts can be regarded as arbitrary or manifestly unreasonable (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, §§ 803-4, 25 July 2013, and Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 90, ECHR 2016 (extracts)). Thus, for instance, in the case of Dulaurans v. France (no. 34553/97, §§ 36-38, 21 March 2000), the Court found a violation of the right to a fair trial because the sole reason why the French Court of Cassation had arrived at its contested decision rejecting the applicant ’ s appeal on points of law as inadmissible was the result of “a manifest error of assessment”. In Anđelković v. Serbia (no. 1401/08, § 27, 9 April 2013), the Court also found that the domestic court ’ s decision, which principally had had no legal basis in domestic law and had not established any connection between the facts, the applicable law and the outcome of the proceedings, was arbitrary. In Bochan (no. 2) (cited above, §§ 63-65), the Supreme Court had so “grossly misinterpreted” a legal text (an earlier judgment of the Court) that its reasoning could not be seen merely as a different reading of that text, but was “grossly arbitrary” or entailing a “denial of justice”. In Carmel Saliba v. Malta (no. 24221/13, §§ 69-79, 29 November 2016), the Court criticised the domestic courts for having relied on the inconsistent testimony of one witness and having failed to adequately comment on the remaining evidence; combined with other less significant shortcomings of the civil proceedings, this meant that those proceedings had not been fair.", "49. In the present case the domestic courts appointed experts and heard witnesses, former neighbours of the applicant, and found on the basis of this evidence that the applicant ’ s house and the other buildings in his yard were seriously damaged and had become unusable. They found furthermore that the detonations in the nearby mine had been carried out in breach of law (even though by qualified workers and in accordance with the mine ’ s own internal rules), including at the time when, according to the applicant, the damage to his property had started (see paragraphs 1 4 and 2 0 above).", "50. It was also established that, when the detonations were carried out closest to the applicant ’ s property, they were within 160-180 metres of it (see paragraph 13 above). However, while the applicant has not at any stage specified when the mining activity of which he complained commenced, it would appear that this occurred sometime in the early 1990s (see paragraph 7 above). In contrast, the expert reports on which the domestic courts relied were only drawn up in 2001 - 0 2 and 200 6- 0 7 as the applicant waited until 2001 to initiate his tort action. Those expert reports found that it was impossible to say whether the distance just referred to had been the distance in 1997 when the damage to the applicant ’ s house had become so significant that he had had to leave (see paragraphs 13 and 18 above).", "51. The Court is of the view that, unlike the cases referred to in paragraph 4 8 above, the present case does not concern “a manifest error of assessment” on the part of the national courts, or a “gross misinterpretation” of the relevant circumstances, or reasoning disregarding the bulk of the evidence presented or failing to connect the established facts, the applicable law and the outcome of the proceedings. The present case concerns the national courts ’ assessment of the applicant ’ s claim as argued by him and in light of the evidence presented. The courts discussed and took into account the findings of the experts which they had appointed and the testimony of the witnesses put forward by the applicant, and made their own assessment as to their evidentiary value, stating in particular that the witness evidence was insufficient to prove the causal link alleged by the applicant (see paragraphs 1 4, 1 6 and 2 0 -2 1 above).", "52. After the case was remitted by the Supreme Court of Cassation (see paragraph 1 7 above), the Court of Appeal complied with its instructions to take into account the unlawfulness of the detonation works carried out at the mine, and expressly discussed that aspect, but still, on the balance, considered that the causal link between those detonations and the damage to the applicant ’ s house had remained unproven (see paragraph 20 above). As already noted, due to the passage of time and the destruction of some documents, it had proved impossible to determine the distance between the applicant ’ s house and the area where the detonations had been carried out in 1997 – the year in which he had abandoned his property. While it had been established that damage to the property had occurred, the cause or causes of that damage or the extent to which the mining activities had caused the damage and when could not be established.", "53. The above conclusion was upheld when the case reached the Supreme Court of Cassation for the second time (see paragraph 2 1 above).", "54. The applicant ’ s complaint under Article 6 § 1 of the Convention concerns thus the weight attached by the national courts to the evidence presented, in particular the witness testimony, and their assessments of the issues raised before them. As mentioned above (see paragraph 47 ), it is not normally for the Court to review such matters.", "55. In view of the above, the Court cannot conclude that the decisions of the national courts, in particular their conclusion contested by the applicant as to the existence of a causal link between the detonation works at the mine and the damage to his property, reached the threshold of arbitrariness and manifest unreasonableness described in paragraph 4 8 above, or amounted to a “denial of justice”. Accordingly, the applicant did have a “fair hearing” of his case, as required by Article 6 § 1 of the Convention", "56. Hence, there has been no violation of that provision.", "(b) Article 1 of Protocol No. 1", "57. The applicant owned one half of the plot of land and the buildings located in the village of Golyamo Buchino (see paragraph 6 above). Accordingly, the Court finds that he had “possessions”, within the meaning of Article 1 of Protocol No. 1.", "58. On an unspecified date towards the end of the 1980s or the beginning of the 1990s the State took a decision to create an opencast coalmine close to the applicant ’ s village. An expropriation procedure concerning numerous properties in the area of the future mine, including the applicant ’ s house and land, was commenced in 1990 (see paragraph 7 above). However, as regards the applicant ’ s property the procedure failed, as the expropriation was quashed at the request of the applicant after part of the compensation designated for him, namely another plot of land in the village, was never provided to him (see paragraph 8 above). While, as mentioned, it was the applicant himself who sought the quashing of the expropriation (ibid.), the Court is of the view that he cannot be blamed for the expropriation procedure ’ s failure. He had waited to receive another plot of land in the village for more than two years, from May 1990 to August 1992, and the Government have not shown that the authorities intended to honour their legal obligations under the expropriation procedure and that such a plot could have indeed been provided to the applicant.", "59. The applicant and his family remained in the house, whereas the mine started operating close to it (see paragraph 9 above). It has not been disputed – and it was confirmed by the domestic courts in the tort proceedings initiated by the applicant – that the mine, where coal was extracted by means of detonations, represented an environmental hazard, and that the health -and- safety requirements contained in the Minister of Health ’ s Ordinance No. 7 of 25 May 1992, in particular the maintenance of “ sanitation zones” around non-industrial buildings such as dwellings (see paragraph 2 5 above), applied to it. The “ sanitation zone” required in the case was 500-metre wide. However, the mine gradually expanded, and at the closest operated within 160-180 metres from the applicant ’ s house.", "60. At the relevant time the mine was managed by a company which was entirely State-owned (see paragraph 10 above). For the Court, the fact that that company was a separate legal entity under domestic law (see, for example, Ilieva and Others v. Bulgaria, no. 17705/05, § 36, 3 February 2015) cannot be decisive to rule out the State ’ s direct responsibility under the Convention (see Liseytseva and Maslov v. Russia, nos. 39483/05 and 40527/10, § 188, 9 October 2014, and Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 114, ECHR 2014 ). The parties have provided no information on the extent of State supervision and control of the company at the relevant time. Of relevance is that it was not engaged in ordinary commercial business, operating instead in a heavily regulated field subject to environmental and health-and-safety requirements (see, mutatis mutandis, Mykhaylenky and Others v. Ukraine, nos. 35091/02 and 9 others, § 45, ECHR 2004 ‑ XII). It is also significant that the decision to create the mine was taken by the State, which also expropriated numerous privately-owned properties in the area to allow for its functioning, under legislation concerning “especially important State needs ” (see paragraphs 7 and 24 above). All of the above factors demonstrate that the company was the means of conducting a State activity and that, accordingly, the State must be held responsible for its acts or omissions raising issues under the Convention.", "61. In view of the considerations above, the Court is of the view that the authorities, through the failed expropriation of the applicant ’ s property and the work of the mine under what was effectively State control, were responsible for the applicant ’ s property remaining in an area of environmental hazard, namely daily detonations in close proximity to the applicant ’ s house. That situation, which led to the applicant abandoning his property in 1997 (see paragraph 9 above), amounted to State interference with his “possessions” within the meaning of Article 1 of Protocol No. 1.", "62. Such an interference cannot be regarded as either a deprivation of property or a control of use within the meaning of the first and second paragraphs of Article 1 of Protocol No. 1. However, it falls within the meaning of the first sentence of that provision as an interference with the peaceful enjoyment of possessions (see, mutatis mutandis, Loizidou v. Turkey (merits), 18 December 1996, § 63, Reports of Judgments and Decisions 1996 ‑ VI).", "63. The first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful (see, for example, Beyeler v. Italy [GC], no. 33202/96, § 108, ECHR 2000 ‑ I). This means, in the first place, compliance with the requirements of national law (see Iatridis v. Greece [GC], no. 31107/96, §§ 58-62, ECHR 1999 ‑ II).", "64. In the present case, domestic law required the maintenance of protective “ sanitation zones” around industrial installations representing environmental hazard, on the territory of which there could be no residential buildings (see paragraph 2 5 above). As regards in particular the mine in the vicinity of the applicant ’ s village, the required buffer area was 500 - metre wide. Despite that, the mine operated, conducting daily detonations much closer, at the closest within 160-180 metres (see paragraphs 1 3 and 19 above).", "65. In the tort proceedings initiated by the applicant, the Court of Appeal stated that the carrying out of detonations by the mine in such vicinity to the residential buildings was “indisputably” in breach of the domestic legislation (see paragraph 2 0 above). This means that the interference with the peaceful enjoyment of the applicant ’ s possessions as defined above, manifestly in breach of Bulgarian law, was not lawful either for the purposes of the analysis under Article 1 of Protocol No. 1. This conclusion makes it unnecessary to ascertain whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the applicant ’ s rights (see Iatridis, cited above, § 62).", "66. There has therefore been a violation of Article 1 of Protocol No. 1.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "67. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "68. In respect of pecuniary damage, the applicant claimed 9,040.70 Bulgarian levs (BGN – the equivalent of 4,622.51 euros (EUR)) for the value of his share of the property in Golyamo Buchino, plus default interest. He presented valuation reports prepared by experts. He pointed out that, as a result of the conduct of the State complained of, his house and the auxiliary buildings had collapsed and had become unusable. In respect of non-pecuniary damage, the applicant claimed EUR 9,000.", "69. The Government contested the claims.", "70. The Court finds that it is justified to award the applicant compensation for the breach of his property rights as a result of the exposure of his property to environmental hazard. It considers in addition that it is appropriate to award a lump sum, covering any pecuniary and non ‑ pecuniary damage. In view of all the circumstances of the case, including the value of the applicant ’ s property as indicated by him (see paragraph 68 above), the Court fixes that sum at EUR 8 ,000.", "B. Costs and expenses", "71. For the proceedings before the Court, the applicant claimed BGN 2, 8 00 (the equivalent of EUR 1,431) for the fee charged by his legal representative, the expert valuations submitted in support of his claim for pecuniary damage (see paragraph 68 above) and translation. In support of the claim he submitted the relevant receipts and a contract with a translator.", "72. The applicant also claimed expenses incurred by him in the domestic tort proceedings, amounting to BGN 961.30 in total (the equivalent of EUR 491). These included court fees and the cost of an expert report. In support of this claim the applicant submitted the relevant receipts.", "73. The Government contested the claims.", "74. In accordance with the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court allows the claim in respect of costs and expenses in full. As to the claim concerning the expenses incurred in the domestic tort proceedings, it notes that, in bringing those proceedings, the applicant sought to obtain compensation for the violation of his property rights. The total amount awarded under this head is thus EUR 1,92 2.", "C. Default interest", "75. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "THE CIRCUMSTANCES OF THE CASE", "5. The applicant lives in Çayırlı (Turkey).", "Search and seizure of the applicant’s vessel", "6. On 2 April 2010 K.D. was sailing with his crew on the Black Sea on a vessel rented from the applicant. The vessel displayed a Romanian flag.", "7. The Romanian coastguard asked them to stop at a distance of approximately 42 nautical miles from Sf. Gheorghe and 68 nautical miles from Gura Portiţei. Since the crew initially refused to stop, the Romanian coastguard formally ordered them to do so, by threatening to open fire. The crew obeyed the order to stop and the vessel was subsequently subjected to border controls.", "8. Further to the search conducted on the deck of the vessel, the coastguard did not find any fish, but found unauthorised fishing equipment which showed signs of having been recently used. They also ascertained that the vessel was not authorised to perform fishing activities in the Romanian exclusive economic zone in the Black Sea, that K.D. did not have a fishing permit and that the vessel did not possess a fishing journal in which its fishing activities should have been recorded. It seemed that the activities had been ordered by K.D. as commander of the vessel and performed by the members of the crew, without the latter being aware of the failure to comply with the statutory fishing requirements and of the illegal display of the Romanian flag.", "9. The crew were accused of having committed criminal offences relating to the fishing regime in Romanian territorial waters.", "10. The vessel was escorted to the Constanţa harbour and the goods and the vessel were seized. According to the applicant, the value of the vessel was 800,000 euros (EUR), since it was equipped with new Volvo-type engines and electronic maps using the latest technology.", "First set of proceedings and the criminal conviction of K.D.", "11. By a bill of indictment of 9 June 2010, K.D. was sent for trial before the Constanţa District Court for having committed the criminal offences punishable by Government Emergency Ordinance no. 23/2008 on fishing and aquaculture (“GEO 23/2008”) since it was held that he did not have a fishing permit for the vessel, that he possessed and had used fishing equipment without authorisation, that he had performed illegal fishing activities and that he had unlawfully displayed the Romanian flag.", "12. K.D., represented by a lawyer of his choice, namely Mr Lieanu, opted to fully acknowledge his guilt and thus to follow a simplified procedure, in accordance with Article 320 1 of the Code of Criminal Procedure (see paragraph 35 below).", "13. On 24 May 2011 K.D. declared before the court that he used the vessel on the basis of a verbal agreement with the applicant, who was its owner. He further stated that even though he did not notify the applicant whenever the vessel left Turkish territorial waters, upon returning from foreign territorial waters the crew always informed the applicant where they had caught any fish from, and despite the fact that the applicant usually got upset about this information, he still gave them a bonus for catching fish.", "14. The applicant submitted to the court a written statement, given before a notary public in Istanbul on 27 January 2011. In it he stated that the vessel, which was his property, had been “caught without his knowledge within Romanian territorial waters”. He asked the court to return all the equipment on the ship to him (including the fishing nets). He gave an undertaking never to enter Romanian territorial waters or to act against Romanian laws. He also submitted a copy of his title to the vessel, as well as a permit for fishing within Turkish territorial waters.", "15. Despite several requests from the court asking it to state its position in the case, the National Agency for Fishing and Aquaculture did not reply or formulate any civil claims.", "16. By a judgment of 13 July 2011 the Constanţa District Court sentenced K.D. to two years’ imprisonment, suspended. It also ordered the seizure of the fishing equipment and ordered the return of the vessel to the applicant since there was no clear evidence that K.D. had used the vessel in Romanian territorial waters with the applicant’s knowledge.", "17. The prosecutor’s office attached to the Constanţa District Court (“the prosecutor’s office”) lodged an appeal on points of law ( recurs ) against that judgment, arguing that K.D. should also be sentenced to the payment of a fine of 6,000 Romanian lei (RON) on account of his prior criminal conviction for offences relating to the fishing regime and that the applicant’s vessel should be seized as a security measure as per Article 66 of GEO 23/2008 (paragraph 33 below).", "18. By a final judgment of 30 March 2012 the Constanţa Court of Appeal allowed the prosecutor’s office’s appeal on points of law and partially quashed the lower court’s judgment. The court rejected the request to impose a criminal fine in relation to K.D.; however, noting that the applicant had not been summoned to appear during the proceedings, the court ordered the lower court to re-examine the case solely in respect of the measure of special confiscation of the applicant’s vessel, and to summon the applicant to appear in court, since the measure in question might substantially affect his property rights.", "Second set of proceedings: examination of the special confiscation measure", "19. During the new set of proceedings, K.D. was represented by Mr Lieanu, the applicant’s lawyer in the proceedings before the Court (see paragraph 2 above); the applicant was legally summoned to appear. However, neither K.D., nor the applicant was present during any of the hearings before either the first-instance or the appeal court.", "20. During its last hearing on 21 March 2013 the Constanţa District Court firstly established the scope of the case, holding that it had jurisdiction to examine only the security measure imposed in respect of the applicant’s vessel, the remainder of the case having already been adjudicated, in respect of both its criminal and its civil limbs. K.D.’s lawyer accepted those conclusions.", "Nevertheless, he argued that the vessel had not been caught within Romanian territorial waters, and that this implied that the criminal offence giving rise to the security measure fell outside Romania’s jurisdiction.", "21. By a judgment of 8 April 2013 the Constanţa District Court ordered the confiscation of the vessel belonging to the applicant, relying on Article 66 of GEO 23/2008 (paragraph 33 below). It noted that the length of the fishing nets deployed in the deep seas indicated that the vessel had necessarily been used to commit the criminal offence of illegal fishing of which K.D. had been convicted, and that without the vessel, fishing activities in the Black Sea would not have been possible. It held that it was of no relevance whether the applicant had or had not been aware of the purpose of the use of the vessel by K.D, because by virtue of Article 66 of GEO 23/2008, the confiscation measure was not conditioned by the subjective attitude of the owner of the vessel, in the event that the owner was not also the perpetrator; from that respect, Article 66 represented the special norm, thus departing from the general norm (that is, Article 118 of the Criminal Code, hereinafter “the CC”; see paragraph 34 below).", "22. K.D. and the applicant, both represented by Mr Lieanu, appealed against that judgment.", "23. In the appeal lodged on behalf of K.D., his representative Mr Lieanu raised the following arguments.", "24. Firstly, he argued that the definition of the Romanian exclusive economic zone was in dispute, since, in the absence of a specific regulation in the United Nations Convention on the Law of the Sea, it should have been decided upon by the relevant coastal States, which had not happened in the present case.", "25. He also invoked Article 118 § 6 of the CC (see paragraph 34 below), which provided that goods that served to ensure a person’s subsistence or were used for the practice of a profession should not be confiscated. He argued that the applicant derived his only income from the rental of the vessel and the associated fishing activities. He further stated that a special confiscation measure should be applied when the goods in question would serve as potential compensation for the injured parties; he contended that in similar cases where the special confiscation measure was applicable, the domestic courts had ordered that the forfeiture be carried out in the form of a monetary equivalent (see domestic practice, paragraph 36 below).", "26. The record of the last hearing of 20 June 2013 mentions that K.D. as well as the applicant contested the imposition of the special confiscation measure and invoked the provisions of Article 118 § 1 (b) of the CC (see paragraph 34 below) which stated that the items used to commit a criminal offence should not be confiscated if they belonged to another person than the perpetrator, who was not aware of the purpose of their use. They stated that the vessel and the fishing equipment were the applicant’s property and that the latter had not been aware of the use made of the rented items by K.D. in the Romanian exclusive economic zone. According to them, the confiscation of the vessel was disproportionate to the nature and gravity of the offence, given the significant value of the vessel and the absence of any proven damage. They argued that no harm had been caused and that no civil or injured parties had joined their complaints to the proceedings. In that connection, they requested that if any confiscation measure was necessary, it should be taken in accordance with Article 118 § 2 of the CC, in the form of a monetary equivalent amounting to EUR 10,000.", "27. By a final judgment of 26 June 2013 (drafted on 15 July 2013) the Constanţa Court of Appeal dismissed the applicant’s appeal on points of law and upheld the lower court’s judgment.", "28. Without referring in any way to the arguments brought on behalf of K.D. relating to jurisdiction (see paragraph 24 above), the appellate court considered the provisions of the lex specialis GEO 23/2008 to be those applicable to the case, making the confiscation of the vessel mandatory in accordance with its Article 66. The court nevertheless assessed the applicant’s good faith and awareness, within the meaning of Article 118 of the CC, of the unlawful purpose of the use of his vessel.", "29. The court thus found that the existence on board of several instruments used specifically for illegal fishing was an indication of the applicant’s bad faith. Furthermore, at the time of the seizure, the vessel had not had either a fishing permit or any authorisation for using fishing equipment. The court therefore stated that the applicant’s innocence could not be ascertained (“ nu se poate susţine inocenţa reclamantului ”), while his statement before the notary public to that end (see paragraph 14 above) did not suffice to prove his good faith since it was not corroborated by other evidence.", "30. The court also held that forfeiture in the form of a monetary equivalent was not acceptable in the present case in view of the fact that the confiscation measure applied was proportionate to the gravity of the criminal offence and the extent of the consequences that might have been caused from an economic and ecological standpoint, namely the potential damage to protected fish stocks in the Black Sea. In this context, the court referred to the frequent injuries to dolphins and other species caused by this particular type of criminal activity.", "Subsequent developments", "31. The Government submitted that in 2013 the value of the vessel had been assessed by a special valuation commission, which had found in its report of 14 November 2013 that the vessel had an 81% degree of depreciation.", "32. Several calls for a public auction had been issued. The vessel had finally been sold to a private party on 8 August 2016 for the price of RON 8,500 (approximately EUR 1,900), which reflected the severe depreciation of the value of the vessel. The money was collected by the State Treasury on 27 September 2016.", "RELEVANT DOMESTIC LAW AND PRACTICEDomestic law", "Domestic law", "Domestic law", "33. Article 66 § 1 of Government Emergency Ordinance no. 23/2008 on fishing and aquaculture (“GEO 23/2008”) reads as follows:", "Article 66", "“(1) Fishing vessels and equipment, animals, transportation means, firearms and any other items that have served to commit a criminal offence shall be seized for the purpose of confiscation.”", "34. The relevant provisions of Article 118 of the Criminal Code (“CC”), as in force at the time of the events, read as follows:", "Article 118", "“(1) The following shall be subject to special confiscation:", "...", "(b) goods that have been used in any way to commit a criminal offence, if they belonged to the perpetrator or if they belonged to a third party and the latter had been aware of the purpose of their use ...", "(2) In the case provided for by paragraph 1 (b), if the value of the goods subject to confiscation is clearly disproportionate with reference to the nature and gravity of the offence, partial forfeiture in the form of a monetary equivalent may be ordered, taking into consideration the outcome of the criminal offence and the contribution of the goods to its commission.", "...", "(6) The court may not order the confiscation of goods if they serve to ensure the subsistence, or are intended for the daily use or for the practice of the profession of the perpetrator or of the person whom the confiscation measure may affect.”", "35. Article 320 1 of the Code of Criminal Procedure, as in force at the relevant time, provided for a simplified procedure for the situation when the accused fully acknowledged his or her guilt and accepted that the court would rely exclusively on the evidence adduced during the investigation stage, in exchange for a more lenient sentence, reduced by up to one-third, in the event of a conviction.", "Domestic practice", "36. The domestic practice referred to by the applicant showed that, on the one hand, the measure of special confiscation should only be applied when the goods would serve as potential compensation (judgment no. 717/16 September 2003 by the Constanţa Court of Appeal). On the other hand, judgments no. 963 of 18 October 2012 and no. 1017 of 3 November 2011 by the Constanţa Court of Appeal revealed that the courts had instead ordered forfeiture in the form of a monetary equivalent amounting to EUR 10,000 in accordance with Article 118 § 2 of the CC, in view of the fact that the pecuniary value of the vessel in question was many times higher than any damage potentially caused.", "37. The Government submitted a viewpoint formulated by the domestic courts within the Constanţa Court of Appeal’s territorial jurisdiction. The courts had indicated that their consistent approach in relation to the subject matter of the case was always to make an assessment on the applicability of Article 118 § 2 of the CC in conjunction with Article 66 of GEO 23/2008, based on whether the value of the vessel was disproportionate compared to the nature and gravity of the offence, the consequences of the offence and the role played by the vessel in committing the offence. This approach was clear and foreseeable in the sense that the confiscation measure applied on the basis of Article 66 was not automatic, but was always assessed in the particular circumstances of each case. Relevant case-law in which the courts had ordered the confiscation of other Turkish vessels was submitted, the courts pointing to the frequency of offences similar to those in the present case committed by fishing crews cruising under the Turkish flag. The courts had also indicated that there was a frequent practice of dissimulating the real owner of a vessel by having it registered in the name of a different person from its commander, so as to prevent its potential confiscation from a third party from being ordered." ]

[ "THE LAW", "ALLEGED VIOLATION OF ARTICLE 1 of Protocol No. 1 to THE CONVENTION", "38. The applicant complained that the confiscation of his vessel amounted to an unlawful and disproportionate interference with his right to the peaceful enjoyment of his possessions. He invoked Article 1 of Protocol No. 1, which reads as follows:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "Admissibility", "39. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and not inadmissible on any other grounds. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicant", "40. The applicant argued that the confiscation of his vessel had been unlawful with reference to the fact that his actions had not been subject to Romania’s jurisdiction, in so far as at the moment of the seizure, the vessel had not been within the Romanian exclusive economic zone. In this connection, he underlined that no bilateral treaties establishing the respective exclusive economic zones had been concluded between the relevant costal States.", "41. He further argued that the measure of confiscation had been disproportionate in view of the value of the vessel in relation to the damage actually incurred through the perpetration of the criminal offence – damage which, he claimed, was in fact non-existent, in the absence of any civil claims by any injured party in the criminal proceedings.", "42. Furthermore, the Romanian authorities had failed to apply the relevant provisions of Article 118 § 2 of the CC, which allowed forfeiture in the form of a monetary equivalent, as illustrated by the case-law of the Constanţa Court of Appeal (see paragraph 36 above).", "(b) The Government", "43. Concerning the matter of jurisdiction, the Government contended that in view of the geographical coordinates indicating the position where the vessel had been confiscated (see paragraph 7 above), namely within the Romanian exclusive economic zone, Romania’s jurisdiction was undisputable. They pointed out that the vessel’s specific position had been of such a nature as to be capable of raising potential jurisdiction issues only in relation to Ukraine, and even in such a situation, Romania’s jurisdiction had become clear following the International Court of Justice’s judgment of 3 February 2009, which had established the zones of exclusive jurisdiction in respect of the two countries. Furthermore, the Government argued that K.D. and his crew had been aware of the whereabouts of the vessel, namely that they were within the Romanian zone, in view of the fact that when approached, the vessel had displayed the Romanian flag, even though the vessel was registered with the Turkish authorities.", "44. The Government further contended that the impugned measure was lawful, having its basis in Article 66 of GEO 23/2008, in conjunction with the provisions of Article 118 of the CC (see paragraphs 33 and 34 above). The relevant law had been clear, accessible and applied in a foreseeable manner, as proved also by the relevant jurisprudence of the domestic courts within the Constanţa Court of Appeal’s territorial jurisdiction (see paragraph 37 above). The measure had been necessary for the control of the use of property, in accordance with the second paragraph of Article 1 of Protocol No. 1, in the general context of the fight against illegal fishing and of the attempt to protect the biological resources of the Romanian exclusive economic zone.", "45. The Government further submitted that the measure taken against the applicant had been proportionate, in view of the nature and the gravity of the offence committed. They also mentioned that the applicant had failed to produce before the domestic courts or the Court any document or report relating to the value of the vessel and its equipment, or to the fact that the vessel represented his only source of income, within the meaning of Article 118 § 6 of the CC. In ordering the confiscation of the vessel belonging to the applicant, the domestic courts had assessed not only the relevance of Article 66 of GEO 23/2008, but also aspects relating to his own conduct in relation to the criminal offence committed by K.D. Following an adversarial procedure in which the applicant, represented by a lawyer of his choice (see paragraph 22 above), had had the opportunity to adduce evidence and submit arguments, the courts had found that his good faith was not supported by sufficient evidence, and hence the exceptions to confiscation provided for by Article 118 of the CC could not be applied.", "The Court’s assessment", "(a) The applicable rule", "46. The Court notes that the confiscation complained of constituted interference with the applicant’s exercise of his right to the peaceful enjoyment of his possessions. This was not contested by the parties.", "47. It further points out that Article 1 of Protocol No. 1 comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers the deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. The three rules are not, however, “distinct” in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many authorities, AGOSI v. the United Kingdom, 24 October 1986, § 48, Series A no. 108, and Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 185, ECHR 2012)", "48. In the present case, the confiscation affected a possession which the courts had found to have been used unlawfully, and was intended to prevent the applicant’s vessel from being used to commit other offences, to the community’s detriment.", "49. The Court notes that the confiscation of the applicant’s vessel was a permanent measure which entailed a conclusive transfer of ownership (see Andonoski v. the former Yugoslav Republic of Macedonia, no. 16225/08, § 30, 17 September 2015; and to a converse effect, JGK Statyba Ltd and Guselnikovas v. Lithuania, no. 3330/12, §115, 5 November 2013; and Hábenczius v. Hungary, no. 44473/06, § 28, 21 October 2014). The Government did not argue that there was any possibility for the applicant to seek restoration of his possession (see, conversely, C.M. v. France (dec.), no. 28078/95, ECHR 2001 ‑ VII). The Court therefore considers that the measure amounts, in the circumstances of the present case, to a deprivation of property (see B.K.M. Lojistik Tasimacilik Ticaret Limited Sirketi v. Slovenia, no. 42079/12, §§ 37-38, 17 January 2017 and S.C. Service Benz Com S.R.L. v. Romania, no. 58045/11, § 30, 4 July 2017 ).", "(b) Compliance with Article 1 of Protocol No. 1 to the Convention", "(i) General principles", "50. The Court reiterates that in order to be compatible with Article 1 of Protocol No. 1, an interference with the right of property must be effected “in the public interest” and “subject to the conditions provided for by law and by the general principles of international law”. The interference must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69 and 73, Series A no. 52, and S.C. Service Benz Com S.R.L., cited above, § 28).", "51. In so determining, the Court recognises that the State enjoys a wide margin of appreciation with regard to the means to be employed and to the question of whether the consequences are justified in the general interest for the purpose of achieving the objective pursued (see G.I.E.M. S.r.l. and Others v. Italy [GC], nos. 1828/06 and 2 others, §§ 292-93, 28 June 2018, with further references, and B.K.M. Lojistik Tasimacilik Ticaret Limited Sirketi, cited above, § 39). The requisite balance will not be found if the person or persons concerned have had to bear an individual and excessive burden (see, Sporrong and Lönnroth, cited above, § 73, and Waldemar Nowakowski v. Poland, no. 55167/11, § 47, 24 July 2012).", "(ii) Application to the present case", " In accordance with the law", "52. As to the question whether the interference with the applicant’s right of property was lawful, the Court notes that the impugned confiscation took place pursuant to the relevant provisions of GEO 23/2008, read in conjunction with the provisions of Article 118 of the CC (see paragraphs 33 and 34 above).", "53. Inasmuch as the applicant alleged a violation of the legality principle, by referring to the lack of jurisdiction of the Romanian courts (see paragraph 40 above), the Court observes that during the first set of proceedings, K.D. implicitly and the applicant expressly accepted that the offence had taken place within Romanian territorial waters, thus rendering Romanian legislation applicable (see paragraphs 12 and 14 above).", "54. Furthermore, the criminal proceedings ended on 30 March 2012 with K.D.’s conviction for the offence which had triggered the application of the security measure in respect of the applicant’s vessel. The conclusions drawn by the court to that effect became res judicata, the case being sent for retrial solely in relation to the need to examine the confiscation measure in adversarial proceedings in which the applicant would also be legally summoned to appear (see paragraph 18 above).", "55. Lastly, the Court notes that according to the documents in the file, the question whether the applicant raised the plea of lack of jurisdiction before the domestic courts within the second set of proceedings remains in doubt (see paragraphs 23 and 26 above). While it is true that the same plea was raised by K.D., the Court notes that it appears to have been implicitly dismissed by the courts once they established the scope and limits of the retrial proceedings (see paragraphs 20 and 27 above).", "56. The Court reiterates that, in any system of law, it is for the domestic courts to interpret the provisions of substantive criminal law in order to determine, by reference to the structure of each offence, if all the ingredients of the offence are present (see Plechkov v. Romania, no. 1660/03, § 70, 16 September 2014). It also underlines that it is not its role to examine and define the existence or the limits of the Romanian exclusive economic zone, or the obligations incumbent on Romania in relation to such a zone (see, mutatis mutandis, Plechkov, cited above, § 67).", "57. In view of the above, the Court sees no sign of arbitrariness in the interpretation in question concerning the applicable domestic law (see, mutatis mutandis, Beyeler v. Italy [GC], no. 33202/96, § 108, ECHR 2000 ‑ I), which remained reasonably foreseeable within the meaning of the Court’s case-law (see Lekić v. Slovenia [GC], no. 36480/07, § 95, 11 December 2018; and, albeit in the context of Article 7 of the Convention, Previti v. Italy (dec.), no. 45291/06, § 283, 8 December 2009).", "58. The Court concludes therefore that the interference was in accordance with the law.", " Legitimate aim", "59. The Court accepts that the interference complained of pursued the legitimate aim of preventing offences relating to illegal fishing in the Black Sea; since such activities pose a serious threat to the biological resources in the area, this aim serves the general interest.", " Proportionality", "60. As regards the striking of a fair balance between the means employed by the domestic authorities for the purpose of preventing criminal activities relating to illegal fishing in the Black Sea and the protection of the applicant’s property rights, the Court reiterates that such a balance depends on many factors, and the behaviour of the owner of the property is one element of the entirety of circumstances which should be taken into account (see AGOSI, cited above, § 54). The Court must consider whether the applicable procedures in the present case were such as to enable reasonable account to be taken of the degree of fault or care attributable to the applicant or, at least, of the relationship between his conduct and the breach of the law which occurred; and also whether the procedures in question afforded him a reasonable opportunity to put his case to the relevant authorities (ibid., § 55). In ascertaining whether these conditions were satisfied, a comprehensive view must be taken of the applicable procedures (see B.K.M. Lojistik Tasimacilik Ticaret Limited Sirketi, cited above, § 43).", "61. Turning to the facts of the case before it, the Court firstly notes that the vessel was confiscated in the context of the criminal proceedings against K.D., who declared that he was using it on the basis of a verbal agreement with the applicant (see paragraph 13 above). The latter was not accused in those proceedings, in which K.D. was convicted following a simplified procedure based on his acknowledgment of guilt (see paragraphs 12-18 above). In so far as the domestic courts considered that the confiscation measure had not been taken following an adversarial procedure because the applicant had not been summoned to appear in court, the proceedings started anew, in order to allow the owner of the vessel to submit any arguments and evidence he considered appropriate in relation to the measure in question (see paragraph 18 above).", "62. The new set of proceedings, which related to whether the seizure and confiscation were both lawful and free from arbitrariness, and in which the applicant was legally summoned and represented by a lawyer of his choice, were conducted adversarially, and the applicant had an opportunity to submit the evidence and arguments which he considered necessary to protect his interests. Moreover, no irrebuttable presumption was applied to his detriment. On the contrary, he could have proved his good faith, and that could have led to the restitution of his property (see, for instance and mutatis mutandis, Yildirim v. Italy (dec.), no. 38602/02, CEDH 2003-IV). Indeed, according to Article 118 § 1 (b) of the CC (see paragraph 34 above), whose provisions were eventually considered applicable by the Constanţa Court of Appeal (see paragraph 28 above), goods belonging to a third party could be confiscated only if the latter had been aware of the purpose of their use by the perpetrator.", "63. At the close of those proceedings, it was established by the domestic courts that the applicant must have been aware that the vessel had been used to commit the offence. In order to reach that conclusion, the appeal court attached relevance to the fact that the vessel did not have either a fishing permit or any authorisation for using fishing equipment. The presence on board of several instruments used specifically for illegal fishing, which were claimed by the applicant as his own possessions, constituted another indication of his bad faith (see paragraph 29 above). Nothing in the file suggests that the Romanian courts acted arbitrarily in their assessment of the evidence submitted to them by the applicant on that point.", "64. Furthermore, in balancing the rights at stake, the domestic courts referred to the gravity of the crime committed using the confiscated vessel, and held that forfeiture in the form of a monetary equivalent would not be an appropriate measure (see paragraph 30 above). In this context, the Court considers it relevant that the applicant failed to adduce proof before the domestic courts as to the value of the vessel, which allegedly was many times higher than any damage potentially caused (see paragraphs 10 and 41 above) and of the fact that the rental of the vessels was his only source of income (see paragraph 25 above). In connection with this, the Court cannot but observe that, due to its severe degree of depreciation, the vessel was ultimately sold for approximately EUR 1,900 (see paragraphs 31-32 above)", "65. The foregoing considerations are sufficient to enable the Court to conclude that, in view of the wide margin of appreciation enjoyed by the domestic authorities in this area, the confiscation of the applicant’s vessel did not impose an excessive burden on him.", "66. Accordingly, there has been no violation of Article 1 of Protocol No. 1 to the Convention." ]

[ "2. The applicant association was founded in 1992 and has its registered office in Sofia. It was represented by Mr A. Kashamov, a lawyer practising in Sofia.", "3. The Government were represented by their Agent, Ms V. Hristova, of the Ministry of Justice.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "The applicant association’s legal status", "5. The applicant association was registered as a non-profit legal person in 1992 in accordance with the Persons and Family Act 1949 (see paragraph 35 below). Its main goals were to work towards the resolution of environmental problems in Bulgaria and to disseminate information about the environment.", "6. On 1 January 2001 the Non-Profit Legal Persons Act 2000 came into force (“the 2000 Act”, see paragraph 36 below). It provided that legal entities registered under the previous regime were to preserve their legal status under the new law without the need to apply for new registration.", "7. In April 2005 the applicant association sought to be included in the Ministry of Justice’s central register of non-profit legal persons acting for the public benefit.", "8. In May 2005, citing the expiry of the three-year statutory time-limit for registration laid down in the 2000 Act (see paragraph 36 below), the Ministry of Justice refused the applicant association’s request for entry in the register.", "9. The applicant association remained registered only in the register of non-profit legal persons.", "Background", "10. The Kozloduy Nuclear Power Plant (“the KNPP”) is the only nuclear power plant in Bulgaria. It is a single-member joint-stock company whose shares are wholly owned by the State.", "11. The KNPP has six pressurised water reactors. The first four units were shut down between 2002 and 2006 as one of the preconditions for Bulgaria’s accession to the European Union (“the EU”). Units 5 and 6 came into operation in 1987 and 1991 respectively. In 2017 the service life of unit 5 was extended until 2027. In 2019 the operational licence for unit 6 was also extended until 2029.", "12. In July 2014, following a request made by the KNPP in the context of an investment proposal to extend the service life of units 5 and 6 of the nuclear power plant, the Minister of the Environment and Water decided that it was not necessary to carry out an environmental impact assessment in connection with the proposal.", "13. In August 2014 a non-governmental organisation, the Coalition for Sustainable Development (“the CSD”), sought judicial review of the Minister’s decision before the Supreme Administrative Court (“the SAC”).", "14. In February 2015 the applicant association requested leave to join the proceedings as an interested party.", "15. On 18 March 2015 a three-judge panel of the SAC declared that request inadmissible. The court noted that according to section 1, subsection 30, of the supplementing provisions of the Environmental Protection Act 2002 (“the EPA”; see paragraph 38 below), the Minister’s decision was an individual administrative act ( индивидуален административен акт ) and not a general administrative act ( общ административен акт ). Therefore, no third party could join the proceedings under Article 182 § 3 of the Code of Administrative Procedure 2006, invoked by the claimant (see paragraphs 45-46 below). Instead, the applicant association, which was to be regarded as being among the “members of the public concerned” ( засегната общественост ) within the meaning of section 1, subsections 24 and 25, of the supplementing provisions of the EPA (see paragraph 40 below), could have lodged an individual judicial review claim within fourteen days from the date of publication of the impugned decision (see paragraph 38 in fine below). The court found that, as that decision had been published on the Ministry’s website on 25 July 2014, at the time the applicant association’s request to intervene was lodged the fourteen-day time-limit for seeking judicial review had already expired.", "16. The applicant association did not appeal against that decision.", "17. On 28 October 2015 the three-judge panel of the SAC found that the Minister’s decision was lawful and dismissed the legal challenge brought by the CSD. It also ordered the CSD to pay 300 Bulgarian levs (BGN, approximately 150 euros (EUR)) for the Environment and Water Ministry’s legal representation by an in-house lawyer, and BGN 30,000 (approximately EUR 15,000) in costs incurred for the KNPP’s legal representation.", "18. The applicant association and the CSD lodged an appeal on points of law with a five-judge panel of the SAC.", "19. On 17 March 2016 a five-judge panel of the SAC found the applicant association’s appeal on points of law inadmissible. The court noted that the association had not taken part in the administrative proceedings. It had also failed to bring a separate judicial review claim under the EPA. Likewise, it had not been a party to the proceedings before the first-instance court, since its request to join those proceedings had been dismissed by the court. The applicant association had further failed to challenge the court’s decision of 18 March 2015 (see paragraphs 15-16 above) within the statutory time-limits. It therefore had no right to appeal on points of law against the first-instance judgment.", "20. On the merits, the SAC upheld the court’s ruling, fully agreeing with the three-judge panel as to the lawfulness of the Minister’s decision. It also went on to order the CSD to bear the costs incurred for the defendants’ legal representation in the cassation proceedings. It awarded the Ministry BGN 300 (approximately EUR 150) for its legal representation by an in-house lawyer, and awarded BGN 18,000 (approximately EUR 9,000) to the KNPP in respect of lawyer’s fees.", "Reopening Of THE proceedings", "21. On an unspecified date in 2016 the applicant association sought the reopening of the proceedings before a seven-judge panel of the SAC. Relying on Article 239 § 5 of the Code of Administrative Procedure 2006 (see paragraph 47 below), it submitted that its right of access to a court had been breached by the SAC’s refusal to admit its appeal on point of law for examination.", "22. On 29 September 2016 the SAC held a hearing in which it heard the parties without collecting new evidence. The applicant association’s lawyer argued that the association had been denied the right to lodge an appeal on points of law and to participate as a party to the proceedings concerning the Minister’s decision not to carry out an environmental impact assessment on extending the service life of the nuclear power plant’s reactors. That matter concerned the general public and the SAC had already accepted that the applicant association could be regarded as a member of the public concerned within the meaning of the EPA (see paragraphs 15 above and 40 below). Consequently, the association had a separate right to participate in the proceedings on points of law.", "23. The KNPP’s lawyer pleaded that the applicant association’s request for reopening was inadmissible. She also sought to be awarded the costs for the company’s legal representation in the proceedings for reopening initiated by the applicant association. In reply, the applicant association’s lawyer objected, arguing that the costs claimed were excessive. He pointed out that the subject matter of the proceedings concerned the citizens’ right to a clean and healthy environment and not the price of the nuclear power plant’s reactors. Allowing the costs claim as in main proceedings thus amounted to a direct violation of Article 6 of the Convention.", "24. On 24 October 2016 the seven-judge panel of the SAC dismissed the request for reopening. It noted that the applicant association’s request for leave to join the proceedings had been refused by the SAC’s decision of 18 March 2015 (see paragraph 15 above). Since that decision had not been appealed against it had become final. The issue with regard to the applicant association’s participation in the proceedings had thus been finally adjudicated and the ruling was binding on the courts in both the cassation proceedings and the proceedings for reopening. The court went on to state that no breach of the rules of procedure had occurred on the basis of which the applicant association could be considered to have been deprived of its right to take part in the proceedings.", "25. The SAC also ordered the applicant association to pay BGN 12,000 (approximately EUR 6,000) of the amount of BGN 24,000 (approximately EUR 12,000) claimed by the KNPP in lawyer’s fees for the reopening proceedings. It ordered the association to pay the minimum remuneration provided for in the Regulation, namely BGN 300 (approximately EUR 150; see paragraph 51 below) for the Ministry’s legal representation by an in ‑ house lawyer. In determining the amount of the costs, the SAC held:", "“Given the outcome of the case, the costs are to be borne by the claimant and should be awarded in favour of the defendants in accordance with the claims, submitted in a timely manner, in the amount of 300 Bulgarian levs – the minimum remuneration for a lawyer determined under the Regulation adopted pursuant to section 36, subsection 2 of the Bar Act – for the representation of the Ministry of the Environment and Water. The court finds the claimant’s objection to the allegedly excessive amount of the lawyer’s fees paid by the KNPP to be justified in view of the actual factual and legal complexity of the case, and accepts that they [the lawyer’s fees] should be awarded in the amount of 12,000 Bulgarian levs.”", "OTHER REQUESTs for Reopening of the ProceedIngs", "26. In two separate sets of proceedings the CSD also sought the reopening of the proceedings on the grounds that newly discovered evidence had emerged which could significantly alter the outcome of the case. The applicant association also took part in those proceedings, supporting the CSD’s requests.", "27. Both requests were rejected by a seven-judge panel of the SAC, on 14 July 2017 and 18 December 2017 respectively. In view of the outcome of the proceedings, in the first set of proceedings the SAC ordered the CSD to pay BGN 200 (approximately EUR 100) for the Ministry’s legal representation by an in-house lawyer, and BGN 5,000 (approximately EUR 2,500) of the amount of BGN 24,000 originally claimed by the nuclear power plant in costs for the KNPP’s legal representation.", "28. In the second set of proceedings the SAC awarded BGN 200 (approximately EUR 100) for the Ministry’ legal representation by an in-house lawyer, and BGN 2,000 (approximately EUR 1,000) of the amount of BGN 21,000 (approximately EUR 10,500) originally claimed by the nuclear power plant in costs for the KNPP’s legal representation.", "ENforcement proceedings against the Applicant associAtion", "29. Meanwhile, on 27 October 2016, at the request of the KNPP, the SAC issued a writ of execution against the applicant association for an amount of BGN 12,000 (approximately EUR 6,000).", "30. In December 2016 enforcement proceedings were opened against the applicant association. A bailiff collected a total sum of approximately BGN 34 (approximately EUR 17).", "31. On 26 April 2017 the bailiff scheduled a date for carrying out an inventory of the applicant association’s movable property.", "32. On 18 April 2018 the summons officer who was sent to deliver the notice for voluntary compliance recorded on the summons that the debtor association could not be found at its registered address and that the premises were occupied by a State institution.", "33. At the time of the latest information from the parties the enforcement proceedings against the applicant association were still pending." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "Domestic LAwThe Constitution", "The Constitution", "The Constitution", "34. The relevant provisions of the 1991 Constitution read as follows:", "Article 55", "“Citizens shall have the right to a healthy and favourable environment corresponding to the established standards and norms. They must preserve the environment.”", "Article 120", "“1. The courts shall review the lawfulness of the administrative authorities’ acts and decisions.", "2. Natural and legal persons shall have the right to seek judicial review of any administrative act or decision which affects them, save as expressly specified by statute.”", "Registration of associations", "35. Before the entry into force of the 2000 Act on 1 January 2001 the formation, registration, organisation, activities and winding-up of non ‑ profit legal persons such as associations and foundations was regulated by the Persons and Family Act 1949. An association acquired legal personality after its entry in the register kept by the relevant regional court.", "36. The 2000 Act (see paragraph 6 above), which superseded parts of the 1949 Persons and Family Act, provided for two categories of associations – those registered for the public benefit and those working for a private interest. Under paragraph 1 of the transitional and concluding provisions of the 2000 Act, non-profit legal persons which were registered under the previous regime retained their legal personality without being required to apply for new registration under the 2000 Act. Non-profit legal persons wishing to be designated as acting for the public benefit, a status which could give some tax advantages, had to submit an application for registration in the central register kept by the Ministry of Justice within three years from the entry into force of the 2000 Act. The status of non ‑ profit legal person working for the public benefit was to be acquired from the date of registration.", "37. If a non-profit legal person carried out activities in breach of the Constitution, the law and morals, it could be wound up by a decision of the regional court with territorial jurisdiction (section 13, subsection 3(b) of the 2002 Act).", "Proceedings under the Environmental Protection Act 2002", "38. At the material time, the provisions of the 2002 EPA provided that an environmental impact assessment was mandatory for all the schemes listed in a schedule to the Act (section 92, point 1). In other cases, an environmental impact assessment could be carried out after the competent authorities assessed the necessity for that (section 93(1)). In particular, in relation to investment proposals and their extension or amendment concerning sites designated by an act of the Council of Ministers as being of national importance, like the KNPP, the 2002 EPA provided that the assessment of the necessity was to be carried out by the Minister for the Environment and Water (section 93(2), point 4, and section 94(1), point 5). The Minister was to decide within one month from the submission of the investment proposal whether or not to carry out an environmental impact assessment. The Minister’s decision was an individual administrative act (paragraph 1, point 30 of the supplementing provisions), which had to be notified to the investor and made public. The persons concerned could seek judicial review before the SAC within fourteen days from notification of the decision (section 99(6)).", "39. The right of public participation in decision-making and the right of access to justice in environmental matters are recognised by section 3, subsections 4 and 11 of the EPA.", "40. Section 1, subsection 24 of the supplementing provisions defines “members of the public” as one or more natural or legal persons and their associations, organisations or groups established in accordance with the national law. Subsection 25 defines “the members of the public concerned” as the members of the public under subsection 24, including environmental non-governmental organisations established in accordance with the national legislation which are affected or are likely to be affected, or which have an interest in proceedings for the approval of plans, programmes and investment proposals, and in decisions on the issuance or updating of permits under the 2002 EPA or on the conditions laid down in such permits.", "Costs in judicial review proceedings", "41. Article 143 of the Code of Administrative Procedure 2006 (“the 2006 Code”) lays down a general cost-shifting rule in judicial review proceedings, namely that costs follow the event. According to the first paragraph of Article 143, if a court quashes an administrative decision or a public authority’s refusal to issue one, the costs of the litigation – court fees, the fees of one lawyer, and other expenses – must be borne by that authority. If, on the other hand, the court dismisses the claim for judicial review or the party which has brought it withdraws it, that party must bear all costs incurred in relation to the proceedings, including the minimum remuneration for one lawyer, determined in accordance with the regulation adopted under section 36(2) of the Bar Act 2004 (Article 143 § 4). In the latter case, the party in whose favour the administrative decision is given is also entitled to costs (Article 143 § 3).", "42. Under Article 144 of the 2006 Code, all matters not specifically dealt with in the part of the Code governing judicial review are governed by the Code of Civil Procedure.", "43. Article 78 § 1 of the Code of Civil Procedure 2007 provides that the expenses paid by the claimant – litigation costs and the fees of one lawyer – must be borne by the defendant in proportion to the part of the claim which was upheld. If the lawyer’s fees paid by a party are excessively high having regard to the legal and factual complexity of the case, the court may order the payment of a lower amount in respect of costs at the request of the opposing party, provided that the amount does not fall below the minimum amount set out in the Regulation on the minimum amounts of lawyers’ fees (Article 78 § 5).", "44. According to the case-law of the domestic courts, in cases where there are no grounds to reduce the amount of the costs awarded to the winning party’s legal representation, the court may order the payment of the entire amount paid by the party and is not obliged to adhere to the minimum amounts laid down in the Regulation (тълк. решение № 3 от 13.05.2010 г. по тълк. д. № 5/2009 г., ОСК на ВАС).", "Other relevant provisions of the 2006 Code", "45. Under the 2006 Code individual administrative acts may be challenged before a court, on grounds of unlawfulness, by the persons affected by them, within fourteen days from notification (Articles 145 § 1, 147 § 1 and 149 § 1).", "46. General administrative acts may be challenged within one month from notification or within fourteen days from the individual notification of the act to the persons who participated in the proceedings before the administrative body (Article 179). Anyone with a legal interest may join the judicial review challenge or intervene as a party alongside the administrative body, until the beginning of the oral pleadings (Article 182 § 3).", "47. The reopening of administrative judicial proceedings is permissible on the grounds that a party was deprived of the opportunity to participate in the proceedings as a result of a breach of the statutory rules or was not duly represented, or where the party was unable to appear in person to or be represented owing to an obstacle which it was unable to remove (Article 239 § 5).", "48. Administrative judicial proceedings may be reopened on a number of additional grounds such as the discovery of new evidence or a finding that a witness made false statements, or a document was forged (Article 239).", "The Bar Act 2004", "49. Section 36 of the Bar Act 2004 provides that the lawyer is entitled to remuneration for his or her work (subsection 1). The amount of the fees is to be determined by an agreement between the lawyer and the client. That amount must be fair and justified and may not be lower than the amount provided for in the Regulation issued by the Supreme Bar Council for the type of service concerned (subsection 2). The negotiation between the lawyer and his client of an amount lower than the fees provided for in the Regulation for the type of service concerned constitutes a disciplinary offence and may entail disciplinary liability on the part of the lawyer (section 132(5)).", "Regulation on the minimum amounts of lawyers’ fees", "50. The Regulation provides that the amount of remuneration for the lawyer’s legal assistance must be agreed freely on the basis of a written contract with the client but may not be lower than the minimum amount set forth by the Regulation for the corresponding service.", "51. At the material time the minimum lawyer’s fee for legal representation and legal assistance in civil cases concerning claims not subject to pecuniary assessment ( неоценяеми искове), which was also applicable to the amount of remuneration for an in-house lawyer, was fixed at BGN 300 (approximately EUR 150; section 7(1), point 4). Under section 1 of the supplementing provisions, which provided that for non-regulated matters the remuneration was to be fixed by analogy, that amount was likewise applicable to legal representation in judicial review proceedings concerning claims not relating to a specific pecuniary interest.", "52. The minimum fees applicable to a request for reopening of the proceedings were to be fixed at three-quarters of the minimum fees applicable to the main proceedings, but not less than BGN 300 (approximately EUR 150). If the lawyer had to attend a court hearing, the minimum fees could not be less than BGN 500 (approximately EUR 250; section 9(4)).", "53. In a judgment of 2 May 2017 a five-judge panel of the SAC upheld the three-judge panel’s ruling setting aside parts of the Regulation concerning the minimum remunerations in civil cases regarding claims involving pecuniary interests on the ground that the amounts of the minimum remuneration adopted by the Supreme Bar Council were calculated solely by reference to the pecuniary interest of the case (решение № 9273 от 27.07.2016 г. на ВАС по адм. д. № 3002/2015 г., потвърдено с решение № 5485 от 2.05.2017 г. на ВАС по адм. д. № 1403/2017 г., 5 ‑ членен с-в). The SAC found that, to be fair and justified, the minimum lawyer’s fees had to be based on two objective criteria: (i) the volume and the complexity of the work performed by the lawyer, and (ii) the value of the protected interest involved in the case ( величината на защитавания интерес ). An increase in the minimum lawyer’s fees as a result of an increase in the minimum wage in the country failed to consider the first criterion and therefore contravened section 36 of the Bar Act. In the SAC’s view, the right of the self-governing Bar Association to itself determine the minimum fees for lawyers’ work had to be balanced against the public interest. Hence, on the one hand, the highly responsible work of lawyers was not to be underestimated and made dependent on market mechanisms; on the other hand, its value must not be set at an unjustifiably high level such as to impede citizens’ and legal entities’ access to qualified legal assistance or to be an instrument enabling one party or the other to exert economic pressure in the proceedings. According to the SAC, that would negatively affect the rule of law (решение № 9273 от 27.07.2016 г. на ВАС по адм. д. № 3002/2015 г.).", "54. In several more recent judgments, the SAC confirmed its finding made in the judgment of 2 May 2017 (see paragraph 53 above) to the effect that the sums fixed in the Regulation were calculated only by reference to the pecuniary interest in the dispute and failed to take into consideration the actual volume and complexity of the work carried out by the lawyer. Accordingly, such fees could not be regarded as fair and justified as required by section 36(2) of the Bar Act. The courts were therefore called upon to assess the two above-mentioned criteria in each case so as not to allow unjust enrichment of the parties by awarding costs which were not fair and justified (see решение № 2800 от 26.02.2019 г. на ВАС по адм. д. № 5907/2018 г., решение № 2804 от 26.02.2019 г. на ВАС по адм. д. № 3781/2018 г., решение № 4408 от 14.04.2020 г. на ВАС по адм. д. № 7914/2019 г., решение № 5728 от 16.04.2019 г. на ВАС по адм. д. № 789/2018 г., решение № 3513 от 9.03.2020 г. на ВАС по адм. д. № 7400/2019 г.; решение № 5263 от 30.04.2020 г. на ВАС по адм. д. №15010/2018 г.).", "Average income in Bulgaria in 2017", "55. According to the National Statistics Institute of the Republic of Bulgaria, in 2017 average total annual income per capita was BGN 5,586 (approximately EUR 2,793).", "Relevant international legal materialS", "56. The United Nations Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (“the Aarhus Convention”) was adopted on 25 June 1998 and came into force on 30 October 2001. Bulgaria ratified the Convention in 2003. The Convention entered into force with respect to Bulgaria on 16 March 2004.", "57. The Aarhus Convention promotes public participation in decision ‑ making and access to justice concerning issues with an environmental impact. In particular, the relevant provisions which deal with access to justice in environmental matters may be found in Tătar v. Romania, no. 67021/01, 27 January 2009 and Austin v. the United Kingdom ((dec.), no. 39714/15, §§ 27-28, 12 September 2017).", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 1 of Protocol No. 1 to THE CONVENTION", "58. The applicant association complained that the allegedly excessive amount of the costs that the SAC had ordered it to pay for the legal representation of the KNPP, the successful respondent party in proceedings for reopening, was in breach of its right to peaceful enjoyment of its possessions. It relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "AdmissibilityArguments by the parties", "Arguments by the parties", "Arguments by the parties", "(a) The Government", "59. The Government submitted, in substance, that the complaint was incompatible ratione personae with the Convention since it was doubtful whether the applicant association had the legal personality to be considered a valid petitioner for the purposes of Article 34 of the Convention. They noted that the association had been refused entry in the register of non-profit legal persons acting for the public benefit (see paragraphs 7-9 and 36 above). There was no information about any public activities carried out by the applicant association beyond its participation in the impugned proceedings. The Government also referred to the fact that the applicant association’s registered address had been occupied by another organisation (see paragraph 32 above). In their view all these factors suggested that the applicant association had been wound up back in 2005.", "(b) The applicant association", "60. The applicant association contested the Government’s submissions. It referred to the 2002 Act, which provided that non-profit legal persons registered under the previous law retained their legal personality under the 2002 Act (see paragraph 36 above). It also submitted that non-profit legal persons were wound up by the courts and that no such proceedings had ever been brought against it. The applicant association pointed out that it was one of the first environmental organisations in Bulgaria to have actively participated in a number of court cases concerning environmental matters. In support of that argument the applicant association submitted a list of cases in which it had participated before the domestic courts.", "The Court’s assessment", "61. The Court observes that a legal entity “claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention and the Protocols thereto” may submit an application to it, provided that it is a non-governmental organisation within the meaning of Article 34 of the Convention ( Radio France and Others v. France (dec.), no. 53984/00, § 26, ECHR 2003 ‑ X (extracts). The Government contested that the applicant association had the required legal personality to do so. The Court notes that the applicant association participated in the domestic proceedings and that its legal personality has never previously been disputed. Nor its entry in the register of non-profit legal persons acting for the public benefit has any relation to its existence as a legal entity. Based on the documents in the case file it is evident that it continues to exist as a legal person and to take part in various environment-related proceedings. The Government did not provide any evidence that the applicant association had been wound up or been the subject of winding-up proceedings. There is no indication that the applicant association does no longer exist as a legal entity. Nor is there any indication that the applicant association does not qualify as a “non-governmental organisation” within the meaning of Article 34 of the Convention. The Court therefore rejects the Government’s objection as to the incompatibility ratione personae of the application.", "62. The Court further notes that the complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsArguments by the parties", "Arguments by the parties", "Arguments by the parties", "(a) The applicant association", "63. The applicant association submitted that the costs award made against it by the SAC in the proceedings for reopening had amounted to an interference with its right to peaceful enjoyment of its possessions. While that interference had been based on the rules on the allocation of costs laid down in Article 143 of the 2006 Code (see paragraph 41 above) and had pursued a legitimate aim, it had failed to strike a fair balance between the general interest of society and the individual’s fundamental rights. In particular, the national legislation did not provide for sufficient flexibility with regard to the allocation of costs, since the courts could not carry out an individual assessment depending on the particular circumstances and the conduct of the parties. Instead, the costs were shifted to the losing party, without taking into consideration the nature of the proceedings, the public interest involved, the party’s financial situation and whether that party had acted in good faith. Even if the courts allowed an objection under Article 78 § 5 of the Code of Civil Procedure (see paragraph 43 above), their assessment was subjective as there were no criteria on which to evaluate whether the lawyer’s fees were excessive. Furthermore, the costs incurred for legal representation could not be lower than the minimum amounts provided for in the Regulation (see paragraph 50 above). When the pecuniary interest involved in the case was high, the minimum remuneration laid down for the lawyer’s fees could become unsustainable for the party that had lost the case.", "64. The applicant association further argued that the KNPP had merely submitted a document showing that the fees due to the law office had been paid, but that it had been unclear how those fees had been calculated and what had been the value of the interest involved in the case. In comparison with the average total annual income of a Bulgarian citizen for 2017, which amounted to BGN 5,586 (approximately EUR 2,793; see paragraph 55 above), the amount of the costs award, even after its reduction by the court, had been excessive. The domestic court’s assessment had further fallen short by failing to consider that non-governmental organisations were called upon to exercise the functions of a public watchdog and to defend the public interest. As a result, the applicant association had suffered disproportionate interference with its rights under Article 1 of Protocol No. 1.", "(b) The Government", "65. The Government questioned whether an order for costs to be paid by a private party amounted to an interference and could therefore engage the responsibility of the State under Article 1 of Protocol No. 1 to the Convention, since the present case did not concern court fees regulated by the State. They submitted that even though the KNPP was owned by the State (see paragraph 10 above), it was a private company and did not exercise public powers. Therefore, the present case had to be distinguished from cases in which the Court had found a violation of Article 1 of Protocol No. 1 in relation to court fees due to the State in civil cases.", "66. If the costs order were to be regarded as an interference, the Government maintained that that interference had been lawful, had pursued a legitimate aim and had been proportionate to the aim in question. They pointed out that the “loser pays” principle was a general principle in litigation and was provided for in Article 143 § 3 of the 2006 Code. Those provisions were clear and predictable and the applicant association, which had been represented by a lawyer in the domestic proceedings, must have been familiar with them. They further argued that in the event of inadmissible or unfounded claims the award of costs pursued the legitimate aims, on the one hand, of discharging the winning party of the incurred costs and, on the other hand, of imposing discipline on individuals and legal entities on pain of bearing the costs, so that the judicial system was not overloaded with obviously inadmissible or unfounded claims.", "67. The Government also submitted that the courts enjoyed discretion when awarding litigation costs. The objection under Article 78 § 5 of the Code of Civil Procedure, examined in the light of the factual and legal complexity of the case, and the possibility for the courts to reduce the amount to the minimum remuneration provided for in the Regulation, were the safeguards afforded to the unsuccessful party in the proceedings. The costs award was also limited to the fees for one lawyer. In the Government’s opinion, by allowing the applicant association’s objection and reducing the amount of the costs, the SAC had made a fair and proportionate costs award which had corresponded to the legal assistance provided to the KNPP and had compensated the nuclear power plant for the costs it had actually incurred. Lastly, the Government pointed out that there was no indication that the applicant association had actually paid in whole or in part the litigation costs that had been ordered.", "The Court’s assessment", "(a) Whether there was an interference", "68. The Court reiterates that Article 1 of Protocol No. 1, which guarantees the right to the protection of property, contains three distinct rules: “the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest ... The three rules are not, however, ‘distinct’ in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule” (see Anheuser ‑ Busch Inc. v. Portugal [GC], no. 73049/01, § 62, ECHR 2007-I, with further references).", "69. The Court notes that the applicant association’s complaint concerns a costs order issued against it by the court in proceedings for reopening obliging it to pay for the legal representation of the respondent party. In this regard, it observes that the Commission previously found that costs of a judicial procedure are “contributions” within the meaning of the second paragraph of Article 1 of Protocol No. 1 (see X. and Y. v. Austria, no. 7909/74, Commission decision of 12 October 1978, DR 15, p.160; Agis Antoniades v. the United Kingdom, no. 15434/89, Commission decision of 15 February 1990, DR 64 p. 237; and Aires v. Portugal, no. 21775/93, Commission decision of 25 May 1995, DR 81, p. 48; see also Eder v. Germany (dec.), no. 11816/02, 13 October 2005 and Hoare v. the United Kingdom (dec.), no. 16261/08, § 50, 12 April 2011). This approach, with regard to court fees, was confirmed in Perdigão v. Portugal ([GC], no. 24768/06, § 61, 16 November 2010), where the Grand Chamber held that the obligation to pay court fees – and the corresponding regulations – was covered by the second paragraph of Article 1 of Protocol No. 1.", "70. In several cases which followed Perdigão, cited above, the Court has examined a court order to defray the costs of the other party as an interference with the right to the peaceful enjoyment of possessions which falls within the general rule set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see Hoare, decision cited above, § 51; Cindrić and Bešlić v. Croatia, no. 72152/13, § 92, 6 September 2016; and Musa Tarhan v. Turkey, no. 12055/17, §§ 72-73, 23 October 2018). In Cindrić and Bešlić (cited above, § 92) it further distinguished between costs related to the court system as such, and costs incurred by the winning party and due under the “loser pays” rule, indicating that only the former were to be included in the notion of “contributions” within the meaning of the second paragraph of Article 1 of Protocol No. 1.", "71. The Court notes that in the present case the costs award against the applicant association issued by the SAC concerned the lawyer’s fees incurred for the legal representation of the respondent party. Those costs were not related to the court system as such but were ordered in favour of the successful party in the proceedings. Thus, their reimbursement is not a contribution within the meaning of the second paragraph of Article 1 (see Cindrić and Bešlić, cited above, § 92). That being so, the Court finds that it will be more appropriate to address the costs award against the applicant association as an interference in the light of the general rule under the first sentence of the first paragraph of Article 1 of Protocol No. 1.", "72. Finally, regardless under which rule of Article 1 of Protocol No.1 the complaint is examined, the principles governing the question of justification are substantially the same, involving as they do the need for the interference to be lawful and in the public interest, and to strike a fair balance between the demands of the general interest and the applicant association’s rights (see Denisova and Moiseyeva v. Russia, no. 16903/03, § 55, 1 April 2010).", "(b) Whether the interference was lawful", "73. The first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of someone’s possessions should be lawful (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999 ‑ II). The costs award made by the SAC was based on Article 143 of the 2006 Code (see paragraph 41 above) and Article 78 § 5 of the Code of Civil Procedure (see paragraph 43 above). These provisions regulated the general cost-shifting rule in administrative proceedings and the discretion of the court to order the payment of a lower amount for costs at the request of the losing party if that court considered that the fees were excessively high. While the applicant association did not dispute that the costs award had a legal basis in the national legislation, it argued that the national legislation lacked flexibility (see paragraph 63 above). In the Court’s view, this question should more properly be examined under the heading of proportionality. It thus concludes that the costs order was lawful.", "(c) Whether the interference pursued a legitimate aim", "74. Any interference with a right of property, irrespective of the rule under which it falls, must have a legitimate aim (see, mutatis mutandis, Hoare, decision cited above, § 59). The Court has already held that costs are a well ‑ established feature of the justice system (ibid., § 59) and that the purpose of the “loser pays” rule is to avoid unwarranted litigation and unreasonably high litigation costs by dissuading potential plaintiffs from bringing unfounded actions without bearing the consequences. It thus pursues the legitimate aim of ensuring the proper administration of justice and protecting the rights of others and cannot in itself be regarded as contrary to Article 1 of Protocol No. 1 (see Klauz v. Croatia, no. 28963/10, § 84, 18 July 2013; Cindrić and Bešlić, cited above, § 96; and Musa Tarhan, cited above, § 80). Accordingly, the costs order in the present case pursued a legitimate aim.", "(d) Whether the interference was proportionate to the legitimate aim pursued", "75. It remains to be determined whether the measure complained of was proportionate to the legitimate aim pursued. Any interference with the right to peaceful enjoyment of possessions must achieve a fair balance between the demands of the general interest of the community and the requirement of protecting the individual’s fundamental rights (see Beyeler v. Italy [GC], no. 33203/96, § 107, ECHR 2000-I; Hoare, decision cited above, § 60; Cindrić and Bešlić, cited above, § 98).", "76. The Court notes that in the instant case the applicant association not only challenged the manner in which the SAC had determined the amount of the costs award, alleging that it had been unfair and unjustified, but also disagreed with the Government that the applicable legal framework afforded sufficient flexibility to the national courts with regard to costs orders (see paragraph 63 above).", "77. In this connection the Court reiterates that it is not its task to review the relevant legislation in the abstract but rather to examine the relevant domestic law in so far as the applicants objected to its consequences for their property rights (see The Holy Monasteries v. Greece, 9 December 1994, § 55, Series A no. 301 ‑ A; Scordino v. Italy (no. 1) [GC], no. 36813/97, § 100, ECHR 2006 ‑ V; and Kostov and Others v. Bulgaria, nos. 66581/12 and 25054/15, §§ 77 and 86, 14 May 2020).", "78. From that perspective, the Court notes that costs in administrative litigation in Bulgaria are regulated in accordance with the “loser pays” rule or the “costs follow the event” principle (see paragraph 41 above). Under this principle the unsuccessful party in the proceedings has to pay the successful party’s costs. This rule is counterbalanced by two safeguards laid down in the Bulgarian legislation. On the one hand, Article 78 § 5 of the Code of Civil Procedure entitles the losing party to object to the amount of the lawyer’s fees on the grounds that they were excessive. The competent court then has to assess the amount in the light of the actual legal and factual complexity of the case. If it allows the objection, the court may reduce the costs award, but cannot order an amount lower than the minimum amount provided for in the Regulation (see paragraph 43 above).", "79. On the other hand, while the Bar Act enshrines the principle of freedom of contract, it likewise requires that the remuneration for the lawyer’s work be fair and justified (see paragraph 49 above). The SAC explained this provision – albeit in a judgment given after the request for reopening lodged by the applicant association – by stating that, to be fair and justified, the minimum lawyer’s fees had to be based on two objective criteria: (i) the volume and the complexity of the work performed by the lawyer, and (ii) the value of the interest involved in the case (see paragraph 53 above).", "80. The Court observes that in the present case the applicant association’s request for reopening of the proceedings was dismissed. In line with that outcome, the SAC ordered the association to pay the successful parties’ litigation costs: BGN 300 (approximately EUR 150) for the legal representation of the Ministry and BGN 12,000 (approximately EUR 6,000) for the legal representation of the KNPP. In determining these amounts, the seven-judge panel of the SAC took into account the following factors: (i) the objection raised by the applicant association’s lawyer under Article 78 § 5 of the Code of Civil Procedure regarding the allegedly excessive amount of the lawyer’s fees, and (ii) the legal and factual complexity of the case (see paragraph 25 above).", "81. It is evident from its judgment that the SAC calculated the costs order in favour of the Ministry by reference to the minimum remuneration provided for in the Regulation (see paragraphs 25, 51-52 above). However, save for the reference to the legal and factual complexity of the case, the ruling did not specify the way in which the SAC had evaluated the costs in favour of the KNPP and why it had ultimately awarded half of the amount sought (that is, BGN 12,000 (approximately EUR 6,000) of the amount of BGN 24,000 (approximately EUR 12,000) claimed by it, see paragraph 25 above).", "82. From the documents in the case file it transpires that the fees charged to the KNPP by the law office engaged in the proceedings were incurred for the following work: a reply to the applicant association’s request for reopening, and legal representation before the SAC. In this regard, the Court notes that the statutory minimum remuneration at the material time for legal assistance in proceedings for reopening, including attendance at a court hearing, was fixed at BGN 500 (approximately EUR 250; see paragraph 52 above). The Court cannot disregard the fact that the costs order in favour of the KNPP was twenty-four times above the minimum remuneration set out in the Regulation. While it seems that the main proceedings did involve more complex legal and factual issues, the SAC did not provide any detailed explanation for its assessment of the complexity of the proceedings for reopening. In this context the Court observes that the proceedings were initiated by the applicant association on the ground that its right to participation in the cassation proceedings had allegedly been breached (see paragraphs 21-22 above). This legal issue was of a procedural nature, does not appear to be particularly complex and had to some extent already been dealt with by the SAC in the main proceedings (see paragraph 19 above). The court also provided no reference to any method of calculation of the lawyers’ fees and consequently of their reasonableness in the specific case. The proceedings did not involve the collection of new evidence and the SAC held only one hearing (see paragraph 24 above). Moreover, in the two ensuing requests for reopening lodged by another non-governmental organisation, the CSD, the SAC awarded much lower sums in lawyer’s fees to the KNPP, namely BGN 5,000 (approximately EUR 2,500) and BGN 2,000 (approximately EUR 1,000; see paragraphs 27-28 above).", "83. The Court acknowledges that States should be accorded a wide margin of appreciation in regulating their systems of allocation of costs in judicial proceedings (see, mutatis mutandis, Perdigão, cited above, § 70). Indeed, as already noted, Bulgarian legislation provides for a mechanism allowing a degree of review of the proportionality of the litigation costs (see paragraphs 78-79 above). However, in the present case the SAC applied those rules without giving sufficient consideration to the specific circumstances of the applicant association’s case, especially the fact that the amount of the costs award had been substantial and that in the light of the complexity of the reopening proceedings and the volume of the legal work carried out, the costs order for one level of jurisdiction did not appear reasonable (compare with Hoare, decision cited above, § 60). Thus, by awarding such an amount in costs for the lawyer’s fees of the opposing party, without providing sufficient and relevant reasons so as to ensure that those fees were actually fair and justified as required by domestic law, the SAC failed to properly balance the various interests at stake. Consequently, the applicant association suffered an individual and excessive burden which upset the requisite fair balance between the general interest of society and the individual’s fundamental rights.", "84. There has therefore been a violation of Article 1 of Protocol No. 1.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "85. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "86. The applicant association claimed non-pecuniary damage for the distress suffered as a result of the ongoing enforcement proceedings in relation to the costs award. It did not specify an amount, leaving the matter to the Court’s discretion.", "87. The Government contested the claim, arguing that according to the Court’s case-law no award was to be made in the absence of a formal claim.", "88. As to compensation for non-pecuniary damage, the Court has already held that damage other than pecuniary damage sustained by a legal entity may include aspects that are to a greater or lesser extent “objective” or “subjective”. These aspects include the legal entity’s reputation, but also uncertainty in decision-planning, disruption in the management of the legal entity itself (for which there is no precise method of calculating the consequences) and lastly, albeit to a lesser degree, the anxiety and inconvenience caused to the members of the management team (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 182, 29 November 2016). Having regard to the circumstances of the case and its case-law (see, mutatis mutandis, Cindrić and Bešlić, cited above, § 127), and making its assessment on an equitable basis, the Court awards the applicant association EUR 3,000 under this head, plus any tax that may be chargeable on that amount.", "Costs and expenses", "89. The applicant association also sought reimbursement of EUR 1,890 in lawyer’s fees incurred before the domestic court and the Court. It also claimed BGN 400 for the translation into English of the observations and claims made on its behalf. In support of its claim, the applicant association submitted a fee agreement with its legal representative and a time-sheet.", "90. The Government contested the above amounts. They pointed out that the costs incurred before the domestic court were not to be reimbursed. They further submitted that the claim for the translation work was not supported by any documents. They also disputed the number of hours spent by the applicant association’s legal representative on the case and the amount of the lawyer’s fees, which in their view was excessive.", "91. According to the Court’s settled case-law, costs and expenses are recoverable under Article 41 of the Convention if it is established that they were actually and necessarily incurred and are reasonable as to quantum.", "92. In the present case the Court notes that it has found a violation of the applicant association’s right under Article 1 of Protocol No. 1, resulting from the excessive costs award made against it by the SAC in the proceedings for reopening. That violation has been found in respect of the costs order in favour of the winning party and does not concern the expenses incurred by the applicant association in connection with its own legal representation. The Court therefore considers that the costs and expenses incurred before the domestic court were not related to the violation found and that the applicant association is not entitled to them.", "93. However, it considers it reasonable to award the applicant association the sum of EUR 1,500 for the proceedings before the Court, plus any tax that may be chargeable on that amount. As regards the claim for translation expenses, the Court notes that the applicant association did not submit any supporting documents. Accordingly, it rejects the claim under that head.", "Default interest", "94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant is a 43-year-old woman. She resides with her husband of twenty-five years, their daughter and granddaughter. The applicant suffers from motor neurone disease (MND). This is a progressive neuro-degenerative disease of motor cells within the central nervous system. The disease is associated with progressive muscle weakness affecting the voluntary muscles of the body. As a result of the progression of the disease, severe weakness of the arms and legs and the muscles involved in the control of breathing are affected. Death usually occurs as a result of weakness of the breathing muscles, in association with weakness of the muscles controlling speaking and swallowing, leading to respiratory failure and pneumonia. No treatment can prevent the progression of the disease.", "8. The applicant's condition has deteriorated rapidly since MND was diagnosed in November 1999. The disease is now at an advanced stage. She is essentially paralysed from the neck down, has virtually no decipherable speech and is fed through a tube. Her life expectancy is very poor, measurable only in weeks or months. However, her intellect and capacity to make decisions are unimpaired. The final stages of the disease are exceedingly distressing and undignified. As she is frightened and distressed at the suffering and indignity that she will endure if the disease runs its course, she very strongly wishes to be able to control how and when she dies and thereby be spared that suffering and indignity.", "9. Although it is not a crime to commit suicide under English law, the applicant is prevented by her disease from taking such a step without assistance. It is however a crime to assist another to commit suicide (section 2(1) of the Suicide Act 1961).", "10. Intending that she might commit suicide with the assistance of her husband, the applicant's solicitor asked the Director of Public Prosecutions (DPP), in a letter dated 27 July 2001 written on her behalf, to give an undertaking not to prosecute the applicant's husband should he assist her to commit suicide in accordance with her wishes.", "11. In a letter dated 8 August 2001, the DPP refused to give the undertaking:", "“Successive Directors – and Attorneys General – have explained that they will not grant immunities that condone, require, or purport to authorise or permit the future commission of any criminal offence, no matter how exceptional the circumstances. ...”", "12. On 20 August 2001 the applicant applied for judicial review of the DPP's decision and the following relief:", "– an order quashing the DPP's decision of 8 August 2001;", "– a declaration that the decision was unlawful or that the DPP would not be acting unlawfully in giving the undertaking sought;", "– a mandatory order requiring the DPP to give the undertaking sought; or alternatively", "– a declaration that section 2 of the Suicide Act 1961 was incompatible with Articles 2, 3, 8, 9 and 14 of the Convention.", "13. On 17 October 2001 the Divisional Court refused the application, holding that the DPP did not have the power to give the undertaking not to prosecute and that section 2(1) of the Suicide Act 1961 was not incompatible with the Convention.", "14. The applicant appealed to the House of Lords. They dismissed her appeal on 29 November 2001 and upheld the judgment of the Divisional Court. In giving the leading judgment in The Queen on the Application of Mrs Dianne Pretty (Appellant) v. Director of Public Prosecutions (Respondent) and Secretary of State for the Home Department (Interested Party), Lord Bingham of Cornhill held:", "“1. No one of ordinary sensitivity could be unmoved by the frightening ordeal which faces Mrs Dianne Pretty, the appellant. She suffers from motor neurone disease, a progressive degenerative illness from which she has no hope of recovery. She has only a short time to live and faces the prospect of a humiliating and distressing death. She is mentally alert and would like to be able to take steps to bring her life to a peaceful end at a time of her choosing. But her physical incapacity is now such that she can no longer, without help, take her own life. With the support of her family, she wishes to enlist the help of her husband to that end. He himself is willing to give such help, but only if he can be sure that he will not be prosecuted under section 2(1) of the Suicide Act 1961 for aiding and abetting her suicide. Asked to undertake that he would not under section 2(4) of the Act consent to the prosecution of Mr Pretty under section 2(1) if Mr Pretty were to assist his wife to commit suicide, the Director of Public Prosecutions has refused to give such an undertaking. On Mrs Pretty's application for judicial review of that refusal, the Queen's Bench Divisional Court upheld the Director's decision and refused relief. Mrs Pretty claims that she has a right to her husband's assistance in committing suicide and that section 2 of the 1961 Act, if it prohibits his helping and prevents the Director undertaking not to prosecute if he does, is incompatible with the European Convention on Human Rights. It is on the Convention, brought into force in this country by the Human Rights Act 1998, that Mrs Pretty's claim to relief depends. It is accepted by her counsel on her behalf that under the common law of England she could not have hoped to succeed.", "2. In discharging the judicial functions of the House, the appellate committee has the duty of resolving issues of law properly brought before it, as the issues in this case have been. The committee is not a legislative body. Nor is it entitled or fitted to act as a moral or ethical arbiter. It is important to emphasise the nature and limits of the committee's role, since the wider issues raised by this appeal are the subject of profound and fully justified concern to very many people. The questions whether the terminally ill, or others, should be free to seek assistance in taking their own lives, and if so in what circumstances and subject to what safeguards, are of great social, ethical and religious significance and are questions on which widely differing beliefs and views are held, often strongly. Materials laid before the committee (with its leave) express some of those views; many others have been expressed in the news media, professional journals and elsewhere. The task of the committee in this appeal is not to weigh or evaluate or reflect those beliefs and views or give effect to its own but to ascertain and apply the law of the land as it is now understood to be.", "Article 2 of the Convention", "3. Article 2 of the Convention provides: ...", "The Article is to be read in conjunction with Articles 1 and 2 of the Sixth Protocol, which are among the Convention rights protected by the 1998 Act (see section 1(1)(c)) and which abolished the death penalty in time of peace.", "4. On behalf of Mrs Pretty it is submitted that Article 2 protects not life itself but the right to life. The purpose of the Article is to protect individuals from third parties (the State and public authorities). But the Article recognises that it is for the individual to choose whether or not to live and so protects the individual's right to self-determination in relation to issues of life and death. Thus a person may refuse life-saving or life-prolonging medical treatment, and may lawfully choose to commit suicide. The Article acknowledges that right of the individual. While most people want to live, some want to die, and the Article protects both rights. The right to die is not the antithesis of the right to life but the corollary of it, and the State has a positive obligation to protect both.", "5. The Secretary of State has advanced a number of unanswerable objections to this argument which were rightly upheld by the Divisional Court. The starting point must be the language of the Article. The thrust of this is to reflect the sanctity which, particularly in western eyes, attaches to life. The Article protects the right to life and prevents the deliberate taking of life save in very narrowly defined circumstances. An Article with that effect cannot be interpreted as conferring a right to die or to enlist the aid of another in bringing about one's own death. In his argument for Mrs Pretty, Mr Havers QC was at pains to limit his argument to assisted suicide, accepting that the right claimed could not extend to cover an intentional consensual killing (usually described in this context as'voluntary euthanasia', but regarded in English law as murder). The right claimed would be sufficient to cover Mrs Pretty's case and counsel's unwillingness to go further is understandable. But there is in logic no justification for drawing a line at this point. If Article 2 does confer a right to self-determination in relation to life and death, and if a person were so gravely disabled as to be unable to perform any act whatever to cause his or her own death, it would necessarily follow in logic that such a person would have a right to be killed at the hands of a third party without giving any help to the third party and the State would be in breach of the Convention if it were to interfere with the exercise of that right. No such right can possibly be derived from an Article having the object already defined.", "6. It is true that some of the guaranteed Convention rights have been interpreted as conferring rights not to do that which is the antithesis of what there is an express right to do. Article 11, for example, confers a right not to join an association ( Young, James and Webster v. United Kingdom (1981) 4 EHRR 38), Article 9 embraces a right to freedom from any compulsion to express thoughts or change an opinion or divulge convictions (Clayton and Tomlinson, The Law of Human Rights (2000), p. 974, para. 14.49) and I would for my part be inclined to infer that Article 12 confers a right not to marry (but see Clayton and Tomlinson, ibid., p. 913, para. 13.76). It cannot however be suggested (to take some obvious examples) that Articles 3, 4, 5 and 6 confer an implied right to do or experience the opposite of that which the Articles guarantee. Whatever the benefits which, in the view of many, attach to voluntary euthanasia, suicide, physician-assisted suicide and suicide assisted without the intervention of a physician, these are not benefits which derive protection from an Article framed to protect the sanctity of life.", "7. There is no Convention authority to support Mrs Pretty's argument. To the extent that there is any relevant authority it is adverse to her. In Osman v. United Kingdom (1998) 29 EHRR 245 the applicants complained of a failure by the United Kingdom to protect the right to life of the second applicant and his deceased father. At p. 305 the court said:", "' 115. The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State's obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.", "116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention.'", "The context of that case was very different. Neither the second applicant nor his father had had any wish to die. But the court's approach to Article 2 was entirely consistent with the interpretation I have put upon it.", "8. X v. Germany (1984) 7 EHRR 152 and Keenan v. United Kingdom (App. No. 27229/95; 3 April 2001, unreported) were also decided in a factual context very different from the present. X, while in prison, had gone on hunger strike and had been forcibly fed by the prison authorities. His complaint was of maltreatment contrary to Article 3 of the Convention, considered below. The complaint was rejected and in the course of its reasoning the commission held (at pp. 153-154):", "' In the opinion of the Commission forced feeding of a person does involve degrading elements which in certain circumstances may be regarded as prohibited by Art. 3 of the Convention. Under the Convention the High Contracting Parties are, however, also obliged to secure to everyone the right to life as set out in Art. 2. Such an obligation should in certain circumstances call for positive action on the part of the Contracting Parties, in particular an active measure to save lives when the authorities have taken the person in question into their custody. When, as in the present case, a detained person maintains a hunger strike this may inevitably lead to a conflict between an individual's right to physical integrity and the High Contracting Party's obligation under Art. 2 of the Convention – a conflict which is not solved by the Convention itself. The Commission recalls that under German law this conflict has been solved in that it is possible to force-feed a detained person if this person, due to a hunger strike, would be subject to injuries of a permanent character, and the forced feeding is even obligatory if an obvious danger for the individual's life exists. The assessment of the above-mentioned conditions is left for the doctor in charge but an eventual decision to force-feed may only be carried out after judicial permission has been obtained ... The Commission is satisfied that the authorities acted solely in the best interests of the applicant when choosing between either respect for the applicant's will not to accept nourishment of any kind and thereby incur the risk that he might be subject to lasting injuries or even die, or to take action with a view to securing his survival although such action might infringe the applicant's human dignity.'", "In Keenan a young prisoner had committed suicide and his mother complained of a failure by the prison authorities to protect his life. In the course of its judgment rejecting the complaint under this Article the court said (at p. 29, para. 90):", "' In the context of prisoners, the Court has had previous occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them. It is incumbent on the State to account for any injuries suffered in custody, which obligation is particularly stringent where that individual dies ... It may be noted that this need for scrutiny is acknowledged in the domestic law of England and Wales, where inquests are automatically held concerning the deaths of persons in prison and where the domestic courts have imposed a duty of care on prison authorities in respect of those detained in their custody.'", "Both these cases can be distinguished, since the conduct complained of took place when the victim was in the custody of the State, which accordingly had a special responsibility for the victim's welfare. It may readily be accepted that the obligation of the State to safeguard the life of a potential victim is enhanced when the latter is in the custody of the State. To that extent these two cases are different from the present, since Mrs Pretty is not in the custody of the State. Thus the State's positive obligation to protect the life of Mrs Pretty is weaker than in such cases. It would however be a very large, and in my view quite impermissible, step to proceed from acceptance of that proposition to acceptance of the assertion that the State has a duty to recognise a right for Mrs Pretty to be assisted to take her own life.", "9. In the Convention field the authority of domestic decisions is necessarily limited and, as already noted, Mrs Pretty bases her case on the Convention. But it is worthy of note that her argument is inconsistent with two principles deeply embedded in English law. The first is a distinction between the taking of one's own life by one's own act and the taking of life through the intervention or with the help of a third party. The former has been permissible since suicide ceased to be a crime in 1961. The latter has continued to be proscribed. The distinction was very clearly expressed by Hoffmann LJ in Airedale NHS Trust v. Bland [1993] AC 789 at 831:", "' No one in this case is suggesting that Anthony Bland should be given a lethal injection. But there is concern about ceasing to supply food as against, for example, ceasing to treat an infection with antibiotics. Is there any real distinction? In order to come to terms with our intuitive feelings about whether there is a distinction, I must start by considering why most of us would be appalled if he was given a lethal injection. It is, I think, connected with our view that the sanctity of life entails its inviolability by an outsider. Subject to exceptions like self-defence, human life is inviolate even if the person in question has consented to its violation. That is why although suicide is not a crime, assisting someone to commit suicide is. It follows that, even if we think Anthony Bland would have consented, we would not be entitled to end his life by a lethal injection.'", "The second distinction is between the cessation of life-saving or life-prolonging treatment on the one hand and the taking of action lacking medical, therapeutic or palliative justification but intended solely to terminate life on the other. This distinction provided the rationale of the decisions in Bland. It was very succinctly expressed in the Court of Appeal in In re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33, in which Lord Donaldson of Lymington MR said, at p. 46:", "' What doctors and the court have to decide is whether, in the best interests of the child patient, a particular decision as to medical treatment should be taken which as a side effect will render death more or less likely. This is not a matter of semantics. It is fundamental. At the other end of the age spectrum, the use of drugs to reduce pain will often be fully justified, notwithstanding that this will hasten the moment of death. What can never be justified is the use of drugs or surgical procedures with the primary purpose of doing so.'", "Similar observations were made by Balcombe LJ at p. 51 and Taylor LJ at p. 53. While these distinctions are in no way binding on the European Court of Human Rights there is nothing to suggest that they are inconsistent with the jurisprudence which has grown up around the Convention. It is not enough for Mrs Pretty to show that the United Kingdom would not be acting inconsistently with the Convention if it were to permit assisted suicide; she must go further and establish that the United Kingdom is in breach of the Convention by failing to permit it or would be in breach of the Convention if it did not permit it. Such a contention is in my opinion untenable, as the Divisional Court rightly held.", "Article 3 of the Convention", "10. Article 3 of the Convention provides: ...", "This is one of the Articles from which a member State may not derogate even in time of war or other public emergency threatening the life of the nation: see Article 15. I shall for convenience use the expression'proscribed treatment'to mean'inhuman or degrading treatment'as that expression is used in the Convention.", "11. In brief summary the argument for Mrs Pretty proceeded by these steps.", "(1) Member States have an absolute and unqualified obligation not to inflict the proscribed treatment and also to take positive action to prevent the subjection of individuals to such treatment: A. v. United Kingdom (1998) 27 EHRR 611; Z v. United Kingdom [2001] 2 FLR 612 at 631, para. 73.", "(2) Suffering attributable to the progression of a disease may amount to such treatment if the State can prevent or ameliorate such suffering and does not do so: D. v. United Kingdom (1997) 24 EHRR 423, at pp. 446-449, paras. 46-54.", "(3) In denying Mrs Pretty the opportunity to bring her suffering to an end the United Kingdom (by the Director) will subject her to the proscribed treatment. The State can spare Mrs Pretty the suffering which she will otherwise endure since, if the Director undertakes not to give his consent to prosecution, Mr Pretty will assist his wife to commit suicide and so she will be spared much suffering.", "(4) Since, as the Divisional Court held, it is open to the United Kingdom under the Convention to refrain from prohibiting assisted suicide, the Director can give the undertaking sought without breaking the United Kingdom's obligations under the Convention.", "(5) If the Director may not give the undertaking, section 2 of the 1961 Act is incompatible with the Convention.", "12. For the Secretary of State it was submitted that in the present case Article 3 of the Convention is not engaged at all but that if any of the rights protected by that Article are engaged they do not include a right to die. In support of the first of these submissions it was argued that there is in the present case no breach of the prohibition in the Article. The negative prohibition in the Article is absolute and unqualified but the positive obligations which flow from it are not absolute: see Osman v. United Kingdom, above; Rees v. United Kingdom (1986) 9 EHRR 56. While States may be obliged to protect the life and health of a person in custody (as in the case of Keenan, above), and to ensure that individuals are not subjected to proscribed treatment at the hands of private individuals other than State agents (as in A. v. United Kingdom, above), and the State may not take direct action in relation to an individual which would inevitably involve the inflicting of proscribed treatment upon him ( D. v. United Kingdom (1997) 24 EHRR 423), none of these obligations can be invoked by Mrs Pretty in the present case. In support of the second submission it was argued that, far from suggesting that the State is under a duty to provide medical care to ease her condition and prolong her life, Mrs Pretty is arguing that the State is under a legal obligation to sanction a lawful means for terminating her life. There is nothing, either in the wording of the Convention or the Strasbourg jurisprudence, to suggest that any such duty exists by virtue of Article 3. The decision how far the State should go in discharge of its positive obligation to protect individuals from proscribed treatment is one for member States, taking account of all relevant interests and considerations; such a decision, while not immune from review, must be accorded respect. The United Kingdom has reviewed these issues in depth and resolved to maintain the present position.", "13. Article 3 enshrines one of the fundamental values of democratic societies and its prohibition of the proscribed treatment is absolute: D. v. United Kingdom (1997) 24 EHRR 423 at p. 447, para. 47. Article 3 is, as I think, complementary to Article 2. As Article 2 requires States to respect and safeguard the lives of individuals within their jurisdiction, so Article 3 obliges them to respect the physical and human integrity of such individuals. There is in my opinion nothing in Article 3 which bears on an individual's right to live or to choose not to live. That is not its sphere of application; indeed, as is clear from X v. Germany above, a State may on occasion be justified in inflicting treatment which would otherwise be in breach of Article 3 in order to serve the ends of Article 2. Moreover, the absolute and unqualified prohibition on a member State inflicting the proscribed treatment requires that'treatment'should not be given an unrestricted or extravagant meaning. It cannot, in my opinion, be plausibly suggested that the Director or any other agent of the United Kingdom is inflicting the proscribed treatment on Mrs Pretty, whose suffering derives from her cruel disease.", "14. The authority most helpful to Mrs Pretty is D. v. United Kingdom (1997) 24 EHRR 423, which concerned the removal to St Kitts of a man in the later stages of AIDS. The Convention challenge was to implementation of the removal decision having regard to the applicant's medical condition, the absence of facilities to provide adequate treatment, care or support in St Kitts and the disruption of a regime in the United Kingdom which had afforded him sophisticated treatment and medication in a compassionate environment. It was held that implementation of the decision to remove the applicant to St Kitts would amount in the circumstances to inhuman treatment by the United Kingdom in violation of Article 3. In that case the State was proposing to take direct action against the applicant, the inevitable effect of which would be a severe increase in his suffering and a shortening of his life. The proposed deportation could fairly be regarded as'treatment'. An analogy might be found in the present case if a public official had forbidden the provision to Mrs Pretty of pain-killing or palliative drugs. But here the proscribed treatment is said to be the Director's refusal of proleptic immunity from prosecution to Mr Pretty if he commits a crime. By no legitimate process of interpretation can that refusal be held to fall within the negative prohibition of Article 3.", "15. If it be assumed that Article 3 is capable of being applied at all to a case such as the present, and also that on the facts there is no arguable breach of the negative prohibition in the Article, the question arises whether the United Kingdom (by the Director) is in breach of its positive obligation to take action to prevent the subjection of individuals to proscribed treatment. In this context, the obligation of the State is not absolute and unqualified. So much appears from the passage quoted in paragraph 7 above from the judgment of the European Court of Human Rights in Osman v. United Kingdom. The same principle was acknowledged by the court in Rees v. United Kingdom (1986) 9 EHRR 56 where it said in para. 37 of its judgment at pp. 63-64:", "' 37. As the Court pointed out in its above-mentioned Abdulaziz, Cabales and Balkandali judgment the notion of “respect” is not clear-cut, especially as far as those positive obligations are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case.", "These observations are particularly relevant here. Several States have, through legislation or by means of legal interpretation or by administrative practice, given transsexuals the option of changing their personal status to fit their newly-gained identity. They have, however, made this option subject to conditions of varying strictness and retained a number of express reservations (for example, as to previously incurred obligations). In other States, such an option does not – or does not yet – exist. It would therefore be true to say that there is at present little common ground between the Contracting States in this area and that, generally speaking, the law appears to be in a transitional stage. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation.", "In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention. In striking this balance the aims mentioned in the second paragraph of Article 8 may be of a certain relevance, although this provision refers in terms only to “interferences” with the right protected by the first paragraph – in other words is concerned with the negative obligations flowing therefrom.'", "That was an Article 8 case, dealing with a very different subject matter from the present, but the court's observations were of more general import. It stands to reason that while States may be absolutely forbidden to inflict the proscribed treatment on individuals within their jurisdictions, the steps appropriate or necessary to discharge a positive obligation will be more judgmental, more prone to variation from State to State, more dependent on the opinions and beliefs of the people and less susceptible to any universal injunction. For reasons more fully given in paragraphs 27 and 28 below, it could not in my view be said that the United Kingdom is under a positive obligation to ensure that a competent, terminally ill, person who wishes but is unable to take his or her own life should be entitled to seek the assistance of another without that other being exposed to the risk of prosecution.", "Article 8 of the Convention", "16. Article 8 of the Convention provides: ...", "17. Counsel for Mrs Pretty submitted that this Article conferred a right to self-determination: see X and Y v. Netherlands (1985) 8 EHRR 235; Rodriguez v. Attorney General of Canada [1994] 2 LRC 136; In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147. This right embraces a right to choose when and how to die so that suffering and indignity can be avoided. Section 2(1) of the 1961 Act interferes with this right of self-determination: it is therefore for the United Kingdom to show that the interference meets the Convention tests of legality, necessity, responsiveness to pressing social need and proportionality: see R. v. A. (No. 2) [2001] 2 WLR 1546; Johansen v. Norway (1996) 23 EHRR 33; R. (P) v. Secretary of State for the Home Department [2001] 1 WLR 2002. Where the interference is with an intimate part of an individual's private life, there must be particularly serious reasons to justify the interference: Smith and Grady v. United Kingdom (1999) 29 EHRR 493 at p. 530, para. 89. The court must in this case rule whether it could be other than disproportionate for the Director to refuse to give the undertaking sought and, in the case of the Secretary of State, whether the interference with Mrs Pretty's right to self-determination is proportionate to whatever legitimate aim the prohibition on assisted suicide pursues. Counsel placed particular reliance on certain features of Mrs Pretty's case: her mental competence, the frightening prospect which faces her, her willingness to commit suicide if she were able, the imminence of death, the absence of harm to anyone else, the absence of far-reaching implications if her application were granted. Counsel suggested that the blanket prohibition in section 2(1), applied without taking account of particular cases, is wholly disproportionate, and the materials relied on do not justify it. Reference was made to R. v. United Kingdom (1983) 33 DR 270 and Sanles v. Spain [2001] EHRLR 348.", "18. The Secretary of State questioned whether Mrs Pretty's rights under Article 8 were engaged at all, and gave a negative answer. He submitted that the right to private life under Article 8 relates to the manner in which a person conducts his life, not the manner in which he departs from it. Any attempt to base a right to die on Article 8 founders on exactly the same objection as the attempt based on Article 2, namely, that the alleged right would extinguish the very benefit on which it is supposedly based. Article 8 protects the physical, moral and psychological integrity of the individual, including rights over the individual's own body, but there is nothing to suggest that it confers a right to decide when or how to die. The Secretary of State also submitted that, if it were necessary to do so, section 2(1) of the 1961 Act and the current application of it could be fully justified on the merits. He referred to the margin of judgment accorded to member States, the consideration which has been given to these questions in the United Kingdom and the broad consensus among Convention countries. Attention was drawn to Laskey, Jaggard and Brown v. United Kingdom (1997) 24 EHRR 39 in which the criminalisation of consensual acts of injury was held to be justified; it was suggested that the justification for criminalising acts of consensual killing or assisted suicide must be even stronger.", "19. The most detailed and erudite discussion known to me of the issues in the present appeal is to be found in the judgments of the Supreme Court of Canada in Rodriguez v. Attorney General of Canada [1994] 2 LRC 136. The appellant in that case suffered from a disease legally indistinguishable from that which afflicts Mrs Pretty; she was similarly disabled; she sought an order which would allow a qualified medical practitioner to set up technological means by which she might, by her own hand but with that assistance from the practitioner, end her life at a time of her choosing. While suicide in Canada was not a crime, section 241(b) of the Criminal Code was in terms effectively identical to section 2(1) of the 1961 Act. The appellant based her claims on the Canadian Charter of Rights and Freedoms which, so far as relevant, included the following sections:", "' (1) The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.", "(7) Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.", "(12) Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.", "(15) (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.'", "The trial judge rejected Ms Rodriguez'claim, because (as his judgment was summarised at p. 144):", "' It was the illness from which Ms Rodriguez suffers, not the State or the justice system, which has impeded her ability to act on her wishes with respect to the timing and manner of her death.'", "He found no breach of section 12 and said:", "' To interpret section 7 so as to include a constitutionally guaranteed right to take one's own life as an exercise in freedom of choice is inconsistent, in my opinion, with life, liberty and the security of the person.'", "He also held that section 241 did not discriminate against the physically disabled.", "20. The British Columbia Court of Appeal held by a majority (at p. 148) that whilst the operation of section 241 did deprive Ms Rodriguez of her section 7 right to the security of her person, it did not contravene the principles of fundamental justice. McEachern CJ, dissenting, held (at p. 146) that there was a prima facie violation of section 7 when the State imposed prohibitions that had the effect of prolonging the physical and psychological suffering of a person, and that any provision that imposed an indeterminate period of senseless physical and psychological suffering on someone who was shortly to die anyway could not conform with any principle of fundamental justice.", "21. In the Supreme Court opinion was again divided. The judgment of the majority was given by Sopinka J, with La Forest, Gonthier, Iacobucci and Major JJ concurring. In the course of his judgment Sopinka J said (at p. 175):", "' As a threshold issue, I do not accept the submission that the appellant's problems are due to her physical disabilities caused by her terminal illness, and not by governmental action. There is no doubt that the prohibition in section 241(b) will contribute to the appellant's distress if she is prevented from managing her death in the circumstances which she fears will occur.'", "He continued (p. 175):", "' I find more merit in the argument that security of the person, by its nature, cannot encompass a right to take action that will end one's life as security of the person is intrinsically concerned with the well-being of the living person.'", "He then continued (at pp. 177-178):", "' There is no question, then, that personal autonomy, at least with respect to the right to make choices concerning one's own body, control over one's physical and psychological integrity, and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these. The effect of the prohibition in section 241(b) is to prevent the appellant from having assistance to commit suicide when she is no longer able to do so on her own ... In my view, these considerations lead to the conclusion that the prohibition in section 241(b) deprives the appellant of autonomy over her person and causes her physical pain and psychological stress in a manner which impinges on the security of her person. The appellant's security interest (considered in the context of the life and liberty interest) is therefore engaged, and it is necessary to determine whether there has been any deprivation thereof that is not in accordance with the principles of fundamental justice.'", "He concluded (at p. 189) that:", "' Given the concerns about abuse that have been expressed and the great difficulty in creating appropriate safeguards to prevent these, it can not be said that the blanket prohibition on assisted suicide is arbitrary or unfair, or that it is not reflective of fundamental values at play in our society.'", "With reference to section 1 of the Canadian Charter, Sopinka J said (at pp. 192-193):", "' As I have sought to demonstrate in my discussion of section 7, this protection is grounded on a substantial consensus among western countries, medical organisations and our own Law Reform Commission that in order to effectively protect life and those who are vulnerable in society, a prohibition without exception on the giving of assistance to commit suicide is the best approach. Attempts to fine-tune this approach by creating exceptions have been unsatisfactory and have tended to support the theory of the “slippery slope”. The formulation of safeguards to prevent excesses has been unsatisfactory and has failed to allay fears that a relaxation of the clear standard set by the law will undermine the protection of life and will lead to abuse of the exception.'", "He rejected the appellant's claims under sections 12 and 15.", "22. Lamer CJ dissented in favour of the appellant, but on grounds of discrimination under section 15 alone. McLachlin J (with whom L'Heureux-Dubé J concurred) found a violation not of section 15 but of section 7. She saw the case as one about the manner in which the State might limit the right of a person to make decisions about her body under section 7 of the charter (p. 194). At p. 195 she said:", "' In the present case, Parliament has put into force a legislative scheme which does not bar suicide but criminalises the act of assisting suicide. The effect of this is to deny to some people the choice of ending their lives solely because they are physically unable to do so. This deprives Sue Rodriguez of her security of the person (the right to make decisions concerning her own body, which affect only her own body) in a way that offends the principles of fundamental justice, thereby violating section 7 of the Charter ... It is part of the persona and dignity of the human being that he or she have the autonomy to decide what is best for his or her body.'", "She held (p. 197) that", "' it does not accord with the principles of fundamental justice that Sue Rodriguez be disallowed what is available to others merely because it is possible that other people, at some other time, may suffer, not what she seeks, but an act of killing without true consent.'", "Cory J also dissented, agreeing with Lamer CJ and also McLachlin J.", "23. It is evident that all save one of the judges of the Canadian Supreme Court were willing to recognise section 7 of the Canadian charter as conferring a right to personal autonomy extending even to decisions on life and death. Mrs Pretty understandably places reliance in particular on the judgment of McLachlin J, in which two other members of the court concurred. But a majority of the court regarded that right as outweighed on the facts by the principles of fundamental justice. The judgments were moreover directed to a provision with no close analogy in the European Convention. In the European Convention the right to liberty and security of the person appears only in Article 5 § 1, on which no reliance is or could be placed in the present case. Article 8 contains no reference to personal liberty or security. It is directed to the protection of privacy, including the protection of physical and psychological integrity: X and Y v. Netherlands, above. But Article 8 is expressed in terms directed to protection of personal autonomy while individuals are living their lives, and there is nothing to suggest that the Article has reference to the choice to live no longer.", "24. There is no Strasbourg jurisprudence to support the contention of Mrs Pretty. In R. v. United Kingdom (1983) 33 DR 270 the applicant had been convicted and sentenced to imprisonment for aiding and abetting suicide and conspiring to do so. He complained that his conviction and sentence under section 2 of the 1961 Act constituted a violation of his right to respect for his private life under Article 8 and also his right to free expression under Article 10. In paragraph 13 of its decision the commission observed:", "' The Commission does not consider that the activity for which the applicant was convicted, namely aiding and abetting suicide, can be described as falling into the sphere of his private life in the manner elaborated above. While it might be thought to touch directly on the private lives of those who sought to commit suicide, it does not follow that the applicant's rights to privacy are involved. On the contrary, the Commission is of the opinion that the acts of aiding, abetting, counselling or procuring suicide are excluded from the concept of privacy by virtue of their trespass on the public interest of protecting life, as reflected in the criminal provisions of the 1961 Act.'", "This somewhat tentative expression of view is of some assistance to Mrs Pretty, but with reference to the claim under Article 10 the commission continued (in para. 17 of its decision at p. 272):", "' The Commission considers that, in the circumstances of the case, there has been an interference with the applicant's right to impart information. However, the Commission must take account of the State's legitimate interest in this area in taking measures to protect, against criminal behaviour, the life of its citizens particularly those who belong to especially vulnerable categories by reason of their age or infirmity. It recognises the right of the State under the Convention to guard against the inevitable criminal abuses that would occur, in the absence of legislation, against the aiding and abetting of suicide. The fact that in the present case the applicant and his associate appear to have been well intentioned does not, in the Commission's view, alter the justification for the general policy.'", "That conclusion cannot be reconciled with the suggestion that the prohibition of assisted suicide is inconsistent with the Convention.", "25. Sanles v. Spain [2001] EHRLR 348 arose from a factual situation similar to the present save that the victim of disabling disease had died and the case never culminated in a decision on the merits. The applicant was the sister-in-law of the deceased and was held not to be a victim and thus not to be directly affected by the alleged violations. It is of some interest that she based her claims on Articles 2, 3, 5, 9 and 14 of the Convention but not, it seems, on Article 8.", "26. I would for my part accept the Secretary of State's submission that Mrs Pretty's rights under Article 8 are not engaged at all. If, however, that conclusion is wrong, and the prohibition of assisted suicide in section 2 of the 1961 Act infringes her Convention right under Article 8, it is necessary to consider whether the infringement is shown by the Secretary of State to be justifiable under the terms of Article 8 § 2. In considering that question I would adopt the test advocated by counsel for Mrs Pretty, which is clearly laid down in the authorities cited.", "27. Since suicide ceased to be a crime in 1961, the question whether assisted suicide also should be decriminalised has been reviewed on more than one occasion. The Criminal Law Revision Committee in its Fourteenth Report (1980, Cmnd 7844) reported some divergence of opinion among its distinguished legal membership, and recognised a distinction between assisting a person who had formed a settled intention to kill himself and the more heinous case where one person persuaded another to commit suicide, but a majority was of the clear opinion that aiding and abetting suicide should remain an offence (pp. 60-61, para. 135).", "28. Following the decision in Airedale NHS Trust v. Bland [1993] AC 789 a much more broadly constituted House of Lords Select Committee on Medical Ethics received extensive evidence and reported. The Committee in its report (HL 21-1, 1994, p. 11, para. 26) drew a distinction between assisted suicide and physician-assisted suicide but its conclusion was unambiguous (p. 54, para. 262):", "' As far as assisted suicide is concerned, we see no reason to recommend any change in the law. We identify no circumstances in which assisted suicide should be permitted, nor do we see any reason to distinguish between the act of a doctor or of any other person in this connection.'", "The government in its response (May 1994, Cm 2553) accepted this recommendation:", "' We agree with this recommendation. As the Government stated in its evidence to the Committee, the decriminalisation of attempted suicide in 1961 was accompanied by an unequivocal restatement of the prohibition of acts calculated to end the life of another person. The Government can see no basis for permitting assisted suicide. Such a change would be open to abuse and put the lives of the weak and vulnerable at risk.'", "A similar approach is to be found in the Council of Europe's Recommendation 1418 (1999) on the protection of the human rights and dignity of the terminally ill and the dying. This included the following passage (at pp. 2-4):", "' 9. The Assembly therefore recommends that the Committee of Ministers encourage the member States of the Council of Europe to respect and protect the dignity of terminally ill or dying persons in all respects: ...", "(c) by upholding the prohibition against intentionally taking the life of terminally ill or dying persons, while:", "(i) recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member States, in accordance with Article 2 of the European Convention on Human Rights which states that “no one shall be deprived of his life intentionally”;", "(ii) recognising that a terminally ill or dying person's wish to die never constitutes any legal claim to die at the hand of another person;", "(iii) recognising that a terminally ill or dying person's wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death.'", "It would be by no means fatal to the legal validity of section 2(1) of the 1961 Act if the response of the United Kingdom to this problem of assisted suicide were shown to be unique, but it is shown to be in accordance with a very broad international consensus. Assisted suicide and consensual killing are unlawful in all Convention countries except the Netherlands, but even if the Dutch Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2001 and the Dutch Criminal Code were operative in this country it would not relieve Mr Pretty of liability under Article 294 of the Dutch Criminal Code if he were to assist Mrs Pretty to take her own life as he would wish to do.", "29. On behalf of Mrs Pretty counsel disclaims any general attack on section 2(1) of the 1961 Act and seeks to restrict his claim to the particular facts of her case: that of a mentally competent adult who knows her own mind, is free from any pressure and has made a fully informed and voluntary decision. Whatever the need, he submits, to afford legal protection to the vulnerable, there is no justification for a blanket refusal to countenance an act of humanity in the case of someone who, like Mrs Pretty, is not vulnerable at all. Beguiling as that submission is, Dr Johnson gave two answers of enduring validity to it. First,'Laws are not made for particular cases but for men in general.'Second,'To permit a law to be modified at discretion is to leave the community without law. It is to withdraw the direction of that public wisdom by which the deficiencies of private understanding are to be supplied'(Boswell, Life of Johnson, Oxford Standard Authors, 3rd ed., 1970, at pp. 735, 496). It is for member States to assess the risk and likely incidence of abuse if the prohibition on assisted suicide were relaxed, as the commission recognised in its decision in R. v. United Kingdom quoted above in paragraph 24. But the risk is one which cannot be lightly discounted. The Criminal Law Revision Committee recognised how fine was the line between counselling and procuring on the one hand and aiding and abetting on the other (report, p. 61, para. 135). The House of Lords Select Committee recognised the undesirability of anything which could appear to encourage suicide (report, p. 49, para. 239):", "' We are also concerned that vulnerable people – the elderly, lonely, sick or distressed – would feel pressure, whether real or imagined, to request early death. We accept that, for the most part, requests resulting from such pressure or from remediable depressive illness would be identified as such by doctors and managed appropriately. Nevertheless we believe that the message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life.'", "It is not hard to imagine that an elderly person, in the absence of any pressure, might opt for a premature end to life if that were available, not from a desire to die or a willingness to stop living, but from a desire to stop being a burden to others.", "30. If section 2(1) infringes any Convention right of Mrs Pretty, and recognising the heavy burden which lies on a member State seeking to justify such an infringement, I conclude that the Secretary of State has shown ample grounds to justify the existing law and the current application of it. That is not to say that no other law or application would be consistent with the Convention; it is simply to say that the present legislative and practical regime do not offend the Convention.", "Article 9 of the Convention", "31. It is unnecessary to recite the terms of Article 9 of the Convention, to which very little argument was addressed. It is an Article which protects freedom of thought, conscience and religion and the manifestation of religion or belief in worship, teaching, practice or observance. One may accept that Mrs Pretty has a sincere belief in the virtue of assisted suicide. She is free to hold and express that belief. But her belief cannot found a requirement that her husband should be absolved from the consequences of conduct which, although it would be consistent with her belief, is proscribed by the criminal law. And if she were able to establish an infringement of her right, the justification shown by the State in relation to Article 8 would still defeat it.", "Article 14 of the Convention", "32. Article 14 of the Convention provides: ...", "Mrs Pretty claims that section 2(1) of the 1961 Act discriminates against those who, like herself, cannot because of incapacity take their own lives without assistance. She relies on the judgment of the European Court of Human Rights in Thlimmenos v. Greece (2000) 31 EHRR 411 where the court said (at p. 424, para. 44):", "' The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification. However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.'", "33. The European Court of Human Rights has repeatedly held that Article 14 is not autonomous but has effect only in relation to Convention rights. As it was put in Van Raalte v. Netherlands (1997) 24 EHRR 503 at p. 516, para. 33:", "' As the Court has consistently held, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter.'", "See also Botta v. Italy (1998) 26 EHRR 241 at p. 259, para. 39.", "34. If, as I have concluded, none of the Articles on which Mrs Pretty relies gives her the right which she has claimed, it follows that Article 14 would not avail her even if she could establish that the operation of section 2(1) is discriminatory. A claim under this Article must fail on this ground.", "35. If, contrary to my opinion, Mrs Pretty's rights under one or other of the Articles are engaged, it would be necessary to examine whether section 2(1) of the 1961 Act is discriminatory. She contends that the section is discriminatory because it prevents the disabled, but not the able-bodied, exercising their right to commit suicide. This argument is in my opinion based on a misconception. The law confers no right to commit suicide. Suicide was always, as a crime, anomalous, since it was the only crime with which no defendant could ever be charged. The main effect of the criminalisation of suicide was to penalise those who attempted to take their own lives and failed, and secondary parties. Suicide itself (and with it attempted suicide) was decriminalised because recognition of the common law offence was not thought to act as a deterrent, because it cast an unwarranted stigma on innocent members of the suicide's family and because it led to the distasteful result that patients recovering in hospital from a failed suicide attempt were prosecuted, in effect, for their lack of success. But while the 1961 Act abrogated the rule of law whereby it was a crime for a person to commit (or attempt to commit) suicide, it conferred no right on anyone to do so. Had that been its object there would have been no justification for penalising by a potentially very long term of imprisonment one who aided, abetted, counselled or procured the exercise or attempted exercise by another of that right. The policy of the law remained firmly adverse to suicide, as section 2(1) makes clear.", "36. The criminal law cannot in any event be criticised as objectionably discriminatory because it applies to all. Although in some instances criminal statutes recognise exceptions based on youth, the broad policy of the criminal law is to apply offence-creating provisions to all and to give weight to personal circumstances either at the stage of considering whether or not to prosecute or, in the event of conviction, when penalty is to be considered. The criminal law does not ordinarily distinguish between willing victims and others: Laskey Jaggard and Brown v. United Kingdom (1997) 24 EHRR 39. Provisions criminalising drunkenness or misuse of drugs or theft do not exempt those addicted to alcohol or drugs, or the poor and hungry.'Mercy killing', as it is often called, is in law killing. If the criminal law sought to proscribe the conduct of those who assisted the suicide of the vulnerable, but exonerated those who assisted the suicide of the non-vulnerable, it could not be administered fairly and in a way which would command respect.", "37. For these reasons, which are in all essentials those of the Divisional Court, and in agreement with my noble and learned friends Lord Steyn and Lord Hope of Craighead, I would hold that Mrs Pretty cannot establish any breach of any Convention right.", "The claim against the Director", "38. That conclusion makes it strictly unnecessary to review the main ground on which the Director resisted the claim made against him: that he had no power to grant the undertaking which Mrs Pretty sought.", "39. I would for my part question whether, as suggested on his behalf, the Director might not if so advised make a public statement on his prosecuting policy other than in the Code for Crown Prosecutors which he is obliged to issue by section 10 of the Prosecution of Offences Act 1985. Plainly such a step would call for careful consultation and extreme circumspection, and could be taken only under the superintendence of the Attorney General (by virtue of section 3 of the 1985 Act). The Lord Advocate has on occasion made such a statement in Scotland, and I am not persuaded that the Director has no such power. It is, however, unnecessary to explore or resolve that question, since whether or not the Director has the power to make such a statement he has no duty to do so, and in any event what was asked of the Director in this case was not a statement of prosecuting policy but a proleptic grant of immunity from prosecution. That, I am quite satisfied, the Director had no power to give. The power to dispense with and suspend laws and the execution of laws without the consent of Parliament was denied to the crown and its servants by the Bill of Rights 1688. Even if, contrary to my opinion, the Director had power to give the undertaking sought, he would have been very wrong to do so in this case. If he had no reason for doubting, equally he had no means of investigating, the assertions made on behalf of Mrs Pretty. He received no information at all concerning the means proposed for ending Mrs Pretty's life. No medical supervision was proposed. The obvious risk existed that her condition might worsen to the point where she could herself do nothing to bring about her death. It would have been a gross dereliction of the Director's duty and a gross abuse of his power had he ventured to undertake that a crime yet to be committed would not lead to prosecution. The claim against him must fail on this ground alone.", "40. I would dismiss this appeal.”", "15. The other judges concurred with his conclusions. Lord Hope stated as regarded Article 8 of the Convention:", "“100. ... Respect for a person's'private life', which is the only part of Article 8 which is in play here, relates to the way a person lives. The way she chooses to pass the closing moments of her life is part of the act of living, and she has a right to ask that this too must be respected. In that respect Mrs Pretty has the right of self-determination. In that sense, her private life is engaged even where in the face of terminal illness she seeks to choose death rather than life. But it is an entirely different thing to imply into these words a positive obligation to give effect to her wish to end her own life by means of an assisted suicide. I think that to do so would be to stretch the meaning of the words too far.”", "i. recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member States, in accordance with Article 2 of the European Convention on Human Rights which states that'no one shall be deprived of his life intentionally';", "ii. recognising that a terminally ill or dying person's wish to die never constitutes any legal claim to die at the hand of another person;", "iii. recognising that a terminally ill or dying person's wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death.”", "IV. THIRD-PARTY INTERVENTIONS", "A. Voluntary Euthanasia Society", "25. The Voluntary Euthanasia Society, established in 1935 and being a leading research organisation in the United Kingdom on issues related to assisted dying, submitted that as a general proposition individuals should have the opportunity to die with dignity and that an inflexible legal regime that had the effect of forcing an individual, who was suffering unbearably from a terminal illness, to die a painful protracted death with indignity, contrary to his or her express wishes, was in breach of Article 3 of the Convention. They referred to the reasons why persons requested assisted deaths (for example unrelieved and severe pain, weariness of the dying process, loss of autonomy). Palliative care could not meet the needs of all patients and did not address concerns of loss of autonomy and loss of control of bodily functions.", "26. They submitted that in comparison with other countries in Europe the regime in England and Wales, which prohibited assisted dying in absolute terms, was the most restrictive and inflexible in Europe. Only Ireland compared. Other countries (for example Belgium, Switzerland, Germany, France, Finland, Sweden and the Netherlands, where assistance must be sought from a medical practitioner) had abolished the specific offence of assisting suicide. In other countries, the penalties for such offences had been downgraded – in no country, save Spain, did the maximum penalty exceed five years'imprisonment – and criminal proceedings were rarely brought.", "27. As regarded public-policy issues, they submitted that whatever the legal position, voluntary euthanasia and assisted dying took place. It was well known in England and Wales that patients asked for assistance to die and that members of the medical profession and relatives provided that assistance, notwithstanding that it might be against the criminal law and in the absence of any regulation. As recognised by the Netherlands government, therefore, the criminal law did not prevent voluntary euthanasia or assisted dying. The situation in the Netherlands indicated that in the absence of regulation slightly less than 1% of deaths were due to doctors having ended the life of a patient without the latter explicitly requesting this (non-voluntary euthanasia). Similar studies indicated a figure of 3.1% in Belgium and 3.5% in Australia. It might therefore be the case that less attention was given to the requirements of a careful end-of-life practice in a society with a restrictive legal approach than in one with an open approach that tolerated and regulated euthanasia. The data did not support the assertion that, in institutionalising voluntary euthanasia/physician-assisted suicide, society put the vulnerable at risk. At least with a regulated system, there was the possibility of far greater consultation and a reporting mechanism to prevent abuse, along with other safeguards, such as waiting periods.", "B. Catholic Bishops'Conference of England and Wales", "28. This organisation put forward principles and arguments which it stated were consonant with those expressed by other Catholic bishops'conferences in other member States.", "29. They emphasised that it was a fundamental tenet of the Catholic faith that human life was a gift from God received in trust. Actions with the purpose of killing oneself or another, even with consent, reflected a damaging misunderstanding of the human worth. Suicide and euthanasia were therefore outside the range of morally acceptable options in dealing with human suffering and dying. These fundamental truths were also recognised by other faiths and by modern pluralist and secular societies, as shown by Article 1 of the Universal Declaration of Human Rights (December 1948) and the provisions of the European Convention on Human Rights, in particular in Articles 2 and 3 thereof.", "30. They pointed out that those who attempted suicide often suffered from depression or other psychiatric illness. The 1994 report of the New York State Task Force on Life and Law concluded on that basis that the legalising of any form of assisted suicide or any form of euthanasia would be a mistake of historic proportions, with catastrophic consequences for the vulnerable and an intolerable corruption of the medical profession. Other research indicated that many people who requested physician-assisted suicide withdrew that request if their depression and pain were treated. In their experience, palliative care could in virtually every case succeed in substantially relieving a patient of physical and psychosomatic suffering.", "31. The House of Lords Select Committee on Medical Ethics (1993-94) had solid reasons for concluding, after consideration of the evidence (on a scale vastly exceeding that available in these proceedings), that any legal permission for assistance in suicide would result in massive erosion of the rights of the vulnerable, flowing from the pressure of legal principle and consistency and the psychological and financial conditions of medical practice and health-care provision in general. There was compelling evidence to suggest that once a limited form of euthanasia was permitted under the law it was virtually impossible to confine its practice within the necessary limits to protect the vulnerable (see, for example, the Netherlands government's study of deaths in 1990, recording cases of euthanasia without the patients'explicit request)." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Suicide, assisted suicide and consensual killing", "16. Suicide ceased to be a crime in England and Wales by virtue of the Suicide Act 1961. However, section 2(1) of the Act provides:", "“A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.”", "Section 2(4) provides:", "“No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.”", "17. Case-law has established that an individual may refuse to accept life-prolonging or life-preserving treatment:", "“First it is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so ... To this extent, the principle of the sanctity of human life must yield to the principle of self-determination ...” (Lord Goff in Airedale NHS Trust v. Bland [1993] AC 789, at p. 864)", "18. This principle has been most recently affirmed in Ms B. v. an NHS Hospital, Court of Appeal judgment of 22 March 2002. It has also been recognised that “dual effect” treatment can be lawfully administered, that is treatment calculated to ease a patient's pain and suffering which might also, as a side-effect, shorten their life expectancy (see, for example, Re J [1991] Fam 3).", "B. Domestic review of the legislative position", "19. In March 1980 the Criminal Law Revision Committee issued its fourteenth report, “Offences against the Person” (Cmnd 7844), in which it reviewed, inter alia, the law relating to the various forms of homicide and the applicable penalties. In Section F, the situation known as mercy killing was discussed. The previous suggestion of a new offence applying to a person who from compassion unlawfully killed another person permanently subject, for example, to great bodily pain and suffering and for which a two-year maximum sentence was applicable, was unanimously withdrawn. It was noted that the vast majority of the persons and bodies consulted were against the proposal on principle and on pragmatic grounds. Reference was made also to the difficulties of definition and the possibility that the “suggestion would not prevent suffering but would cause suffering, since the weak and handicapped would receive less effective protection from the law than the fit and well”.", "20. It did however recommend that the penalty for assisting suicide be reduced to seven years, as being sufficiently substantial to protect helpless persons open to persuasion by the unscrupulous.", "21. On 31 January 1994 the report of the House of Lords Select Committee on Medical Ethics (HL Paper 21-I) was published following its inquiry into the ethical, legal and clinical implications of a person's right to withhold consent to life-prolonging treatment, the position of persons unable to give or withhold consent and whether and in what circumstances the shortening of another person's life might be justified on the grounds that it accorded with that person's wishes or best interests. The Committee had heard oral evidence from a variety of government, medical, legal and non-governmental sources and received written submissions from numerous interested parties who addressed the ethical, philosophical, religious, moral, clinical, legal and public-policy aspects.", "22. It concluded, as regards voluntary euthanasia:", "“236. The right to refuse medical treatment is far removed from the right to request assistance in dying. We spent a long time considering the very strongly held and sincerely expressed views of those witnesses who advocated voluntary euthanasia. Many of us have had experience of relatives or friends whose dying days or weeks were less than peaceful or uplifting, or whose final stages of life were so disfigured that the loved one seemed already lost to us, or who were simply weary of life ... Our thinking must also be coloured by the wish of every individual for a peaceful and easy death, without prolonged suffering, and by a reluctance to contemplate the possibility of severe dementia or dependence. We gave much thought too to Professor Dworkin's opinion that, for those without religious belief, the individual is best able to decide what manner of death is fitting to the life that has been lived.", "237. Ultimately, however, we do not believe that these arguments are sufficient reason to weaken society's prohibition of intentional killing. That prohibition is the cornerstone of law and of social relationships. It protects each one of us impartially, embodying the belief that all are equal. We do not wish that protection to be diminished and we therefore recommend that there should be no change in the law to permit euthanasia. We acknowledge that there are individual cases in which euthanasia may be seen by some to be appropriate. But individual cases cannot reasonably establish the foundation of a policy which would have such serious and widespread repercussions. Moreover, dying is not only a personal or individual affair. The death of a person affects the lives of others, often in ways and to an extent which cannot be foreseen. We believe that the issue of euthanasia is one in which the interest of the individual cannot be separated from the interest of society as a whole.", "238. One reason for this conclusion is that we do not think it possible to set secure limits on voluntary euthanasia ...", "239. We are also concerned that vulnerable people – the elderly, sick or distressed – would feel pressure, whether real or imagined, to request early death. We accept that, for the most part, requests resulting from such pressure or from remediable depressive illness would be identified as such by doctors and managed appropriately. Nevertheless we believe that the message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life ...”", "23. In light of the above, the Select Committee on Medical Ethics also recommended no change to the legislation concerning assisted suicide (paragraph 262).", "III. RELEVANT INTERNATIONAL MATERIALS", "24. Recommendation 1418 (1999) of the Parliamentary Assembly of the Council of Europe recommended, inter alia, as follows (paragraph 9):", "“... that the Committee of Ministers encourage the member States of the Council of Europe to respect and protect the dignity of terminally ill or dying persons in all respects:", "...", "c. by upholding the prohibition against intentionally taking the life of terminally ill or dying persons, while:", "THE LAW", "I. ADMISSIBILITY OF THE APPLICATION", "32. The applicant, who is suffering from an incurable, degenerative disease, argued that fundamental rights under the Convention had been violated in her case by the refusal of the Director of Public Prosecutions to give an undertaking not to prosecute her husband if he were to assist her to end her life and by the state of English law which rendered assisted suicide in her case a criminal offence. The Government submitted that the application should be dismissed as manifestly ill-founded on the grounds either that the applicant's complaints did not engage any of the rights relied on by her or that any interferences with those rights were justified in terms of the exceptions allowed by the Convention's provisions.", "33. The Court considers that the application as a whole raises questions of law which are sufficiently serious that their determination should depend on an examination of the merits. No other ground for declaring it inadmissible has been established. The application must therefore be declared admissible. Pursuant to Article 29 § 3 of the Convention, the Court will now consider the merits of the applicant's complaints.", "II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "34. The relevant parts of Article 2 of the Convention provide:", "“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:", "(a) in defence of any person from unlawful violence;", "(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;", "(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”", "A. Submissions of the parties", "1. The applicant", "35. The applicant submitted that permitting her to be assisted in committing suicide would not be in conflict with Article 2 of the Convention, otherwise those countries in which assisted suicide was not unlawful would be in breach of this provision. Furthermore, Article 2 protected not only the right to life but also the right to choose whether or not to go on living. It protected the right to life and not life itself, while the sentence concerning deprivation of life was directed towards protecting individuals from third parties, namely the State and public authorities, not from themselves. Article 2 therefore acknowledged that it was for the individual to choose whether or not to go on living and protected her right to die to avoid inevitable suffering and indignity as the corollary of the right to life. In so far as the Keenan case referred to by the Government indicated that an obligation could arise for prison authorities to protect a prisoner who tried to take his own life, the obligation only arose because he was a prisoner and lacked, due to his mental illness, the capacity to take a rational decision to end his life (see Keenan v. the United Kingdom, no. 27229/95, ECHR 2001-III).", "2. The Government", "36. The Government submitted that the applicant's reliance on Article 2 was misconceived, being unsupported by direct authority and being inconsistent with existing authority and with the language of the provision. Article 2, guaranteeing one of the most fundamental rights, imposed primarily a negative obligation. Although it had in some cases been found to impose positive obligations, this concerned steps appropriate to safeguard life. In previous cases the State's responsibility under Article 2 to protect a prisoner had not been affected by the fact that he committed suicide (see Keenan, cited above) and it had also been recognised that the State was entitled to force-feed a prisoner on hunger strike (see X v. Germany, no. 10565/83, Commission decision of 9 May 1984, unreported). The wording of Article 2 expressly provided that no one should be deprived of their life intentionally, save in strictly limited circumstances which did not apply in the present case. The right to die was not the corollary, but the antithesis of the right to life.", "B. The Court's assessment", "37. The Court's case-law accords pre-eminence to Article 2 as one of the most fundamental provisions of the Convention (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-47). It safeguards the right to life, without which enjoyment of any of the other rights and freedoms in the Convention is rendered nugatory. It sets out the limited circumstances when deprivation of life may be justified and the Court has applied a strict scrutiny when those exceptions have been relied on by the respondent States (ibid., p. 46, §§ 149-50).", "38. The text of Article 2 expressly regulates the deliberate or intended use of lethal force by State agents. However, it has been interpreted as covering not only intentional killing but also the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life (ibid., p. 46, § 148). Furthermore, the Court has held that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36). This obligation extends beyond a primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions; it may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, p. 3159, § 115, and Kılıç v. Turkey, no. 22492/93, §§ 62 and 76, ECHR 2000-III). More recently, in Keenan, Article 2 was found to apply to the situation of a mentally ill prisoner who disclosed signs of being a suicide risk (see Keenan, cited above, § 91).", "39. The consistent emphasis in all the cases before the Court has been the obligation of the State to protect life. The Court is not persuaded that “the right to life” guaranteed in Article 2 can be interpreted as involving a negative aspect. While, for example in the context of Article 11 of the Convention, the freedom of association has been found to involve not only a right to join an association but a corresponding right not to be forced to join an association, the Court observes that the notion of a freedom implies some measure of choice as to its exercise (see Young, James and Webster v. the United Kingdom, judgment of 13 August 1981, Series A no. 44, pp. 21-22, § 52, and Sigurđur A. Sigurjónsson v. Iceland, judgment of 30 June 1993, Series A no. 264, pp. 15-16, § 35). Article 2 of the Convention is phrased in different terms. It is unconcerned with issues to do with the quality of living or what a person chooses to do with his or her life. To the extent that these aspects are recognised as so fundamental to the human condition that they require protection from State interference, they may be reflected in the rights guaranteed by other Articles of the Convention, or in other international human rights instruments. Article 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life.", "40. The Court accordingly finds that no right to die, whether at the hands of a third person or with the assistance of a public authority, can be derived from Article 2 of the Convention. It is confirmed in this view by the recent Recommendation 1418 (1999) of the Parliamentary Assembly of the Council of Europe (see paragraph 24 above).", "41. The applicant has argued that a failure to acknowledge a right to die under the Convention would place those countries which do permit assisted suicide in breach of the Convention. It is not for the Court in this case to attempt to assess whether or not the state of law in any other country fails to protect the right to life. As it recognised in Keenan, the measures which may reasonably be taken to protect a prisoner from self-harm will be subject to the restraints imposed by other provisions of the Convention, such as Articles 5 and 8, as well as more general principles of personal autonomy (see Keenan, cited above, § 92 ). Similarly, the extent to which a State permits, or seeks to regulate, the possibility for the infliction of harm on individuals at liberty, by their own or another's hand, may raise conflicting considerations of personal freedom and the public interest that can only be resolved on examination of the concrete circumstances of the case (see, mutatis mutandis, Laskey, Jaggard and Brown v. the United Kingdom, judgment of 19 February 1997, Reports 1997-I). However, even if circumstances prevailing in a particular country which permitted assisted suicide were found not to infringe Article 2 of the Convention, that would not assist the applicant in this case, where the very different proposition – that the United Kingdom would be in breach of its obligations under Article 2 if it did not allow assisted suicide – has not been established.", "42. The Court finds that there has been no violation of Article 2 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "43. Article 3 of the Convention provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Submissions of the parties", "1. The applicant", "44. Before the Court, the applicant focused her complaints principally on Article 3 of the Convention. She submitted that the suffering which she faced qualified as degrading treatment under Article 3 of the Convention. She suffered from a terrible, irreversible disease in its final stages and she would die in an exceedingly distressing and undignified manner as the muscles which controlled her breathing and swallowing weakened to the extent that she would develop respiratory failure and pneumonia. While the Government were not directly responsible for that treatment, it was established under the Court's case-law that under Article 3 the State owed to its citizens not only a negative obligation to refrain from inflicting such treatment but also a positive obligation to protect people from it. In this case, this obligation was to take steps to protect her from the suffering which she would otherwise have to endure.", "45. The applicant argued that there was no room under Article 3 of the Convention for striking a balance between her right to be protected from degrading treatment and any competing interest of the community, as the right was an absolute one. In any event, the balance struck was disproportionate as English law imposed a blanket ban on assisting suicide regardless of the individual circumstances of the case. As a result of this blanket ban, the applicant had been denied the right to be assisted by her husband in avoiding the suffering awaiting her without any consideration having been given to the unique facts of her case, in particular that her intellect and capacity to make decisions were unimpaired by the disease, that she was neither vulnerable nor in need of protection, that her imminent death could not be avoided, that if the disease ran its course she would endure terrible suffering and indignity and that no one else was affected by her wish for her husband to assist her save for him and their family who were wholly supportive of her decision. Without such consideration of the facts of the case, the rights of the individual could not be protected.", "46. The applicant also disputed that there was any scope for allowing any margin of appreciation under Article 3 of the Convention, although if there was, the Government could not be entitled to rely on such a margin in defence of a statutory scheme operated in such a way as to involve no consideration of her concrete circumstances. The applicant rejected as offensive the assertion of the Government that all those who were terminally ill or disabled and contemplating suicide were by definition vulnerable and that a blanket ban was necessary so as to protect them. Any concern as to protecting those who were vulnerable could be met by providing a scheme whereby assisted suicide was lawful provided that the individual in question could demonstrate that she had the capacity to come to such a decision and was not in need of protection.", "2. The Government", "47. The Government submitted that Article 3 was not engaged in this case. The primary obligation imposed by this provision was negative: the State must not inflict torture or inhuman or degrading treatment or punishment. The applicant's case was based rather on alleged positive obligations. The Court's case-law indicated that where positive obligations arose they were not absolute but must be interpreted in such a way as not to impose an impossible or disproportionate burden on the authorities. Positive obligations had hitherto been found to arise in three situations: where the State was under a duty to protect the health of a person deprived of liberty, where the State was required to take steps to ensure that persons within its jurisdiction were not subjected to torture or other prohibited treatment at the hands of private individuals and where the State proposed to take action in relation to an individual which would result in the infliction by another of inhuman or degrading treatment on him. None of these circumstances were relevant in the applicant's case, as she was not being mistreated by anyone, she was not complaining about the absence of medical treatment and no State action was being taken against her.", "48. Even if Article 3 were engaged, it did not confer a legally enforceable right to die. In assessing the scope of any positive obligation, it was appropriate to have regard to the margin of appreciation properly afforded to the State in maintaining section 2 of the Suicide Act 1961. The Government submitted that the prohibition on assisted suicide struck a fair balance between the rights of the individual and the interests of the community, in particular as it properly respected the sanctity of life and pursued a legitimate objective, namely protecting the vulnerable; the matter had been carefully considered over the years by the Criminal Law Revision Committee and the House of Lords Select Committee on Medical Ethics; there were powerful arguments, and some evidence, to suggest that legalising voluntary euthanasia led inevitably to the practice of involuntary euthanasia; and the State had an interest in protecting the lives of the vulnerable, in which context they argued that anyone contemplating suicide would necessarily be psychologically and emotionally vulnerable, even if they were physically fit while those with disabilities might be in a more precarious position as being unable effectively to communicate their views. Furthermore, there was a general consensus in Council of Europe countries, where assisted suicide and consensual killing were unlawful in all countries except in the Netherlands. This consensus was also reflected in other jurisdictions outside Europe.", "B. The Court's assessment", "49. Article 3 of the Convention, together with Article 2, must be regarded as one of the most fundamental provisions of the Convention and as enshrining core values of the democratic societies making up the Council of Europe (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 34, § 88). In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention.", "50. An examination of the Court's case-law indicates that Article 3 has been most commonly applied in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanated from intentionally inflicted acts of State agents or public authorities (see, amongst other authorities, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25). It may be described in general terms as imposing a primarily negative obligation on States to refrain from inflicting serious harm on persons within their jurisdiction. However, in light of the fundamental importance of Article 3, the Court has reserved to itself sufficient flexibility to address the application of that Article in other situations that might arise (see D. v. the United Kingdom, judgment of 2 May 1997, Reports 1997-III, p. 792, § 49).", "51. In particular, the Court has held that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment or punishment, including such treatment administered by private individuals (see A. v. the United Kingdom, judgment of 23 September 1998, Reports 1998-VI, p. 2699, § 22). A positive obligation on the State to provide protection against inhuman or degrading treatment has been found to arise in a number of cases: see, for example, A. v. the United Kingdom (cited above) where the child applicant had been caned by his stepfather, and Z and Others v. the United Kingdom ([GC], no. 29392/95, ECHR 2001-V), where four child applicants were severely abused and neglected by their parents. Article 3 also imposes requirements on State authorities to protect the health of persons deprived of liberty (see Keenan, cited above, concerning the lack of effective medical care of a mentally ill prisoner who committed suicide, and also Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).", "52. As regards the types of “treatment” which fall within the scope of Article 3 of the Convention, the Court's case-law refers to “ill-treatment” that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering (see Ireland v. the United Kingdom, cited above, p. 66, § 167; V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX). Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see amongst recent authorities, Price v. the United Kingdom, no. 33394/96, §§ 24-30, ECHR 2001-VII, and Valašinas v. Lithuania, no. 44558/98, § 117, ECHR 2001-VIII). The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (see D. v. the United Kingdom and Keenan, both cited above, and Bensaid v. the United Kingdom, no. 44599/98, ECHR 2000-I).", "53. In the present case, it is beyond dispute that the respondent State has not, itself, inflicted any ill-treatment on the applicant. Nor is there any complaint that the applicant is not receiving adequate care from the State medical authorities. The situation of the applicant is therefore not comparable with that in D. v. the United Kingdom, in which an AIDS sufferer was threatened with removal from the United Kingdom to the island of St Kitts where no effective medical or palliative treatment for his illness was available and he would have been exposed to the risk of dying under the most distressing circumstances. The responsibility of the State would have been engaged by its act (“treatment”) of removing him in those circumstances. There is no comparable act or “treatment” on the part of the United Kingdom in the present case.", "54. The applicant has claimed rather that the refusal of the DPP to give an undertaking not to prosecute her husband if he assisted her to commit suicide and the criminal-law prohibition on assisted suicide disclose inhuman and degrading treatment for which the State is responsible as it will thereby be failing to protect her from the suffering which awaits her as her illness reaches its ultimate stages. This claim, however, places a new and extended construction on the concept of treatment, which, as found by the House of Lords, goes beyond the ordinary meaning of the word. While the Court must take a dynamic and flexible approach to the interpretation of the Convention, which is a living instrument, any interpretation must also accord with the fundamental objectives of the Convention and its coherence as a system of human rights protection. Article 3 must be construed in harmony with Article 2, which hitherto has been associated with it as reflecting basic values respected by democratic societies. As found above, Article 2 of the Convention is first and foremost a prohibition on the use of lethal force or other conduct which might lead to the death of a human being and does not confer any right on an individual to require a State to permit or facilitate his or her death.", "55. The Court cannot but be sympathetic to the applicant's apprehension that without the possibility of ending her life she faces the prospect of a distressing death. It is true that she is unable to commit suicide herself due to physical incapacity and that the state of law is such that her husband faces the risk of prosecution if he renders her assistance. Nonetheless, the positive obligation on the part of the State which is relied on in the present case would not involve the removal or mitigation of harm by, for instance, preventing any ill-treatment by public bodies or private individuals or providing improved conditions or care. It would require that the State sanction actions intended to terminate life, an obligation that cannot be derived from Article 3 of the Convention.", "56. The Court therefore concludes that no positive obligation arises under Article 3 of the Convention to require the respondent State either to give an undertaking not to prosecute the applicant's husband if he assisted her to commit suicide or to provide a lawful opportunity for any other form of assisted suicide. There has, accordingly, been no violation of this provision.", "IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "57. Article 8 of the Convention provides as relevant:", "“1. Everyone has the right to respect for his private and family life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Submissions of the parties", "1. The applicant", "58. The applicant argued that, while the right to self-determination ran like a thread through the Convention as a whole, it was Article 8 in which that right was most explicitly recognised and guaranteed. It was clear that the right to self-determination encompassed the right to make decisions about one's body and what happened to it. She submitted that this included the right to choose when and how to die and that nothing could be more intimately connected to the manner in which a person conducted her life than the manner and timing of her death. It followed that the DPP's refusal to give an undertaking and the State's blanket ban on assisted suicide interfered with her rights under Article 8 § 1.", "59. The applicant argued that there must be particularly serious reasons for interfering with such an intimate part of her private life. However, the Government had failed to show that the interference was justified as no consideration had been given to her individual circumstances. She referred here to the arguments also raised in the context of Article 3 of the Convention (see paragraphs 45-46 above).", "2. The Government", "60. The Government argued that the rights under Article 8 were not engaged as the right to private life did not include a right to die. It covered the manner in which a person conducted her life, not the manner in which she departed from it. Otherwise, the alleged right would extinguish the very benefit on which it was based. Even if they were wrong on this, any interference with rights under Article 8 would be fully justified. The State was entitled, within its margin of appreciation, to determine the extent to which individuals could consent to the infliction of injuries on themselves and so was even more clearly entitled to determine whether a person could consent to being killed.", "B. The Court's assessment", "1. Applicability of Article 8 § 1 of the Convention", "61. As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 22). It can sometimes embrace aspects of an individual's physical and social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I). Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8 (see, for example, B. v. France, judgment of 25 March 1992, Series A no. 232-C, pp. 53-54, § 63; Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 28, § 24; Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, pp. 18-19, § 41; and Laskey, Jaggard and Brown, cited above, p. 131, § 36). Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Burghartz, cited above, opinion of the Commission, p. 37, § 47, and Friedl v. Austria, judgment of 31 January 1995, Series A no. 305-B, opinion of the Commission, p. 20, § 45). Although no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.", "62. The Government have argued that the right to private life cannot encapsulate a right to die with assistance, such being a negation of the protection that the Convention was intended to provide. The Court would observe that the ability to conduct one's life in a manner of one's own choosing may also include the opportunity to pursue activities perceived to be of a physically or morally harmful or dangerous nature for the individual concerned. The extent to which a State can use compulsory powers or the criminal law to protect people from the consequences of their chosen lifestyle has long been a topic of moral and jurisprudential discussion, the fact that the interference is often viewed as trespassing on the private and personal sphere adding to the vigour of the debate. However, even where the conduct poses a danger to health or, arguably, where it is of a life-threatening nature, the case-law of the Convention institutions has regarded the State's imposition of compulsory or criminal measures as impinging on the private life of the applicant within the meaning of Article 8 § 1 and requiring justification in terms of the second paragraph (see, for example, concerning involvement in consensual sado-masochistic activities which amounted to assault and wounding, Laskey, Jaggard and Brown, cited above, and concerning refusal of medical treatment, Acmanne and Others v. Belgium, no. 10435/83, Commission decision of 10 December 1984, Decisions and Reports (DR) 40, p. 251).", "63. While it might be pointed out that death was not the intended consequence of the applicants'conduct in the above situations, the Court does not consider that this can be a decisive factor. In the sphere of medical treatment, the refusal to accept a particular treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person's physical integrity in a manner capable of engaging the rights protected under Article 8 § 1 of the Convention. As recognised in domestic case-law, a person may claim to exercise a choice to die by declining to consent to treatment which might have the effect of prolonging his life (see paragraphs 17-18 above).", "64. In the present case, although medical treatment is not an issue, the applicant is suffering from the devastating effects of a degenerative disease which will cause her condition to deteriorate further and increase her physical and mental suffering. She wishes to mitigate that suffering by exercising a choice to end her life with the assistance of her husband. As stated by Lord Hope, the way she chooses to pass the closing moments of her life is part of the act of living, and she has a right to ask that this too must be respected (see paragraph 15 above).", "65. The very essence of the Convention is respect for human dignity and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, the Court considers that it is under Article 8 that notions of the quality of life take on significance. In an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity.", "66. In Rodriguez v. the Attorney General of Canada ([1994] 2 Law Reports of Canada 136), which concerned a not dissimilar situation to the present, the majority opinion of the Supreme Court considered that the prohibition on the appellant in that case receiving assistance in suicide contributed to her distress and prevented her from managing her death. This deprived her of autonomy and required justification under principles of fundamental justice. Although the Canadian court was considering a provision of the Canadian Charter framed in different terms from those of Article 8 of the Convention, comparable concerns arose regarding the principle of personal autonomy in the sense of the right to make choices about one's own body.", "67. The applicant in this case is prevented by law from exercising her choice to avoid what she considers will be an undignified and distressing end to her life. The Court is not prepared to exclude that this constitutes an interference with her right to respect for private life as guaranteed under Article 8 § 1 of the Convention. It considers below whether this interference conforms with the requirements of the second paragraph of Article 8.", "2. Compliance with Article 8 § 2 of the Convention", "68. An interference with the exercise of an Article 8 right will not be compatible with Article 8 § 2 unless it is “in accordance with the law”, has an aim or aims that is or are legitimate under that paragraph and is “necessary in a democratic society” for the aforesaid aim or aims (see Dudgeon, cited above, p. 19, § 43).", "69. The only issue arising from the arguments of the parties is the necessity of any interference, it being common ground that the restriction on assisted suicide in this case was imposed by law and in pursuit of the legitimate aim of safeguarding life and thereby protecting the rights of others.", "70. According to the Court's established case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued; in determining whether an interference is “necessary in a democratic society”, the Court will take into account that a margin of appreciation is left to the national authorities, whose decision remains subject to review by the Court for conformity with the requirements of the Convention. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake.", "71. The Court recalls that the margin of appreciation has been found to be narrow as regards interferences in the intimate area of an individual's sexual life (see Dudgeon, cited above, p. 21, § 52, and A.D.T. v. the United Kingdom, no. 35765/97, § 37, ECHR 2000-IX). Although the applicant has argued that there must therefore be particularly compelling reasons for the interference in her case, the Court does not find that the matter under consideration in this case can be regarded as of the same nature, or as attracting the same reasoning.", "72. The parties'arguments have focused on the proportionality of the interference as disclosed in the applicant's case. The applicant attacked in particular the blanket nature of the ban on assisted suicide as failing to take into account her situation as a mentally competent adult who knows her own mind, who is free from pressure and who has made a fully informed and voluntary decision, and therefore cannot be regarded as vulnerable and requiring protection. This inflexibility means, in her submission, that she will be compelled to endure the consequences of her incurable and distressing illness, at a very high personal cost.", "73. The Court would note that although the Government argued that the applicant, as a person who is both contemplating suicide and severely disabled, must be regarded as vulnerable, this assertion is not supported by the evidence before the domestic courts or by the judgments of the House of Lords which, while emphasising that the law in the United Kingdom was there to protect the vulnerable, did not find that the applicant was in that category.", "74. Nonetheless, the Court finds, in agreement with the House of Lords and the majority of the Canadian Supreme Court in Rodriguez, that States are entitled to regulate through the operation of the general criminal law activities which are detrimental to the life and safety of other individuals (see also Laskey, Jaggard and Brown, cited above, pp. 132-33, § 43). The more serious the harm involved the more heavily will weigh in the balance considerations of public health and safety against the countervailing principle of personal autonomy. The law in issue in this case, section 2 of the 1961 Act, was designed to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life. Doubtless the condition of terminally ill individuals will vary. But many will be vulnerable and it is the vulnerability of the class which provides the rationale for the law in question. It is primarily for States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created. Clear risks of abuse do exist, notwithstanding arguments as to the possibility of safeguards and protective procedures.", "75. The applicant's counsel attempted to persuade the Court that a finding of a violation in this case would not create a general precedent or any risk to others. It is true that it is not this Court's role under Article 34 of the Convention to issue opinions in the abstract but to apply the Convention to the concrete facts of the individual case. However, judgments issued in individual cases establish precedents albeit to a greater or lesser extent and a decision in this case could not, either in theory or practice, be framed in such a way as to prevent application in later cases.", "76. The Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate. The Government have stated that flexibility is provided for in individual cases by the fact that consent is needed from the DPP to bring a prosecution and by the fact that a maximum sentence is provided, allowing lesser penalties to be imposed as appropriate. The Select Committee report indicated that between 1981 and 1992 in twenty-two cases in which “mercy killing” was an issue, there was only one conviction for murder, with a sentence of life imprisonment, while lesser offences were substituted in the others and most resulted in probation or suspended sentences (paragraph 128 of the report cited at paragraph 21 above). It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence.", "77. Nor in the circumstances is there anything disproportionate in the refusal of the DPP to give an advance undertaking that no prosecution would be brought against the applicant's husband. Strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law. In any event, the seriousness of the act for which immunity was claimed was such that the decision of the DPP to refuse the undertaking sought in the present case cannot be said to be arbitrary or unreasonable.", "78. The Court concludes that the interference in this case may be justified as “necessary in a democratic society” for the protection of the rights of others and, accordingly, that there has been no violation of Article 8 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION", "79. Article 9 of the Convention provides:", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "A. Submissions of the parties", "1. The applicant", "80. The applicant submitted that Article 9 protected the right to freedom of thought, which has hitherto included beliefs such as veganism and pacifism. In seeking the assistance of her husband to commit suicide, the applicant believed in and supported the notion of assisted suicide for herself. In refusing to give the undertaking not to prosecute her husband, the DPP had interfered with this right as had the United Kingdom in imposing a blanket ban which allowed no consideration of the applicant's individual circumstances. For the same reasons as applied under Article 8 of the Convention, that interference had not been justified under Article 9 § 2.", "2. The Government", "81. The Government disputed that any issue arose within the scope of this provision. Article 9 protected freedom of thought, conscience and religion and the manifestation of those beliefs and did not confer any general right on individuals to engage in any activities of their choosing in pursuance of whatever beliefs they may hold. Alternatively, even if there was any restriction in terms of Article 9 § 1 of the Convention, such was justifiable under the second paragraph for the same reasons as set out in relation to Articles 3 and 8 of the Convention.", "B. The Court's assessment", "82. The Court does not doubt the firmness of the applicant's views concerning assisted suicide but would observe that not all opinions or convictions constitute beliefs in the sense protected by Article 9 § 1 of the Convention. Her claims do not involve a form of manifestation of a religion or belief, through worship, teaching, practice or observance as described in the second sentence of the first paragraph. As found by the Commission, the term “practice” as employed in Article 9 § 1 does not cover each act which is motivated or influenced by a religion or belief (see Arrowsmith v. the United Kingdom, no. 7050/77, Commission's report of 12 October 1978, DR 19, p. 19, § 71). To the extent that the applicant's views reflect her commitment to the principle of personal autonomy, her claim is a restatement of the complaint raised under Article 8 of the Convention.", "83. The Court concludes that there has been no violation of Article 9 of the Convention.", "VI. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "84. Article 14 of the Convention provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. Submissions of the parties", "1. The applicant", "85. The applicant submitted that she suffered from discrimination as a result of being treated in the same way as those whose situations were significantly different. Although the blanket ban on assisted suicide applied equally to all individuals, the effect of its application to her when she was so disabled that she could not end her life without assistance was discriminatory. She was prevented from exercising a right enjoyed by others who could end their lives without assistance because they were not prevented by any disability from doing so. She was therefore treated substantively differently and less favourably than those others. As the only justification offered by the Government for the blanket ban was the need to protect the vulnerable and as the applicant was not vulnerable or in need of protection, there was no reasonable or objective justification for this difference in treatment.", "2. The Government", "86. The Government argued that Article 14 of the Convention did not come into play as the applicant's complaints did not engage any of the substantive rights she relied on. Alternatively, there was no discrimination as the applicant could not be regarded as being in a relevantly similar situation to those who were able to take their own lives without assistance. Even assuming Article 14 was in issue, section 2(1) of the Suicide Act 1961 was not discriminatory as domestic law conferred no right to commit suicide and the policy of the law was firmly against suicide. The policy of the criminal law was to give weight to personal circumstances either at the stage of considering whether or not to prosecute or in the event of conviction, when penalty was to be considered. Furthermore, there was clear reasonable and objective justification for any alleged difference in treatment, reference being made to the arguments advanced under Articles 3 and 8 of the Convention.", "B. The Court's assessment", "87. The Court has found above that the applicant's rights under Article 8 of the Convention were engaged (see paragraphs 61-67). It must therefore consider the applicant's complaints that she has been discriminated against in the enjoyment of the rights guaranteed under that provision in that domestic law permits able-bodied persons to commit suicide yet prevents an incapacitated person from receiving assistance in committing suicide.", "88. For the purposes of Article 14 a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover, the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Camp and Bourimi v. the Netherlands, no. 28369/95, § 37, ECHR 2000-X). Discrimination may also arise where States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV).", "89. Even if the principle derived from Thlimmenos was applied to the applicant's situation however, there is, in the Court's view, objective and reasonable justification for not distinguishing in law between those who are and those who are not physically capable of committing suicide. Under Article 8 of the Convention, the Court has found that there are sound reasons for not introducing into the law exceptions to cater for those who are deemed not to be vulnerable (see paragraph 74 above). Similar cogent reasons exist under Article 14 for not seeking to distinguish between those who are able and those who are unable to commit suicide unaided. The borderline between the two categories will often be a very fine one and to seek to build into the law an exemption for those judged to be incapable of committing suicide would seriously undermine the protection of life which the 1961 Act was intended to safeguard and greatly increase the risk of abuse.", "90. Consequently, there has been no violation of Article 14 of the Convention in the present case." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant is a 43-year-old woman. She resides with her husband of twenty-five years, their daughter and granddaughter. The applicant suffers from motor neurone disease (MND). This is a progressive neuro-degenerative disease of motor cells within the central nervous system. The disease is associated with progressive muscle weakness affecting the voluntary muscles of the body. As a result of the progression of the disease, severe weakness of the arms and legs and the muscles involved in the control of breathing are affected. Death usually occurs as a result of weakness of the breathing muscles, in association with weakness of the muscles controlling speaking and swallowing, leading to respiratory failure and pneumonia. No treatment can prevent the progression of the disease.", "8. The applicant's condition has deteriorated rapidly since MND was diagnosed in November 1999. The disease is now at an advanced stage. She is essentially paralysed from the neck down, has virtually no decipherable speech and is fed through a tube. Her life expectancy is very poor, measurable only in weeks or months. However, her intellect and capacity to make decisions are unimpaired. The final stages of the disease are exceedingly distressing and undignified. As she is frightened and distressed at the suffering and indignity that she will endure if the disease runs its course, she very strongly wishes to be able to control how and when she dies and thereby be spared that suffering and indignity.", "9. Although it is not a crime to commit suicide under English law, the applicant is prevented by her disease from taking such a step without assistance. It is however a crime to assist another to commit suicide (section 2(1) of the Suicide Act 1961).", "10. Intending that she might commit suicide with the assistance of her husband, the applicant's solicitor asked the Director of Public Prosecutions (DPP), in a letter dated 27 July 2001 written on her behalf, to give an undertaking not to prosecute the applicant's husband should he assist her to commit suicide in accordance with her wishes.", "11. In a letter dated 8 August 2001, the DPP refused to give the undertaking:", "“Successive Directors – and Attorneys General – have explained that they will not grant immunities that condone, require, or purport to authorise or permit the future commission of any criminal offence, no matter how exceptional the circumstances. ...”", "12. On 20 August 2001 the applicant applied for judicial review of the DPP's decision and the following relief:", "– an order quashing the DPP's decision of 8 August 2001;", "– a declaration that the decision was unlawful or that the DPP would not be acting unlawfully in giving the undertaking sought;", "– a mandatory order requiring the DPP to give the undertaking sought; or alternatively", "– a declaration that section 2 of the Suicide Act 1961 was incompatible with Articles 2, 3, 8, 9 and 14 of the Convention.", "13. On 17 October 2001 the Divisional Court refused the application, holding that the DPP did not have the power to give the undertaking not to prosecute and that section 2(1) of the Suicide Act 1961 was not incompatible with the Convention.", "14. The applicant appealed to the House of Lords. They dismissed her appeal on 29 November 2001 and upheld the judgment of the Divisional Court. In giving the leading judgment in The Queen on the Application of Mrs Dianne Pretty (Appellant) v. Director of Public Prosecutions (Respondent) and Secretary of State for the Home Department (Interested Party), Lord Bingham of Cornhill held:", "“1. No one of ordinary sensitivity could be unmoved by the frightening ordeal which faces Mrs Dianne Pretty, the appellant. She suffers from motor neurone disease, a progressive degenerative illness from which she has no hope of recovery. She has only a short time to live and faces the prospect of a humiliating and distressing death. She is mentally alert and would like to be able to take steps to bring her life to a peaceful end at a time of her choosing. But her physical incapacity is now such that she can no longer, without help, take her own life. With the support of her family, she wishes to enlist the help of her husband to that end. He himself is willing to give such help, but only if he can be sure that he will not be prosecuted under section 2(1) of the Suicide Act 1961 for aiding and abetting her suicide. Asked to undertake that he would not under section 2(4) of the Act consent to the prosecution of Mr Pretty under section 2(1) if Mr Pretty were to assist his wife to commit suicide, the Director of Public Prosecutions has refused to give such an undertaking. On Mrs Pretty's application for judicial review of that refusal, the Queen's Bench Divisional Court upheld the Director's decision and refused relief. Mrs Pretty claims that she has a right to her husband's assistance in committing suicide and that section 2 of the 1961 Act, if it prohibits his helping and prevents the Director undertaking not to prosecute if he does, is incompatible with the European Convention on Human Rights. It is on the Convention, brought into force in this country by the Human Rights Act 1998, that Mrs Pretty's claim to relief depends. It is accepted by her counsel on her behalf that under the common law of England she could not have hoped to succeed.", "2. In discharging the judicial functions of the House, the appellate committee has the duty of resolving issues of law properly brought before it, as the issues in this case have been. The committee is not a legislative body. Nor is it entitled or fitted to act as a moral or ethical arbiter. It is important to emphasise the nature and limits of the committee's role, since the wider issues raised by this appeal are the subject of profound and fully justified concern to very many people. The questions whether the terminally ill, or others, should be free to seek assistance in taking their own lives, and if so in what circumstances and subject to what safeguards, are of great social, ethical and religious significance and are questions on which widely differing beliefs and views are held, often strongly. Materials laid before the committee (with its leave) express some of those views; many others have been expressed in the news media, professional journals and elsewhere. The task of the committee in this appeal is not to weigh or evaluate or reflect those beliefs and views or give effect to its own but to ascertain and apply the law of the land as it is now understood to be.", "Article 2 of the Convention", "3. Article 2 of the Convention provides: ...", "The Article is to be read in conjunction with Articles 1 and 2 of the Sixth Protocol, which are among the Convention rights protected by the 1998 Act (see section 1(1)(c)) and which abolished the death penalty in time of peace.", "4. On behalf of Mrs Pretty it is submitted that Article 2 protects not life itself but the right to life. The purpose of the Article is to protect individuals from third parties (the State and public authorities). But the Article recognises that it is for the individual to choose whether or not to live and so protects the individual's right to self-determination in relation to issues of life and death. Thus a person may refuse life-saving or life-prolonging medical treatment, and may lawfully choose to commit suicide. The Article acknowledges that right of the individual. While most people want to live, some want to die, and the Article protects both rights. The right to die is not the antithesis of the right to life but the corollary of it, and the State has a positive obligation to protect both.", "5. The Secretary of State has advanced a number of unanswerable objections to this argument which were rightly upheld by the Divisional Court. The starting point must be the language of the Article. The thrust of this is to reflect the sanctity which, particularly in western eyes, attaches to life. The Article protects the right to life and prevents the deliberate taking of life save in very narrowly defined circumstances. An Article with that effect cannot be interpreted as conferring a right to die or to enlist the aid of another in bringing about one's own death. In his argument for Mrs Pretty, Mr Havers QC was at pains to limit his argument to assisted suicide, accepting that the right claimed could not extend to cover an intentional consensual killing (usually described in this context as'voluntary euthanasia', but regarded in English law as murder). The right claimed would be sufficient to cover Mrs Pretty's case and counsel's unwillingness to go further is understandable. But there is in logic no justification for drawing a line at this point. If Article 2 does confer a right to self-determination in relation to life and death, and if a person were so gravely disabled as to be unable to perform any act whatever to cause his or her own death, it would necessarily follow in logic that such a person would have a right to be killed at the hands of a third party without giving any help to the third party and the State would be in breach of the Convention if it were to interfere with the exercise of that right. No such right can possibly be derived from an Article having the object already defined.", "6. It is true that some of the guaranteed Convention rights have been interpreted as conferring rights not to do that which is the antithesis of what there is an express right to do. Article 11, for example, confers a right not to join an association ( Young, James and Webster v. United Kingdom (1981) 4 EHRR 38), Article 9 embraces a right to freedom from any compulsion to express thoughts or change an opinion or divulge convictions (Clayton and Tomlinson, The Law of Human Rights (2000), p. 974, para. 14.49) and I would for my part be inclined to infer that Article 12 confers a right not to marry (but see Clayton and Tomlinson, ibid., p. 913, para. 13.76). It cannot however be suggested (to take some obvious examples) that Articles 3, 4, 5 and 6 confer an implied right to do or experience the opposite of that which the Articles guarantee. Whatever the benefits which, in the view of many, attach to voluntary euthanasia, suicide, physician-assisted suicide and suicide assisted without the intervention of a physician, these are not benefits which derive protection from an Article framed to protect the sanctity of life.", "7. There is no Convention authority to support Mrs Pretty's argument. To the extent that there is any relevant authority it is adverse to her. In Osman v. United Kingdom (1998) 29 EHRR 245 the applicants complained of a failure by the United Kingdom to protect the right to life of the second applicant and his deceased father. At p. 305 the court said:", "' 115. The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State's obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.", "116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention.'", "The context of that case was very different. Neither the second applicant nor his father had had any wish to die. But the court's approach to Article 2 was entirely consistent with the interpretation I have put upon it.", "8. X v. Germany (1984) 7 EHRR 152 and Keenan v. United Kingdom (App. No. 27229/95; 3 April 2001, unreported) were also decided in a factual context very different from the present. X, while in prison, had gone on hunger strike and had been forcibly fed by the prison authorities. His complaint was of maltreatment contrary to Article 3 of the Convention, considered below. The complaint was rejected and in the course of its reasoning the commission held (at pp. 153-154):", "' In the opinion of the Commission forced feeding of a person does involve degrading elements which in certain circumstances may be regarded as prohibited by Art. 3 of the Convention. Under the Convention the High Contracting Parties are, however, also obliged to secure to everyone the right to life as set out in Art. 2. Such an obligation should in certain circumstances call for positive action on the part of the Contracting Parties, in particular an active measure to save lives when the authorities have taken the person in question into their custody. When, as in the present case, a detained person maintains a hunger strike this may inevitably lead to a conflict between an individual's right to physical integrity and the High Contracting Party's obligation under Art. 2 of the Convention – a conflict which is not solved by the Convention itself. The Commission recalls that under German law this conflict has been solved in that it is possible to force-feed a detained person if this person, due to a hunger strike, would be subject to injuries of a permanent character, and the forced feeding is even obligatory if an obvious danger for the individual's life exists. The assessment of the above-mentioned conditions is left for the doctor in charge but an eventual decision to force-feed may only be carried out after judicial permission has been obtained ... The Commission is satisfied that the authorities acted solely in the best interests of the applicant when choosing between either respect for the applicant's will not to accept nourishment of any kind and thereby incur the risk that he might be subject to lasting injuries or even die, or to take action with a view to securing his survival although such action might infringe the applicant's human dignity.'", "In Keenan a young prisoner had committed suicide and his mother complained of a failure by the prison authorities to protect his life. In the course of its judgment rejecting the complaint under this Article the court said (at p. 29, para. 90):", "' In the context of prisoners, the Court has had previous occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them. It is incumbent on the State to account for any injuries suffered in custody, which obligation is particularly stringent where that individual dies ... It may be noted that this need for scrutiny is acknowledged in the domestic law of England and Wales, where inquests are automatically held concerning the deaths of persons in prison and where the domestic courts have imposed a duty of care on prison authorities in respect of those detained in their custody.'", "Both these cases can be distinguished, since the conduct complained of took place when the victim was in the custody of the State, which accordingly had a special responsibility for the victim's welfare. It may readily be accepted that the obligation of the State to safeguard the life of a potential victim is enhanced when the latter is in the custody of the State. To that extent these two cases are different from the present, since Mrs Pretty is not in the custody of the State. Thus the State's positive obligation to protect the life of Mrs Pretty is weaker than in such cases. It would however be a very large, and in my view quite impermissible, step to proceed from acceptance of that proposition to acceptance of the assertion that the State has a duty to recognise a right for Mrs Pretty to be assisted to take her own life.", "9. In the Convention field the authority of domestic decisions is necessarily limited and, as already noted, Mrs Pretty bases her case on the Convention. But it is worthy of note that her argument is inconsistent with two principles deeply embedded in English law. The first is a distinction between the taking of one's own life by one's own act and the taking of life through the intervention or with the help of a third party. The former has been permissible since suicide ceased to be a crime in 1961. The latter has continued to be proscribed. The distinction was very clearly expressed by Hoffmann LJ in Airedale NHS Trust v. Bland [1993] AC 789 at 831:", "' No one in this case is suggesting that Anthony Bland should be given a lethal injection. But there is concern about ceasing to supply food as against, for example, ceasing to treat an infection with antibiotics. Is there any real distinction? In order to come to terms with our intuitive feelings about whether there is a distinction, I must start by considering why most of us would be appalled if he was given a lethal injection. It is, I think, connected with our view that the sanctity of life entails its inviolability by an outsider. Subject to exceptions like self-defence, human life is inviolate even if the person in question has consented to its violation. That is why although suicide is not a crime, assisting someone to commit suicide is. It follows that, even if we think Anthony Bland would have consented, we would not be entitled to end his life by a lethal injection.'", "The second distinction is between the cessation of life-saving or life-prolonging treatment on the one hand and the taking of action lacking medical, therapeutic or palliative justification but intended solely to terminate life on the other. This distinction provided the rationale of the decisions in Bland. It was very succinctly expressed in the Court of Appeal in In re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33, in which Lord Donaldson of Lymington MR said, at p. 46:", "' What doctors and the court have to decide is whether, in the best interests of the child patient, a particular decision as to medical treatment should be taken which as a side effect will render death more or less likely. This is not a matter of semantics. It is fundamental. At the other end of the age spectrum, the use of drugs to reduce pain will often be fully justified, notwithstanding that this will hasten the moment of death. What can never be justified is the use of drugs or surgical procedures with the primary purpose of doing so.'", "Similar observations were made by Balcombe LJ at p. 51 and Taylor LJ at p. 53. While these distinctions are in no way binding on the European Court of Human Rights there is nothing to suggest that they are inconsistent with the jurisprudence which has grown up around the Convention. It is not enough for Mrs Pretty to show that the United Kingdom would not be acting inconsistently with the Convention if it were to permit assisted suicide; she must go further and establish that the United Kingdom is in breach of the Convention by failing to permit it or would be in breach of the Convention if it did not permit it. Such a contention is in my opinion untenable, as the Divisional Court rightly held.", "Article 3 of the Convention", "10. Article 3 of the Convention provides: ...", "This is one of the Articles from which a member State may not derogate even in time of war or other public emergency threatening the life of the nation: see Article 15. I shall for convenience use the expression'proscribed treatment'to mean'inhuman or degrading treatment'as that expression is used in the Convention.", "11. In brief summary the argument for Mrs Pretty proceeded by these steps.", "(1) Member States have an absolute and unqualified obligation not to inflict the proscribed treatment and also to take positive action to prevent the subjection of individuals to such treatment: A. v. United Kingdom (1998) 27 EHRR 611; Z v. United Kingdom [2001] 2 FLR 612 at 631, para. 73.", "(2) Suffering attributable to the progression of a disease may amount to such treatment if the State can prevent or ameliorate such suffering and does not do so: D. v. United Kingdom (1997) 24 EHRR 423, at pp. 446-449, paras. 46-54.", "(3) In denying Mrs Pretty the opportunity to bring her suffering to an end the United Kingdom (by the Director) will subject her to the proscribed treatment. The State can spare Mrs Pretty the suffering which she will otherwise endure since, if the Director undertakes not to give his consent to prosecution, Mr Pretty will assist his wife to commit suicide and so she will be spared much suffering.", "(4) Since, as the Divisional Court held, it is open to the United Kingdom under the Convention to refrain from prohibiting assisted suicide, the Director can give the undertaking sought without breaking the United Kingdom's obligations under the Convention.", "(5) If the Director may not give the undertaking, section 2 of the 1961 Act is incompatible with the Convention.", "12. For the Secretary of State it was submitted that in the present case Article 3 of the Convention is not engaged at all but that if any of the rights protected by that Article are engaged they do not include a right to die. In support of the first of these submissions it was argued that there is in the present case no breach of the prohibition in the Article. The negative prohibition in the Article is absolute and unqualified but the positive obligations which flow from it are not absolute: see Osman v. United Kingdom, above; Rees v. United Kingdom (1986) 9 EHRR 56. While States may be obliged to protect the life and health of a person in custody (as in the case of Keenan, above), and to ensure that individuals are not subjected to proscribed treatment at the hands of private individuals other than State agents (as in A. v. United Kingdom, above), and the State may not take direct action in relation to an individual which would inevitably involve the inflicting of proscribed treatment upon him ( D. v. United Kingdom (1997) 24 EHRR 423), none of these obligations can be invoked by Mrs Pretty in the present case. In support of the second submission it was argued that, far from suggesting that the State is under a duty to provide medical care to ease her condition and prolong her life, Mrs Pretty is arguing that the State is under a legal obligation to sanction a lawful means for terminating her life. There is nothing, either in the wording of the Convention or the Strasbourg jurisprudence, to suggest that any such duty exists by virtue of Article 3. The decision how far the State should go in discharge of its positive obligation to protect individuals from proscribed treatment is one for member States, taking account of all relevant interests and considerations; such a decision, while not immune from review, must be accorded respect. The United Kingdom has reviewed these issues in depth and resolved to maintain the present position.", "13. Article 3 enshrines one of the fundamental values of democratic societies and its prohibition of the proscribed treatment is absolute: D. v. United Kingdom (1997) 24 EHRR 423 at p. 447, para. 47. Article 3 is, as I think, complementary to Article 2. As Article 2 requires States to respect and safeguard the lives of individuals within their jurisdiction, so Article 3 obliges them to respect the physical and human integrity of such individuals. There is in my opinion nothing in Article 3 which bears on an individual's right to live or to choose not to live. That is not its sphere of application; indeed, as is clear from X v. Germany above, a State may on occasion be justified in inflicting treatment which would otherwise be in breach of Article 3 in order to serve the ends of Article 2. Moreover, the absolute and unqualified prohibition on a member State inflicting the proscribed treatment requires that'treatment'should not be given an unrestricted or extravagant meaning. It cannot, in my opinion, be plausibly suggested that the Director or any other agent of the United Kingdom is inflicting the proscribed treatment on Mrs Pretty, whose suffering derives from her cruel disease.", "14. The authority most helpful to Mrs Pretty is D. v. United Kingdom (1997) 24 EHRR 423, which concerned the removal to St Kitts of a man in the later stages of AIDS. The Convention challenge was to implementation of the removal decision having regard to the applicant's medical condition, the absence of facilities to provide adequate treatment, care or support in St Kitts and the disruption of a regime in the United Kingdom which had afforded him sophisticated treatment and medication in a compassionate environment. It was held that implementation of the decision to remove the applicant to St Kitts would amount in the circumstances to inhuman treatment by the United Kingdom in violation of Article 3. In that case the State was proposing to take direct action against the applicant, the inevitable effect of which would be a severe increase in his suffering and a shortening of his life. The proposed deportation could fairly be regarded as'treatment'. An analogy might be found in the present case if a public official had forbidden the provision to Mrs Pretty of pain-killing or palliative drugs. But here the proscribed treatment is said to be the Director's refusal of proleptic immunity from prosecution to Mr Pretty if he commits a crime. By no legitimate process of interpretation can that refusal be held to fall within the negative prohibition of Article 3.", "15. If it be assumed that Article 3 is capable of being applied at all to a case such as the present, and also that on the facts there is no arguable breach of the negative prohibition in the Article, the question arises whether the United Kingdom (by the Director) is in breach of its positive obligation to take action to prevent the subjection of individuals to proscribed treatment. In this context, the obligation of the State is not absolute and unqualified. So much appears from the passage quoted in paragraph 7 above from the judgment of the European Court of Human Rights in Osman v. United Kingdom. The same principle was acknowledged by the court in Rees v. United Kingdom (1986) 9 EHRR 56 where it said in para. 37 of its judgment at pp. 63-64:", "' 37. As the Court pointed out in its above-mentioned Abdulaziz, Cabales and Balkandali judgment the notion of “respect” is not clear-cut, especially as far as those positive obligations are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case.", "These observations are particularly relevant here. Several States have, through legislation or by means of legal interpretation or by administrative practice, given transsexuals the option of changing their personal status to fit their newly-gained identity. They have, however, made this option subject to conditions of varying strictness and retained a number of express reservations (for example, as to previously incurred obligations). In other States, such an option does not – or does not yet – exist. It would therefore be true to say that there is at present little common ground between the Contracting States in this area and that, generally speaking, the law appears to be in a transitional stage. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation.", "In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention. In striking this balance the aims mentioned in the second paragraph of Article 8 may be of a certain relevance, although this provision refers in terms only to “interferences” with the right protected by the first paragraph – in other words is concerned with the negative obligations flowing therefrom.'", "That was an Article 8 case, dealing with a very different subject matter from the present, but the court's observations were of more general import. It stands to reason that while States may be absolutely forbidden to inflict the proscribed treatment on individuals within their jurisdictions, the steps appropriate or necessary to discharge a positive obligation will be more judgmental, more prone to variation from State to State, more dependent on the opinions and beliefs of the people and less susceptible to any universal injunction. For reasons more fully given in paragraphs 27 and 28 below, it could not in my view be said that the United Kingdom is under a positive obligation to ensure that a competent, terminally ill, person who wishes but is unable to take his or her own life should be entitled to seek the assistance of another without that other being exposed to the risk of prosecution.", "Article 8 of the Convention", "16. Article 8 of the Convention provides: ...", "17. Counsel for Mrs Pretty submitted that this Article conferred a right to self-determination: see X and Y v. Netherlands (1985) 8 EHRR 235; Rodriguez v. Attorney General of Canada [1994] 2 LRC 136; In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147. This right embraces a right to choose when and how to die so that suffering and indignity can be avoided. Section 2(1) of the 1961 Act interferes with this right of self-determination: it is therefore for the United Kingdom to show that the interference meets the Convention tests of legality, necessity, responsiveness to pressing social need and proportionality: see R. v. A. (No. 2) [2001] 2 WLR 1546; Johansen v. Norway (1996) 23 EHRR 33; R. (P) v. Secretary of State for the Home Department [2001] 1 WLR 2002. Where the interference is with an intimate part of an individual's private life, there must be particularly serious reasons to justify the interference: Smith and Grady v. United Kingdom (1999) 29 EHRR 493 at p. 530, para. 89. The court must in this case rule whether it could be other than disproportionate for the Director to refuse to give the undertaking sought and, in the case of the Secretary of State, whether the interference with Mrs Pretty's right to self-determination is proportionate to whatever legitimate aim the prohibition on assisted suicide pursues. Counsel placed particular reliance on certain features of Mrs Pretty's case: her mental competence, the frightening prospect which faces her, her willingness to commit suicide if she were able, the imminence of death, the absence of harm to anyone else, the absence of far-reaching implications if her application were granted. Counsel suggested that the blanket prohibition in section 2(1), applied without taking account of particular cases, is wholly disproportionate, and the materials relied on do not justify it. Reference was made to R. v. United Kingdom (1983) 33 DR 270 and Sanles v. Spain [2001] EHRLR 348.", "18. The Secretary of State questioned whether Mrs Pretty's rights under Article 8 were engaged at all, and gave a negative answer. He submitted that the right to private life under Article 8 relates to the manner in which a person conducts his life, not the manner in which he departs from it. Any attempt to base a right to die on Article 8 founders on exactly the same objection as the attempt based on Article 2, namely, that the alleged right would extinguish the very benefit on which it is supposedly based. Article 8 protects the physical, moral and psychological integrity of the individual, including rights over the individual's own body, but there is nothing to suggest that it confers a right to decide when or how to die. The Secretary of State also submitted that, if it were necessary to do so, section 2(1) of the 1961 Act and the current application of it could be fully justified on the merits. He referred to the margin of judgment accorded to member States, the consideration which has been given to these questions in the United Kingdom and the broad consensus among Convention countries. Attention was drawn to Laskey, Jaggard and Brown v. United Kingdom (1997) 24 EHRR 39 in which the criminalisation of consensual acts of injury was held to be justified; it was suggested that the justification for criminalising acts of consensual killing or assisted suicide must be even stronger.", "19. The most detailed and erudite discussion known to me of the issues in the present appeal is to be found in the judgments of the Supreme Court of Canada in Rodriguez v. Attorney General of Canada [1994] 2 LRC 136. The appellant in that case suffered from a disease legally indistinguishable from that which afflicts Mrs Pretty; she was similarly disabled; she sought an order which would allow a qualified medical practitioner to set up technological means by which she might, by her own hand but with that assistance from the practitioner, end her life at a time of her choosing. While suicide in Canada was not a crime, section 241(b) of the Criminal Code was in terms effectively identical to section 2(1) of the 1961 Act. The appellant based her claims on the Canadian Charter of Rights and Freedoms which, so far as relevant, included the following sections:", "' (1) The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.", "(7) Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.", "(12) Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.", "(15) (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.'", "The trial judge rejected Ms Rodriguez'claim, because (as his judgment was summarised at p. 144):", "' It was the illness from which Ms Rodriguez suffers, not the State or the justice system, which has impeded her ability to act on her wishes with respect to the timing and manner of her death.'", "He found no breach of section 12 and said:", "' To interpret section 7 so as to include a constitutionally guaranteed right to take one's own life as an exercise in freedom of choice is inconsistent, in my opinion, with life, liberty and the security of the person.'", "He also held that section 241 did not discriminate against the physically disabled.", "20. The British Columbia Court of Appeal held by a majority (at p. 148) that whilst the operation of section 241 did deprive Ms Rodriguez of her section 7 right to the security of her person, it did not contravene the principles of fundamental justice. McEachern CJ, dissenting, held (at p. 146) that there was a prima facie violation of section 7 when the State imposed prohibitions that had the effect of prolonging the physical and psychological suffering of a person, and that any provision that imposed an indeterminate period of senseless physical and psychological suffering on someone who was shortly to die anyway could not conform with any principle of fundamental justice.", "21. In the Supreme Court opinion was again divided. The judgment of the majority was given by Sopinka J, with La Forest, Gonthier, Iacobucci and Major JJ concurring. In the course of his judgment Sopinka J said (at p. 175):", "' As a threshold issue, I do not accept the submission that the appellant's problems are due to her physical disabilities caused by her terminal illness, and not by governmental action. There is no doubt that the prohibition in section 241(b) will contribute to the appellant's distress if she is prevented from managing her death in the circumstances which she fears will occur.'", "He continued (p. 175):", "' I find more merit in the argument that security of the person, by its nature, cannot encompass a right to take action that will end one's life as security of the person is intrinsically concerned with the well-being of the living person.'", "He then continued (at pp. 177-178):", "' There is no question, then, that personal autonomy, at least with respect to the right to make choices concerning one's own body, control over one's physical and psychological integrity, and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these. The effect of the prohibition in section 241(b) is to prevent the appellant from having assistance to commit suicide when she is no longer able to do so on her own ... In my view, these considerations lead to the conclusion that the prohibition in section 241(b) deprives the appellant of autonomy over her person and causes her physical pain and psychological stress in a manner which impinges on the security of her person. The appellant's security interest (considered in the context of the life and liberty interest) is therefore engaged, and it is necessary to determine whether there has been any deprivation thereof that is not in accordance with the principles of fundamental justice.'", "He concluded (at p. 189) that:", "' Given the concerns about abuse that have been expressed and the great difficulty in creating appropriate safeguards to prevent these, it can not be said that the blanket prohibition on assisted suicide is arbitrary or unfair, or that it is not reflective of fundamental values at play in our society.'", "With reference to section 1 of the Canadian Charter, Sopinka J said (at pp. 192-193):", "' As I have sought to demonstrate in my discussion of section 7, this protection is grounded on a substantial consensus among western countries, medical organisations and our own Law Reform Commission that in order to effectively protect life and those who are vulnerable in society, a prohibition without exception on the giving of assistance to commit suicide is the best approach. Attempts to fine-tune this approach by creating exceptions have been unsatisfactory and have tended to support the theory of the “slippery slope”. The formulation of safeguards to prevent excesses has been unsatisfactory and has failed to allay fears that a relaxation of the clear standard set by the law will undermine the protection of life and will lead to abuse of the exception.'", "He rejected the appellant's claims under sections 12 and 15.", "22. Lamer CJ dissented in favour of the appellant, but on grounds of discrimination under section 15 alone. McLachlin J (with whom L'Heureux-Dubé J concurred) found a violation not of section 15 but of section 7. She saw the case as one about the manner in which the State might limit the right of a person to make decisions about her body under section 7 of the charter (p. 194). At p. 195 she said:", "' In the present case, Parliament has put into force a legislative scheme which does not bar suicide but criminalises the act of assisting suicide. The effect of this is to deny to some people the choice of ending their lives solely because they are physically unable to do so. This deprives Sue Rodriguez of her security of the person (the right to make decisions concerning her own body, which affect only her own body) in a way that offends the principles of fundamental justice, thereby violating section 7 of the Charter ... It is part of the persona and dignity of the human being that he or she have the autonomy to decide what is best for his or her body.'", "She held (p. 197) that", "' it does not accord with the principles of fundamental justice that Sue Rodriguez be disallowed what is available to others merely because it is possible that other people, at some other time, may suffer, not what she seeks, but an act of killing without true consent.'", "Cory J also dissented, agreeing with Lamer CJ and also McLachlin J.", "23. It is evident that all save one of the judges of the Canadian Supreme Court were willing to recognise section 7 of the Canadian charter as conferring a right to personal autonomy extending even to decisions on life and death. Mrs Pretty understandably places reliance in particular on the judgment of McLachlin J, in which two other members of the court concurred. But a majority of the court regarded that right as outweighed on the facts by the principles of fundamental justice. The judgments were moreover directed to a provision with no close analogy in the European Convention. In the European Convention the right to liberty and security of the person appears only in Article 5 § 1, on which no reliance is or could be placed in the present case. Article 8 contains no reference to personal liberty or security. It is directed to the protection of privacy, including the protection of physical and psychological integrity: X and Y v. Netherlands, above. But Article 8 is expressed in terms directed to protection of personal autonomy while individuals are living their lives, and there is nothing to suggest that the Article has reference to the choice to live no longer.", "24. There is no Strasbourg jurisprudence to support the contention of Mrs Pretty. In R. v. United Kingdom (1983) 33 DR 270 the applicant had been convicted and sentenced to imprisonment for aiding and abetting suicide and conspiring to do so. He complained that his conviction and sentence under section 2 of the 1961 Act constituted a violation of his right to respect for his private life under Article 8 and also his right to free expression under Article 10. In paragraph 13 of its decision the commission observed:", "' The Commission does not consider that the activity for which the applicant was convicted, namely aiding and abetting suicide, can be described as falling into the sphere of his private life in the manner elaborated above. While it might be thought to touch directly on the private lives of those who sought to commit suicide, it does not follow that the applicant's rights to privacy are involved. On the contrary, the Commission is of the opinion that the acts of aiding, abetting, counselling or procuring suicide are excluded from the concept of privacy by virtue of their trespass on the public interest of protecting life, as reflected in the criminal provisions of the 1961 Act.'", "This somewhat tentative expression of view is of some assistance to Mrs Pretty, but with reference to the claim under Article 10 the commission continued (in para. 17 of its decision at p. 272):", "' The Commission considers that, in the circumstances of the case, there has been an interference with the applicant's right to impart information. However, the Commission must take account of the State's legitimate interest in this area in taking measures to protect, against criminal behaviour, the life of its citizens particularly those who belong to especially vulnerable categories by reason of their age or infirmity. It recognises the right of the State under the Convention to guard against the inevitable criminal abuses that would occur, in the absence of legislation, against the aiding and abetting of suicide. The fact that in the present case the applicant and his associate appear to have been well intentioned does not, in the Commission's view, alter the justification for the general policy.'", "That conclusion cannot be reconciled with the suggestion that the prohibition of assisted suicide is inconsistent with the Convention.", "25. Sanles v. Spain [2001] EHRLR 348 arose from a factual situation similar to the present save that the victim of disabling disease had died and the case never culminated in a decision on the merits. The applicant was the sister-in-law of the deceased and was held not to be a victim and thus not to be directly affected by the alleged violations. It is of some interest that she based her claims on Articles 2, 3, 5, 9 and 14 of the Convention but not, it seems, on Article 8.", "26. I would for my part accept the Secretary of State's submission that Mrs Pretty's rights under Article 8 are not engaged at all. If, however, that conclusion is wrong, and the prohibition of assisted suicide in section 2 of the 1961 Act infringes her Convention right under Article 8, it is necessary to consider whether the infringement is shown by the Secretary of State to be justifiable under the terms of Article 8 § 2. In considering that question I would adopt the test advocated by counsel for Mrs Pretty, which is clearly laid down in the authorities cited.", "27. Since suicide ceased to be a crime in 1961, the question whether assisted suicide also should be decriminalised has been reviewed on more than one occasion. The Criminal Law Revision Committee in its Fourteenth Report (1980, Cmnd 7844) reported some divergence of opinion among its distinguished legal membership, and recognised a distinction between assisting a person who had formed a settled intention to kill himself and the more heinous case where one person persuaded another to commit suicide, but a majority was of the clear opinion that aiding and abetting suicide should remain an offence (pp. 60-61, para. 135).", "28. Following the decision in Airedale NHS Trust v. Bland [1993] AC 789 a much more broadly constituted House of Lords Select Committee on Medical Ethics received extensive evidence and reported. The Committee in its report (HL 21-1, 1994, p. 11, para. 26) drew a distinction between assisted suicide and physician-assisted suicide but its conclusion was unambiguous (p. 54, para. 262):", "' As far as assisted suicide is concerned, we see no reason to recommend any change in the law. We identify no circumstances in which assisted suicide should be permitted, nor do we see any reason to distinguish between the act of a doctor or of any other person in this connection.'", "The government in its response (May 1994, Cm 2553) accepted this recommendation:", "' We agree with this recommendation. As the Government stated in its evidence to the Committee, the decriminalisation of attempted suicide in 1961 was accompanied by an unequivocal restatement of the prohibition of acts calculated to end the life of another person. The Government can see no basis for permitting assisted suicide. Such a change would be open to abuse and put the lives of the weak and vulnerable at risk.'", "A similar approach is to be found in the Council of Europe's Recommendation 1418 (1999) on the protection of the human rights and dignity of the terminally ill and the dying. This included the following passage (at pp. 2-4):", "' 9. The Assembly therefore recommends that the Committee of Ministers encourage the member States of the Council of Europe to respect and protect the dignity of terminally ill or dying persons in all respects: ...", "(c) by upholding the prohibition against intentionally taking the life of terminally ill or dying persons, while:", "(i) recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member States, in accordance with Article 2 of the European Convention on Human Rights which states that “no one shall be deprived of his life intentionally”;", "(ii) recognising that a terminally ill or dying person's wish to die never constitutes any legal claim to die at the hand of another person;", "(iii) recognising that a terminally ill or dying person's wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death.'", "It would be by no means fatal to the legal validity of section 2(1) of the 1961 Act if the response of the United Kingdom to this problem of assisted suicide were shown to be unique, but it is shown to be in accordance with a very broad international consensus. Assisted suicide and consensual killing are unlawful in all Convention countries except the Netherlands, but even if the Dutch Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2001 and the Dutch Criminal Code were operative in this country it would not relieve Mr Pretty of liability under Article 294 of the Dutch Criminal Code if he were to assist Mrs Pretty to take her own life as he would wish to do.", "29. On behalf of Mrs Pretty counsel disclaims any general attack on section 2(1) of the 1961 Act and seeks to restrict his claim to the particular facts of her case: that of a mentally competent adult who knows her own mind, is free from any pressure and has made a fully informed and voluntary decision. Whatever the need, he submits, to afford legal protection to the vulnerable, there is no justification for a blanket refusal to countenance an act of humanity in the case of someone who, like Mrs Pretty, is not vulnerable at all. Beguiling as that submission is, Dr Johnson gave two answers of enduring validity to it. First,'Laws are not made for particular cases but for men in general.'Second,'To permit a law to be modified at discretion is to leave the community without law. It is to withdraw the direction of that public wisdom by which the deficiencies of private understanding are to be supplied'(Boswell, Life of Johnson, Oxford Standard Authors, 3rd ed., 1970, at pp. 735, 496). It is for member States to assess the risk and likely incidence of abuse if the prohibition on assisted suicide were relaxed, as the commission recognised in its decision in R. v. United Kingdom quoted above in paragraph 24. But the risk is one which cannot be lightly discounted. The Criminal Law Revision Committee recognised how fine was the line between counselling and procuring on the one hand and aiding and abetting on the other (report, p. 61, para. 135). The House of Lords Select Committee recognised the undesirability of anything which could appear to encourage suicide (report, p. 49, para. 239):", "' We are also concerned that vulnerable people – the elderly, lonely, sick or distressed – would feel pressure, whether real or imagined, to request early death. We accept that, for the most part, requests resulting from such pressure or from remediable depressive illness would be identified as such by doctors and managed appropriately. Nevertheless we believe that the message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life.'", "It is not hard to imagine that an elderly person, in the absence of any pressure, might opt for a premature end to life if that were available, not from a desire to die or a willingness to stop living, but from a desire to stop being a burden to others.", "30. If section 2(1) infringes any Convention right of Mrs Pretty, and recognising the heavy burden which lies on a member State seeking to justify such an infringement, I conclude that the Secretary of State has shown ample grounds to justify the existing law and the current application of it. That is not to say that no other law or application would be consistent with the Convention; it is simply to say that the present legislative and practical regime do not offend the Convention.", "Article 9 of the Convention", "31. It is unnecessary to recite the terms of Article 9 of the Convention, to which very little argument was addressed. It is an Article which protects freedom of thought, conscience and religion and the manifestation of religion or belief in worship, teaching, practice or observance. One may accept that Mrs Pretty has a sincere belief in the virtue of assisted suicide. She is free to hold and express that belief. But her belief cannot found a requirement that her husband should be absolved from the consequences of conduct which, although it would be consistent with her belief, is proscribed by the criminal law. And if she were able to establish an infringement of her right, the justification shown by the State in relation to Article 8 would still defeat it.", "Article 14 of the Convention", "32. Article 14 of the Convention provides: ...", "Mrs Pretty claims that section 2(1) of the 1961 Act discriminates against those who, like herself, cannot because of incapacity take their own lives without assistance. She relies on the judgment of the European Court of Human Rights in Thlimmenos v. Greece (2000) 31 EHRR 411 where the court said (at p. 424, para. 44):", "' The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification. However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.'", "33. The European Court of Human Rights has repeatedly held that Article 14 is not autonomous but has effect only in relation to Convention rights. As it was put in Van Raalte v. Netherlands (1997) 24 EHRR 503 at p. 516, para. 33:", "' As the Court has consistently held, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter.'", "See also Botta v. Italy (1998) 26 EHRR 241 at p. 259, para. 39.", "34. If, as I have concluded, none of the Articles on which Mrs Pretty relies gives her the right which she has claimed, it follows that Article 14 would not avail her even if she could establish that the operation of section 2(1) is discriminatory. A claim under this Article must fail on this ground.", "35. If, contrary to my opinion, Mrs Pretty's rights under one or other of the Articles are engaged, it would be necessary to examine whether section 2(1) of the 1961 Act is discriminatory. She contends that the section is discriminatory because it prevents the disabled, but not the able-bodied, exercising their right to commit suicide. This argument is in my opinion based on a misconception. The law confers no right to commit suicide. Suicide was always, as a crime, anomalous, since it was the only crime with which no defendant could ever be charged. The main effect of the criminalisation of suicide was to penalise those who attempted to take their own lives and failed, and secondary parties. Suicide itself (and with it attempted suicide) was decriminalised because recognition of the common law offence was not thought to act as a deterrent, because it cast an unwarranted stigma on innocent members of the suicide's family and because it led to the distasteful result that patients recovering in hospital from a failed suicide attempt were prosecuted, in effect, for their lack of success. But while the 1961 Act abrogated the rule of law whereby it was a crime for a person to commit (or attempt to commit) suicide, it conferred no right on anyone to do so. Had that been its object there would have been no justification for penalising by a potentially very long term of imprisonment one who aided, abetted, counselled or procured the exercise or attempted exercise by another of that right. The policy of the law remained firmly adverse to suicide, as section 2(1) makes clear.", "36. The criminal law cannot in any event be criticised as objectionably discriminatory because it applies to all. Although in some instances criminal statutes recognise exceptions based on youth, the broad policy of the criminal law is to apply offence-creating provisions to all and to give weight to personal circumstances either at the stage of considering whether or not to prosecute or, in the event of conviction, when penalty is to be considered. The criminal law does not ordinarily distinguish between willing victims and others: Laskey Jaggard and Brown v. United Kingdom (1997) 24 EHRR 39. Provisions criminalising drunkenness or misuse of drugs or theft do not exempt those addicted to alcohol or drugs, or the poor and hungry.'Mercy killing', as it is often called, is in law killing. If the criminal law sought to proscribe the conduct of those who assisted the suicide of the vulnerable, but exonerated those who assisted the suicide of the non-vulnerable, it could not be administered fairly and in a way which would command respect.", "37. For these reasons, which are in all essentials those of the Divisional Court, and in agreement with my noble and learned friends Lord Steyn and Lord Hope of Craighead, I would hold that Mrs Pretty cannot establish any breach of any Convention right.", "The claim against the Director", "38. That conclusion makes it strictly unnecessary to review the main ground on which the Director resisted the claim made against him: that he had no power to grant the undertaking which Mrs Pretty sought.", "39. I would for my part question whether, as suggested on his behalf, the Director might not if so advised make a public statement on his prosecuting policy other than in the Code for Crown Prosecutors which he is obliged to issue by section 10 of the Prosecution of Offences Act 1985. Plainly such a step would call for careful consultation and extreme circumspection, and could be taken only under the superintendence of the Attorney General (by virtue of section 3 of the 1985 Act). The Lord Advocate has on occasion made such a statement in Scotland, and I am not persuaded that the Director has no such power. It is, however, unnecessary to explore or resolve that question, since whether or not the Director has the power to make such a statement he has no duty to do so, and in any event what was asked of the Director in this case was not a statement of prosecuting policy but a proleptic grant of immunity from prosecution. That, I am quite satisfied, the Director had no power to give. The power to dispense with and suspend laws and the execution of laws without the consent of Parliament was denied to the crown and its servants by the Bill of Rights 1688. Even if, contrary to my opinion, the Director had power to give the undertaking sought, he would have been very wrong to do so in this case. If he had no reason for doubting, equally he had no means of investigating, the assertions made on behalf of Mrs Pretty. He received no information at all concerning the means proposed for ending Mrs Pretty's life. No medical supervision was proposed. The obvious risk existed that her condition might worsen to the point where she could herself do nothing to bring about her death. It would have been a gross dereliction of the Director's duty and a gross abuse of his power had he ventured to undertake that a crime yet to be committed would not lead to prosecution. The claim against him must fail on this ground alone.", "40. I would dismiss this appeal.”", "15. The other judges concurred with his conclusions. Lord Hope stated as regarded Article 8 of the Convention:", "“100. ... Respect for a person's'private life', which is the only part of Article 8 which is in play here, relates to the way a person lives. The way she chooses to pass the closing moments of her life is part of the act of living, and she has a right to ask that this too must be respected. In that respect Mrs Pretty has the right of self-determination. In that sense, her private life is engaged even where in the face of terminal illness she seeks to choose death rather than life. But it is an entirely different thing to imply into these words a positive obligation to give effect to her wish to end her own life by means of an assisted suicide. I think that to do so would be to stretch the meaning of the words too far.”", "i. recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member States, in accordance with Article 2 of the European Convention on Human Rights which states that'no one shall be deprived of his life intentionally';", "ii. recognising that a terminally ill or dying person's wish to die never constitutes any legal claim to die at the hand of another person;", "iii. recognising that a terminally ill or dying person's wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death.”", "IV. THIRD-PARTY INTERVENTIONS", "A. Voluntary Euthanasia Society", "25. The Voluntary Euthanasia Society, established in 1935 and being a leading research organisation in the United Kingdom on issues related to assisted dying, submitted that as a general proposition individuals should have the opportunity to die with dignity and that an inflexible legal regime that had the effect of forcing an individual, who was suffering unbearably from a terminal illness, to die a painful protracted death with indignity, contrary to his or her express wishes, was in breach of Article 3 of the Convention. They referred to the reasons why persons requested assisted deaths (for example unrelieved and severe pain, weariness of the dying process, loss of autonomy). Palliative care could not meet the needs of all patients and did not address concerns of loss of autonomy and loss of control of bodily functions.", "26. They submitted that in comparison with other countries in Europe the regime in England and Wales, which prohibited assisted dying in absolute terms, was the most restrictive and inflexible in Europe. Only Ireland compared. Other countries (for example Belgium, Switzerland, Germany, France, Finland, Sweden and the Netherlands, where assistance must be sought from a medical practitioner) had abolished the specific offence of assisting suicide. In other countries, the penalties for such offences had been downgraded – in no country, save Spain, did the maximum penalty exceed five years'imprisonment – and criminal proceedings were rarely brought.", "27. As regarded public-policy issues, they submitted that whatever the legal position, voluntary euthanasia and assisted dying took place. It was well known in England and Wales that patients asked for assistance to die and that members of the medical profession and relatives provided that assistance, notwithstanding that it might be against the criminal law and in the absence of any regulation. As recognised by the Netherlands government, therefore, the criminal law did not prevent voluntary euthanasia or assisted dying. The situation in the Netherlands indicated that in the absence of regulation slightly less than 1% of deaths were due to doctors having ended the life of a patient without the latter explicitly requesting this (non-voluntary euthanasia). Similar studies indicated a figure of 3.1% in Belgium and 3.5% in Australia. It might therefore be the case that less attention was given to the requirements of a careful end-of-life practice in a society with a restrictive legal approach than in one with an open approach that tolerated and regulated euthanasia. The data did not support the assertion that, in institutionalising voluntary euthanasia/physician-assisted suicide, society put the vulnerable at risk. At least with a regulated system, there was the possibility of far greater consultation and a reporting mechanism to prevent abuse, along with other safeguards, such as waiting periods.", "B. Catholic Bishops'Conference of England and Wales", "28. This organisation put forward principles and arguments which it stated were consonant with those expressed by other Catholic bishops'conferences in other member States.", "29. They emphasised that it was a fundamental tenet of the Catholic faith that human life was a gift from God received in trust. Actions with the purpose of killing oneself or another, even with consent, reflected a damaging misunderstanding of the human worth. Suicide and euthanasia were therefore outside the range of morally acceptable options in dealing with human suffering and dying. These fundamental truths were also recognised by other faiths and by modern pluralist and secular societies, as shown by Article 1 of the Universal Declaration of Human Rights (December 1948) and the provisions of the European Convention on Human Rights, in particular in Articles 2 and 3 thereof.", "30. They pointed out that those who attempted suicide often suffered from depression or other psychiatric illness. The 1994 report of the New York State Task Force on Life and Law concluded on that basis that the legalising of any form of assisted suicide or any form of euthanasia would be a mistake of historic proportions, with catastrophic consequences for the vulnerable and an intolerable corruption of the medical profession. Other research indicated that many people who requested physician-assisted suicide withdrew that request if their depression and pain were treated. In their experience, palliative care could in virtually every case succeed in substantially relieving a patient of physical and psychosomatic suffering.", "31. The House of Lords Select Committee on Medical Ethics (1993-94) had solid reasons for concluding, after consideration of the evidence (on a scale vastly exceeding that available in these proceedings), that any legal permission for assistance in suicide would result in massive erosion of the rights of the vulnerable, flowing from the pressure of legal principle and consistency and the psychological and financial conditions of medical practice and health-care provision in general. There was compelling evidence to suggest that once a limited form of euthanasia was permitted under the law it was virtually impossible to confine its practice within the necessary limits to protect the vulnerable (see, for example, the Netherlands government's study of deaths in 1990, recording cases of euthanasia without the patients'explicit request)." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Suicide, assisted suicide and consensual killing", "16. Suicide ceased to be a crime in England and Wales by virtue of the Suicide Act 1961. However, section 2(1) of the Act provides:", "“A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.”", "Section 2(4) provides:", "“No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.”", "17. Case-law has established that an individual may refuse to accept life-prolonging or life-preserving treatment:", "“First it is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so ... To this extent, the principle of the sanctity of human life must yield to the principle of self-determination ...” (Lord Goff in Airedale NHS Trust v. Bland [1993] AC 789, at p. 864)", "18. This principle has been most recently affirmed in Ms B. v. an NHS Hospital, Court of Appeal judgment of 22 March 2002. It has also been recognised that “dual effect” treatment can be lawfully administered, that is treatment calculated to ease a patient's pain and suffering which might also, as a side-effect, shorten their life expectancy (see, for example, Re J [1991] Fam 3).", "B. Domestic review of the legislative position", "19. In March 1980 the Criminal Law Revision Committee issued its fourteenth report, “Offences against the Person” (Cmnd 7844), in which it reviewed, inter alia, the law relating to the various forms of homicide and the applicable penalties. In Section F, the situation known as mercy killing was discussed. The previous suggestion of a new offence applying to a person who from compassion unlawfully killed another person permanently subject, for example, to great bodily pain and suffering and for which a two-year maximum sentence was applicable, was unanimously withdrawn. It was noted that the vast majority of the persons and bodies consulted were against the proposal on principle and on pragmatic grounds. Reference was made also to the difficulties of definition and the possibility that the “suggestion would not prevent suffering but would cause suffering, since the weak and handicapped would receive less effective protection from the law than the fit and well”.", "20. It did however recommend that the penalty for assisting suicide be reduced to seven years, as being sufficiently substantial to protect helpless persons open to persuasion by the unscrupulous.", "21. On 31 January 1994 the report of the House of Lords Select Committee on Medical Ethics (HL Paper 21-I) was published following its inquiry into the ethical, legal and clinical implications of a person's right to withhold consent to life-prolonging treatment, the position of persons unable to give or withhold consent and whether and in what circumstances the shortening of another person's life might be justified on the grounds that it accorded with that person's wishes or best interests. The Committee had heard oral evidence from a variety of government, medical, legal and non-governmental sources and received written submissions from numerous interested parties who addressed the ethical, philosophical, religious, moral, clinical, legal and public-policy aspects.", "22. It concluded, as regards voluntary euthanasia:", "“236. The right to refuse medical treatment is far removed from the right to request assistance in dying. We spent a long time considering the very strongly held and sincerely expressed views of those witnesses who advocated voluntary euthanasia. Many of us have had experience of relatives or friends whose dying days or weeks were less than peaceful or uplifting, or whose final stages of life were so disfigured that the loved one seemed already lost to us, or who were simply weary of life ... Our thinking must also be coloured by the wish of every individual for a peaceful and easy death, without prolonged suffering, and by a reluctance to contemplate the possibility of severe dementia or dependence. We gave much thought too to Professor Dworkin's opinion that, for those without religious belief, the individual is best able to decide what manner of death is fitting to the life that has been lived.", "237. Ultimately, however, we do not believe that these arguments are sufficient reason to weaken society's prohibition of intentional killing. That prohibition is the cornerstone of law and of social relationships. It protects each one of us impartially, embodying the belief that all are equal. We do not wish that protection to be diminished and we therefore recommend that there should be no change in the law to permit euthanasia. We acknowledge that there are individual cases in which euthanasia may be seen by some to be appropriate. But individual cases cannot reasonably establish the foundation of a policy which would have such serious and widespread repercussions. Moreover, dying is not only a personal or individual affair. The death of a person affects the lives of others, often in ways and to an extent which cannot be foreseen. We believe that the issue of euthanasia is one in which the interest of the individual cannot be separated from the interest of society as a whole.", "238. One reason for this conclusion is that we do not think it possible to set secure limits on voluntary euthanasia ...", "239. We are also concerned that vulnerable people – the elderly, sick or distressed – would feel pressure, whether real or imagined, to request early death. We accept that, for the most part, requests resulting from such pressure or from remediable depressive illness would be identified as such by doctors and managed appropriately. Nevertheless we believe that the message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life ...”", "23. In light of the above, the Select Committee on Medical Ethics also recommended no change to the legislation concerning assisted suicide (paragraph 262).", "III. RELEVANT INTERNATIONAL MATERIALS", "24. Recommendation 1418 (1999) of the Parliamentary Assembly of the Council of Europe recommended, inter alia, as follows (paragraph 9):", "“... that the Committee of Ministers encourage the member States of the Council of Europe to respect and protect the dignity of terminally ill or dying persons in all respects:", "...", "c. by upholding the prohibition against intentionally taking the life of terminally ill or dying persons, while:", "THE LAW", "I. ADMISSIBILITY OF THE APPLICATION", "32. The applicant, who is suffering from an incurable, degenerative disease, argued that fundamental rights under the Convention had been violated in her case by the refusal of the Director of Public Prosecutions to give an undertaking not to prosecute her husband if he were to assist her to end her life and by the state of English law which rendered assisted suicide in her case a criminal offence. The Government submitted that the application should be dismissed as manifestly ill-founded on the grounds either that the applicant's complaints did not engage any of the rights relied on by her or that any interferences with those rights were justified in terms of the exceptions allowed by the Convention's provisions.", "33. The Court considers that the application as a whole raises questions of law which are sufficiently serious that their determination should depend on an examination of the merits. No other ground for declaring it inadmissible has been established. The application must therefore be declared admissible. Pursuant to Article 29 § 3 of the Convention, the Court will now consider the merits of the applicant's complaints.", "II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "34. The relevant parts of Article 2 of the Convention provide:", "“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:", "(a) in defence of any person from unlawful violence;", "(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;", "(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”", "A. Submissions of the parties", "1. The applicant", "35. The applicant submitted that permitting her to be assisted in committing suicide would not be in conflict with Article 2 of the Convention, otherwise those countries in which assisted suicide was not unlawful would be in breach of this provision. Furthermore, Article 2 protected not only the right to life but also the right to choose whether or not to go on living. It protected the right to life and not life itself, while the sentence concerning deprivation of life was directed towards protecting individuals from third parties, namely the State and public authorities, not from themselves. Article 2 therefore acknowledged that it was for the individual to choose whether or not to go on living and protected her right to die to avoid inevitable suffering and indignity as the corollary of the right to life. In so far as the Keenan case referred to by the Government indicated that an obligation could arise for prison authorities to protect a prisoner who tried to take his own life, the obligation only arose because he was a prisoner and lacked, due to his mental illness, the capacity to take a rational decision to end his life (see Keenan v. the United Kingdom, no. 27229/95, ECHR 2001-III).", "2. The Government", "36. The Government submitted that the applicant's reliance on Article 2 was misconceived, being unsupported by direct authority and being inconsistent with existing authority and with the language of the provision. Article 2, guaranteeing one of the most fundamental rights, imposed primarily a negative obligation. Although it had in some cases been found to impose positive obligations, this concerned steps appropriate to safeguard life. In previous cases the State's responsibility under Article 2 to protect a prisoner had not been affected by the fact that he committed suicide (see Keenan, cited above) and it had also been recognised that the State was entitled to force-feed a prisoner on hunger strike (see X v. Germany, no. 10565/83, Commission decision of 9 May 1984, unreported). The wording of Article 2 expressly provided that no one should be deprived of their life intentionally, save in strictly limited circumstances which did not apply in the present case. The right to die was not the corollary, but the antithesis of the right to life.", "B. The Court's assessment", "37. The Court's case-law accords pre-eminence to Article 2 as one of the most fundamental provisions of the Convention (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-47). It safeguards the right to life, without which enjoyment of any of the other rights and freedoms in the Convention is rendered nugatory. It sets out the limited circumstances when deprivation of life may be justified and the Court has applied a strict scrutiny when those exceptions have been relied on by the respondent States (ibid., p. 46, §§ 149-50).", "38. The text of Article 2 expressly regulates the deliberate or intended use of lethal force by State agents. However, it has been interpreted as covering not only intentional killing but also the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life (ibid., p. 46, § 148). Furthermore, the Court has held that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36). This obligation extends beyond a primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions; it may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, p. 3159, § 115, and Kılıç v. Turkey, no. 22492/93, §§ 62 and 76, ECHR 2000-III). More recently, in Keenan, Article 2 was found to apply to the situation of a mentally ill prisoner who disclosed signs of being a suicide risk (see Keenan, cited above, § 91).", "39. The consistent emphasis in all the cases before the Court has been the obligation of the State to protect life. The Court is not persuaded that “the right to life” guaranteed in Article 2 can be interpreted as involving a negative aspect. While, for example in the context of Article 11 of the Convention, the freedom of association has been found to involve not only a right to join an association but a corresponding right not to be forced to join an association, the Court observes that the notion of a freedom implies some measure of choice as to its exercise (see Young, James and Webster v. the United Kingdom, judgment of 13 August 1981, Series A no. 44, pp. 21-22, § 52, and Sigurđur A. Sigurjónsson v. Iceland, judgment of 30 June 1993, Series A no. 264, pp. 15-16, § 35). Article 2 of the Convention is phrased in different terms. It is unconcerned with issues to do with the quality of living or what a person chooses to do with his or her life. To the extent that these aspects are recognised as so fundamental to the human condition that they require protection from State interference, they may be reflected in the rights guaranteed by other Articles of the Convention, or in other international human rights instruments. Article 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life.", "40. The Court accordingly finds that no right to die, whether at the hands of a third person or with the assistance of a public authority, can be derived from Article 2 of the Convention. It is confirmed in this view by the recent Recommendation 1418 (1999) of the Parliamentary Assembly of the Council of Europe (see paragraph 24 above).", "41. The applicant has argued that a failure to acknowledge a right to die under the Convention would place those countries which do permit assisted suicide in breach of the Convention. It is not for the Court in this case to attempt to assess whether or not the state of law in any other country fails to protect the right to life. As it recognised in Keenan, the measures which may reasonably be taken to protect a prisoner from self-harm will be subject to the restraints imposed by other provisions of the Convention, such as Articles 5 and 8, as well as more general principles of personal autonomy (see Keenan, cited above, § 92 ). Similarly, the extent to which a State permits, or seeks to regulate, the possibility for the infliction of harm on individuals at liberty, by their own or another's hand, may raise conflicting considerations of personal freedom and the public interest that can only be resolved on examination of the concrete circumstances of the case (see, mutatis mutandis, Laskey, Jaggard and Brown v. the United Kingdom, judgment of 19 February 1997, Reports 1997-I). However, even if circumstances prevailing in a particular country which permitted assisted suicide were found not to infringe Article 2 of the Convention, that would not assist the applicant in this case, where the very different proposition – that the United Kingdom would be in breach of its obligations under Article 2 if it did not allow assisted suicide – has not been established.", "42. The Court finds that there has been no violation of Article 2 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "43. Article 3 of the Convention provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Submissions of the parties", "1. The applicant", "44. Before the Court, the applicant focused her complaints principally on Article 3 of the Convention. She submitted that the suffering which she faced qualified as degrading treatment under Article 3 of the Convention. She suffered from a terrible, irreversible disease in its final stages and she would die in an exceedingly distressing and undignified manner as the muscles which controlled her breathing and swallowing weakened to the extent that she would develop respiratory failure and pneumonia. While the Government were not directly responsible for that treatment, it was established under the Court's case-law that under Article 3 the State owed to its citizens not only a negative obligation to refrain from inflicting such treatment but also a positive obligation to protect people from it. In this case, this obligation was to take steps to protect her from the suffering which she would otherwise have to endure.", "45. The applicant argued that there was no room under Article 3 of the Convention for striking a balance between her right to be protected from degrading treatment and any competing interest of the community, as the right was an absolute one. In any event, the balance struck was disproportionate as English law imposed a blanket ban on assisting suicide regardless of the individual circumstances of the case. As a result of this blanket ban, the applicant had been denied the right to be assisted by her husband in avoiding the suffering awaiting her without any consideration having been given to the unique facts of her case, in particular that her intellect and capacity to make decisions were unimpaired by the disease, that she was neither vulnerable nor in need of protection, that her imminent death could not be avoided, that if the disease ran its course she would endure terrible suffering and indignity and that no one else was affected by her wish for her husband to assist her save for him and their family who were wholly supportive of her decision. Without such consideration of the facts of the case, the rights of the individual could not be protected.", "46. The applicant also disputed that there was any scope for allowing any margin of appreciation under Article 3 of the Convention, although if there was, the Government could not be entitled to rely on such a margin in defence of a statutory scheme operated in such a way as to involve no consideration of her concrete circumstances. The applicant rejected as offensive the assertion of the Government that all those who were terminally ill or disabled and contemplating suicide were by definition vulnerable and that a blanket ban was necessary so as to protect them. Any concern as to protecting those who were vulnerable could be met by providing a scheme whereby assisted suicide was lawful provided that the individual in question could demonstrate that she had the capacity to come to such a decision and was not in need of protection.", "2. The Government", "47. The Government submitted that Article 3 was not engaged in this case. The primary obligation imposed by this provision was negative: the State must not inflict torture or inhuman or degrading treatment or punishment. The applicant's case was based rather on alleged positive obligations. The Court's case-law indicated that where positive obligations arose they were not absolute but must be interpreted in such a way as not to impose an impossible or disproportionate burden on the authorities. Positive obligations had hitherto been found to arise in three situations: where the State was under a duty to protect the health of a person deprived of liberty, where the State was required to take steps to ensure that persons within its jurisdiction were not subjected to torture or other prohibited treatment at the hands of private individuals and where the State proposed to take action in relation to an individual which would result in the infliction by another of inhuman or degrading treatment on him. None of these circumstances were relevant in the applicant's case, as she was not being mistreated by anyone, she was not complaining about the absence of medical treatment and no State action was being taken against her.", "48. Even if Article 3 were engaged, it did not confer a legally enforceable right to die. In assessing the scope of any positive obligation, it was appropriate to have regard to the margin of appreciation properly afforded to the State in maintaining section 2 of the Suicide Act 1961. The Government submitted that the prohibition on assisted suicide struck a fair balance between the rights of the individual and the interests of the community, in particular as it properly respected the sanctity of life and pursued a legitimate objective, namely protecting the vulnerable; the matter had been carefully considered over the years by the Criminal Law Revision Committee and the House of Lords Select Committee on Medical Ethics; there were powerful arguments, and some evidence, to suggest that legalising voluntary euthanasia led inevitably to the practice of involuntary euthanasia; and the State had an interest in protecting the lives of the vulnerable, in which context they argued that anyone contemplating suicide would necessarily be psychologically and emotionally vulnerable, even if they were physically fit while those with disabilities might be in a more precarious position as being unable effectively to communicate their views. Furthermore, there was a general consensus in Council of Europe countries, where assisted suicide and consensual killing were unlawful in all countries except in the Netherlands. This consensus was also reflected in other jurisdictions outside Europe.", "B. The Court's assessment", "49. Article 3 of the Convention, together with Article 2, must be regarded as one of the most fundamental provisions of the Convention and as enshrining core values of the democratic societies making up the Council of Europe (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 34, § 88). In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention.", "50. An examination of the Court's case-law indicates that Article 3 has been most commonly applied in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanated from intentionally inflicted acts of State agents or public authorities (see, amongst other authorities, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25). It may be described in general terms as imposing a primarily negative obligation on States to refrain from inflicting serious harm on persons within their jurisdiction. However, in light of the fundamental importance of Article 3, the Court has reserved to itself sufficient flexibility to address the application of that Article in other situations that might arise (see D. v. the United Kingdom, judgment of 2 May 1997, Reports 1997-III, p. 792, § 49).", "51. In particular, the Court has held that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment or punishment, including such treatment administered by private individuals (see A. v. the United Kingdom, judgment of 23 September 1998, Reports 1998-VI, p. 2699, § 22). A positive obligation on the State to provide protection against inhuman or degrading treatment has been found to arise in a number of cases: see, for example, A. v. the United Kingdom (cited above) where the child applicant had been caned by his stepfather, and Z and Others v. the United Kingdom ([GC], no. 29392/95, ECHR 2001-V), where four child applicants were severely abused and neglected by their parents. Article 3 also imposes requirements on State authorities to protect the health of persons deprived of liberty (see Keenan, cited above, concerning the lack of effective medical care of a mentally ill prisoner who committed suicide, and also Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).", "52. As regards the types of “treatment” which fall within the scope of Article 3 of the Convention, the Court's case-law refers to “ill-treatment” that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering (see Ireland v. the United Kingdom, cited above, p. 66, § 167; V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX). Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see amongst recent authorities, Price v. the United Kingdom, no. 33394/96, §§ 24-30, ECHR 2001-VII, and Valašinas v. Lithuania, no. 44558/98, § 117, ECHR 2001-VIII). The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (see D. v. the United Kingdom and Keenan, both cited above, and Bensaid v. the United Kingdom, no. 44599/98, ECHR 2000-I).", "53. In the present case, it is beyond dispute that the respondent State has not, itself, inflicted any ill-treatment on the applicant. Nor is there any complaint that the applicant is not receiving adequate care from the State medical authorities. The situation of the applicant is therefore not comparable with that in D. v. the United Kingdom, in which an AIDS sufferer was threatened with removal from the United Kingdom to the island of St Kitts where no effective medical or palliative treatment for his illness was available and he would have been exposed to the risk of dying under the most distressing circumstances. The responsibility of the State would have been engaged by its act (“treatment”) of removing him in those circumstances. There is no comparable act or “treatment” on the part of the United Kingdom in the present case.", "54. The applicant has claimed rather that the refusal of the DPP to give an undertaking not to prosecute her husband if he assisted her to commit suicide and the criminal-law prohibition on assisted suicide disclose inhuman and degrading treatment for which the State is responsible as it will thereby be failing to protect her from the suffering which awaits her as her illness reaches its ultimate stages. This claim, however, places a new and extended construction on the concept of treatment, which, as found by the House of Lords, goes beyond the ordinary meaning of the word. While the Court must take a dynamic and flexible approach to the interpretation of the Convention, which is a living instrument, any interpretation must also accord with the fundamental objectives of the Convention and its coherence as a system of human rights protection. Article 3 must be construed in harmony with Article 2, which hitherto has been associated with it as reflecting basic values respected by democratic societies. As found above, Article 2 of the Convention is first and foremost a prohibition on the use of lethal force or other conduct which might lead to the death of a human being and does not confer any right on an individual to require a State to permit or facilitate his or her death.", "55. The Court cannot but be sympathetic to the applicant's apprehension that without the possibility of ending her life she faces the prospect of a distressing death. It is true that she is unable to commit suicide herself due to physical incapacity and that the state of law is such that her husband faces the risk of prosecution if he renders her assistance. Nonetheless, the positive obligation on the part of the State which is relied on in the present case would not involve the removal or mitigation of harm by, for instance, preventing any ill-treatment by public bodies or private individuals or providing improved conditions or care. It would require that the State sanction actions intended to terminate life, an obligation that cannot be derived from Article 3 of the Convention.", "56. The Court therefore concludes that no positive obligation arises under Article 3 of the Convention to require the respondent State either to give an undertaking not to prosecute the applicant's husband if he assisted her to commit suicide or to provide a lawful opportunity for any other form of assisted suicide. There has, accordingly, been no violation of this provision.", "IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "57. Article 8 of the Convention provides as relevant:", "“1. Everyone has the right to respect for his private and family life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Submissions of the parties", "1. The applicant", "58. The applicant argued that, while the right to self-determination ran like a thread through the Convention as a whole, it was Article 8 in which that right was most explicitly recognised and guaranteed. It was clear that the right to self-determination encompassed the right to make decisions about one's body and what happened to it. She submitted that this included the right to choose when and how to die and that nothing could be more intimately connected to the manner in which a person conducted her life than the manner and timing of her death. It followed that the DPP's refusal to give an undertaking and the State's blanket ban on assisted suicide interfered with her rights under Article 8 § 1.", "59. The applicant argued that there must be particularly serious reasons for interfering with such an intimate part of her private life. However, the Government had failed to show that the interference was justified as no consideration had been given to her individual circumstances. She referred here to the arguments also raised in the context of Article 3 of the Convention (see paragraphs 45-46 above).", "2. The Government", "60. The Government argued that the rights under Article 8 were not engaged as the right to private life did not include a right to die. It covered the manner in which a person conducted her life, not the manner in which she departed from it. Otherwise, the alleged right would extinguish the very benefit on which it was based. Even if they were wrong on this, any interference with rights under Article 8 would be fully justified. The State was entitled, within its margin of appreciation, to determine the extent to which individuals could consent to the infliction of injuries on themselves and so was even more clearly entitled to determine whether a person could consent to being killed.", "B. The Court's assessment", "1. Applicability of Article 8 § 1 of the Convention", "61. As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 22). It can sometimes embrace aspects of an individual's physical and social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I). Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8 (see, for example, B. v. France, judgment of 25 March 1992, Series A no. 232-C, pp. 53-54, § 63; Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 28, § 24; Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, pp. 18-19, § 41; and Laskey, Jaggard and Brown, cited above, p. 131, § 36). Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Burghartz, cited above, opinion of the Commission, p. 37, § 47, and Friedl v. Austria, judgment of 31 January 1995, Series A no. 305-B, opinion of the Commission, p. 20, § 45). Although no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.", "62. The Government have argued that the right to private life cannot encapsulate a right to die with assistance, such being a negation of the protection that the Convention was intended to provide. The Court would observe that the ability to conduct one's life in a manner of one's own choosing may also include the opportunity to pursue activities perceived to be of a physically or morally harmful or dangerous nature for the individual concerned. The extent to which a State can use compulsory powers or the criminal law to protect people from the consequences of their chosen lifestyle has long been a topic of moral and jurisprudential discussion, the fact that the interference is often viewed as trespassing on the private and personal sphere adding to the vigour of the debate. However, even where the conduct poses a danger to health or, arguably, where it is of a life-threatening nature, the case-law of the Convention institutions has regarded the State's imposition of compulsory or criminal measures as impinging on the private life of the applicant within the meaning of Article 8 § 1 and requiring justification in terms of the second paragraph (see, for example, concerning involvement in consensual sado-masochistic activities which amounted to assault and wounding, Laskey, Jaggard and Brown, cited above, and concerning refusal of medical treatment, Acmanne and Others v. Belgium, no. 10435/83, Commission decision of 10 December 1984, Decisions and Reports (DR) 40, p. 251).", "63. While it might be pointed out that death was not the intended consequence of the applicants'conduct in the above situations, the Court does not consider that this can be a decisive factor. In the sphere of medical treatment, the refusal to accept a particular treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person's physical integrity in a manner capable of engaging the rights protected under Article 8 § 1 of the Convention. As recognised in domestic case-law, a person may claim to exercise a choice to die by declining to consent to treatment which might have the effect of prolonging his life (see paragraphs 17-18 above).", "64. In the present case, although medical treatment is not an issue, the applicant is suffering from the devastating effects of a degenerative disease which will cause her condition to deteriorate further and increase her physical and mental suffering. She wishes to mitigate that suffering by exercising a choice to end her life with the assistance of her husband. As stated by Lord Hope, the way she chooses to pass the closing moments of her life is part of the act of living, and she has a right to ask that this too must be respected (see paragraph 15 above).", "65. The very essence of the Convention is respect for human dignity and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, the Court considers that it is under Article 8 that notions of the quality of life take on significance. In an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity.", "66. In Rodriguez v. the Attorney General of Canada ([1994] 2 Law Reports of Canada 136), which concerned a not dissimilar situation to the present, the majority opinion of the Supreme Court considered that the prohibition on the appellant in that case receiving assistance in suicide contributed to her distress and prevented her from managing her death. This deprived her of autonomy and required justification under principles of fundamental justice. Although the Canadian court was considering a provision of the Canadian Charter framed in different terms from those of Article 8 of the Convention, comparable concerns arose regarding the principle of personal autonomy in the sense of the right to make choices about one's own body.", "67. The applicant in this case is prevented by law from exercising her choice to avoid what she considers will be an undignified and distressing end to her life. The Court is not prepared to exclude that this constitutes an interference with her right to respect for private life as guaranteed under Article 8 § 1 of the Convention. It considers below whether this interference conforms with the requirements of the second paragraph of Article 8.", "2. Compliance with Article 8 § 2 of the Convention", "68. An interference with the exercise of an Article 8 right will not be compatible with Article 8 § 2 unless it is “in accordance with the law”, has an aim or aims that is or are legitimate under that paragraph and is “necessary in a democratic society” for the aforesaid aim or aims (see Dudgeon, cited above, p. 19, § 43).", "69. The only issue arising from the arguments of the parties is the necessity of any interference, it being common ground that the restriction on assisted suicide in this case was imposed by law and in pursuit of the legitimate aim of safeguarding life and thereby protecting the rights of others.", "70. According to the Court's established case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued; in determining whether an interference is “necessary in a democratic society”, the Court will take into account that a margin of appreciation is left to the national authorities, whose decision remains subject to review by the Court for conformity with the requirements of the Convention. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake.", "71. The Court recalls that the margin of appreciation has been found to be narrow as regards interferences in the intimate area of an individual's sexual life (see Dudgeon, cited above, p. 21, § 52, and A.D.T. v. the United Kingdom, no. 35765/97, § 37, ECHR 2000-IX). Although the applicant has argued that there must therefore be particularly compelling reasons for the interference in her case, the Court does not find that the matter under consideration in this case can be regarded as of the same nature, or as attracting the same reasoning.", "72. The parties'arguments have focused on the proportionality of the interference as disclosed in the applicant's case. The applicant attacked in particular the blanket nature of the ban on assisted suicide as failing to take into account her situation as a mentally competent adult who knows her own mind, who is free from pressure and who has made a fully informed and voluntary decision, and therefore cannot be regarded as vulnerable and requiring protection. This inflexibility means, in her submission, that she will be compelled to endure the consequences of her incurable and distressing illness, at a very high personal cost.", "73. The Court would note that although the Government argued that the applicant, as a person who is both contemplating suicide and severely disabled, must be regarded as vulnerable, this assertion is not supported by the evidence before the domestic courts or by the judgments of the House of Lords which, while emphasising that the law in the United Kingdom was there to protect the vulnerable, did not find that the applicant was in that category.", "74. Nonetheless, the Court finds, in agreement with the House of Lords and the majority of the Canadian Supreme Court in Rodriguez, that States are entitled to regulate through the operation of the general criminal law activities which are detrimental to the life and safety of other individuals (see also Laskey, Jaggard and Brown, cited above, pp. 132-33, § 43). The more serious the harm involved the more heavily will weigh in the balance considerations of public health and safety against the countervailing principle of personal autonomy. The law in issue in this case, section 2 of the 1961 Act, was designed to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life. Doubtless the condition of terminally ill individuals will vary. But many will be vulnerable and it is the vulnerability of the class which provides the rationale for the law in question. It is primarily for States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created. Clear risks of abuse do exist, notwithstanding arguments as to the possibility of safeguards and protective procedures.", "75. The applicant's counsel attempted to persuade the Court that a finding of a violation in this case would not create a general precedent or any risk to others. It is true that it is not this Court's role under Article 34 of the Convention to issue opinions in the abstract but to apply the Convention to the concrete facts of the individual case. However, judgments issued in individual cases establish precedents albeit to a greater or lesser extent and a decision in this case could not, either in theory or practice, be framed in such a way as to prevent application in later cases.", "76. The Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate. The Government have stated that flexibility is provided for in individual cases by the fact that consent is needed from the DPP to bring a prosecution and by the fact that a maximum sentence is provided, allowing lesser penalties to be imposed as appropriate. The Select Committee report indicated that between 1981 and 1992 in twenty-two cases in which “mercy killing” was an issue, there was only one conviction for murder, with a sentence of life imprisonment, while lesser offences were substituted in the others and most resulted in probation or suspended sentences (paragraph 128 of the report cited at paragraph 21 above). It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence.", "77. Nor in the circumstances is there anything disproportionate in the refusal of the DPP to give an advance undertaking that no prosecution would be brought against the applicant's husband. Strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law. In any event, the seriousness of the act for which immunity was claimed was such that the decision of the DPP to refuse the undertaking sought in the present case cannot be said to be arbitrary or unreasonable.", "78. The Court concludes that the interference in this case may be justified as “necessary in a democratic society” for the protection of the rights of others and, accordingly, that there has been no violation of Article 8 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION", "79. Article 9 of the Convention provides:", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "A. Submissions of the parties", "1. The applicant", "80. The applicant submitted that Article 9 protected the right to freedom of thought, which has hitherto included beliefs such as veganism and pacifism. In seeking the assistance of her husband to commit suicide, the applicant believed in and supported the notion of assisted suicide for herself. In refusing to give the undertaking not to prosecute her husband, the DPP had interfered with this right as had the United Kingdom in imposing a blanket ban which allowed no consideration of the applicant's individual circumstances. For the same reasons as applied under Article 8 of the Convention, that interference had not been justified under Article 9 § 2.", "2. The Government", "81. The Government disputed that any issue arose within the scope of this provision. Article 9 protected freedom of thought, conscience and religion and the manifestation of those beliefs and did not confer any general right on individuals to engage in any activities of their choosing in pursuance of whatever beliefs they may hold. Alternatively, even if there was any restriction in terms of Article 9 § 1 of the Convention, such was justifiable under the second paragraph for the same reasons as set out in relation to Articles 3 and 8 of the Convention.", "B. The Court's assessment", "82. The Court does not doubt the firmness of the applicant's views concerning assisted suicide but would observe that not all opinions or convictions constitute beliefs in the sense protected by Article 9 § 1 of the Convention. Her claims do not involve a form of manifestation of a religion or belief, through worship, teaching, practice or observance as described in the second sentence of the first paragraph. As found by the Commission, the term “practice” as employed in Article 9 § 1 does not cover each act which is motivated or influenced by a religion or belief (see Arrowsmith v. the United Kingdom, no. 7050/77, Commission's report of 12 October 1978, DR 19, p. 19, § 71). To the extent that the applicant's views reflect her commitment to the principle of personal autonomy, her claim is a restatement of the complaint raised under Article 8 of the Convention.", "83. The Court concludes that there has been no violation of Article 9 of the Convention.", "VI. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "84. Article 14 of the Convention provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. Submissions of the parties", "1. The applicant", "85. The applicant submitted that she suffered from discrimination as a result of being treated in the same way as those whose situations were significantly different. Although the blanket ban on assisted suicide applied equally to all individuals, the effect of its application to her when she was so disabled that she could not end her life without assistance was discriminatory. She was prevented from exercising a right enjoyed by others who could end their lives without assistance because they were not prevented by any disability from doing so. She was therefore treated substantively differently and less favourably than those others. As the only justification offered by the Government for the blanket ban was the need to protect the vulnerable and as the applicant was not vulnerable or in need of protection, there was no reasonable or objective justification for this difference in treatment.", "2. The Government", "86. The Government argued that Article 14 of the Convention did not come into play as the applicant's complaints did not engage any of the substantive rights she relied on. Alternatively, there was no discrimination as the applicant could not be regarded as being in a relevantly similar situation to those who were able to take their own lives without assistance. Even assuming Article 14 was in issue, section 2(1) of the Suicide Act 1961 was not discriminatory as domestic law conferred no right to commit suicide and the policy of the law was firmly against suicide. The policy of the criminal law was to give weight to personal circumstances either at the stage of considering whether or not to prosecute or in the event of conviction, when penalty was to be considered. Furthermore, there was clear reasonable and objective justification for any alleged difference in treatment, reference being made to the arguments advanced under Articles 3 and 8 of the Convention.", "B. The Court's assessment", "87. The Court has found above that the applicant's rights under Article 8 of the Convention were engaged (see paragraphs 61-67). It must therefore consider the applicant's complaints that she has been discriminated against in the enjoyment of the rights guaranteed under that provision in that domestic law permits able-bodied persons to commit suicide yet prevents an incapacitated person from receiving assistance in committing suicide.", "88. For the purposes of Article 14 a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover, the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Camp and Bourimi v. the Netherlands, no. 28369/95, § 37, ECHR 2000-X). Discrimination may also arise where States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV).", "89. Even if the principle derived from Thlimmenos was applied to the applicant's situation however, there is, in the Court's view, objective and reasonable justification for not distinguishing in law between those who are and those who are not physically capable of committing suicide. Under Article 8 of the Convention, the Court has found that there are sound reasons for not introducing into the law exceptions to cater for those who are deemed not to be vulnerable (see paragraph 74 above). Similar cogent reasons exist under Article 14 for not seeking to distinguish between those who are able and those who are unable to commit suicide unaided. The borderline between the two categories will often be a very fine one and to seek to build into the law an exemption for those judged to be incapable of committing suicide would seriously undermine the protection of life which the 1961 Act was intended to safeguard and greatly increase the risk of abuse.", "90. Consequently, there has been no violation of Article 14 of the Convention in the present case." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1953 and lives in Meltingen (Canton of Solothurn).", "7. The applicant has been suffering from a serious bipolar affective disorder for about twenty years. During this period he has twice attempted suicide and has stayed in psychiatric hospitals on several occasions. On 1 July 2004 he became a member of Dignitas, an association which offers, among other services, assisted suicide. Taking the view that his illness, for which treatment is difficult, made it impossible for him to live with dignity, the applicant asked Dignitas to assist him in ending his life. He approached several psychiatrists to obtain the necessary lethal substance, namely 15 grams of sodium pentobarbital, which is available only on prescription, but was unsuccessful.", "A. The applicant ’ s requests to the authorities", "8. On 8 June 2005 the applicant contacted various official bodies seeking permission to obtain sodium pentobarbital from a pharmacy without a prescription, through the intermediary of Dignitas.", "9. The Federal Office of Justice found that it did not have jurisdiction to grant his request and rejected it on 27 June 2005.", "10. On 20 July 2005 the Federal Department of Public Health dismissed the applicant ’ s claim on the ground that sodium pentobarbital could only be obtained on prescription from a pharmacy. It also expressed its opinion that Article 8 of the Convention did not impose on the States Parties a positive obligation to create the conditions for committing suicide without the risk of failure and without pain.", "11. On 3 August 2005 the Health Department of the Canton of Zürich also dismissed the applicant ’ s request, finding that, in the absence of the necessary medical prescription, he could not be authorised to obtain the substance in question from a pharmacy. It too noted that such a right could not be inferred from Article 8 of the Convention. That decision was upheld by the Administrative Court of the Canton of Zürich on 17 November 2005.", "12. On 20 December 2005 the Federal Department of the Interior declared inadmissible an appeal lodged by the applicant against the decision of 20 July 2005, on the ground that this was not an emergency in which a substance usually subject to medical prescription could be delivered without one. It noted that only a doctor could issue the relevant prescription.", "13. The applicant lodged appeals with the Federal Court against the decisions of the Federal Department of the Interior and the Administrative Court of the Canton of Zürich. Relying in particular on Article 8 of the Convention, he alleged that this provision guaranteed the right to choose to die and that State interference with this right was acceptable only in the conditions set out in the second paragraph of Article 8. In the applicant ’ s opinion, the obligation to submit a medical prescription in order to obtain the substance necessary for suicide, and the impossibility of procuring such a prescription – which, in his view, was attributable to the threat that hung over doctors of having their licence withdrawn by the authorities should they prescribe the substance in question to mentally ill persons – amounted to interference with his right to respect for his private life. He argued that while this interference was admittedly in accordance with the law and pursued a legitimate aim, it was not, in his case, proportionate.", "B. The judgment of the Federal Court", "14. By a judgment of 3 November 2006, the Federal Court joined the two sets of proceedings and dismissed the applicant ’ s appeals.", "15. It noted, firstly, that, pursuant to the applicable legal provisions, sodium pentobarbital could only be obtained on medical prescription and that the applicant had not obtained such a prescription. It further noted that this was not an exceptional case in which a medical product could be issued without a prescription.", "16. As to the alleged violation of Article 8 of the Convention, the Federal Court found as follows :", "[ Translation ]", "“ 6.1. ... The right to self-determination within the meaning of Article 8 § 1 [ of the Convention] includes the right of an individual to decide at what point and in what manner he or she will die, at least where he or she is capable of freely reaching a decision in that respect and of acting accordingly ...", "6.2.1. The right to choose to die, which is not as such in issue here, must however be distinguished from the right to assistance with suicide from the State or a third party. In principle, such a right cannot be inferred either from Article 10, paragraph 2, of the Federal Constitution [ enshrining individual freedom ] or from Article 8 of the Convention; an individual who wishes to die does not have a right to be assisted in committing suicide, whether by the provision of the necessary means or through active assistance where he or she is not capable of ending his or her own life ... The State has a fundamental obligation to protect life. Admittedly, such protection is not generally extended against the will of a person who is capable of forming his or her own views ... Nonetheless, it does not follow that the State has a positive obligation to ensure that a person who wishes to die has access to a dangerous substance, selected for the purpose of suicide, or to tools intended to be used for that purpose. In such circumstances, the right to life guaranteed by Article 2 of the Convention obliges the State, at the very least, to put in place a procedure to ensure that a decision to commit suicide does indeed correspond to the free will of the individual in question ...", "6.2.2. The foregoing is confirmed by the case-law of the Strasbourg institutions: Article 2 [ of the Convention] guarantees no right to die, whether with the assistance of a third party or of the State; the right to life has no corresponding negative freedom ( judgment in Pretty v. the United Kingdom, no. 2346/02, § 40, ECHR 2002 ‑ III ) ... Article 3 does not in principle oblige the State to guarantee criminal impunity for assisting a person to commit suicide or to create a legal basis for another form of assistance with that act; the State must not sanction actions intended to terminate life ( Pretty, cited above, §§ 55 et seq. ). With regard to Article 8, the Court found that – without in any way negating the principle of sanctity of life – the quality of life and, in consequence, the question of the individual ’ s autonomy play a role under this provision ( judgment in Pretty, cited above, § 65). The Court stated that it ‘ [was not prepared] to exclude ’ that the fact that the applicant was precluded from exercising her choice to avoid what she consider [ ed would] be an undignified and distressing end to her life constituted an interference with her right to respect for private life within the meaning of Article 8 § 1 of the Convention ( Pretty, cited above, § 67; see also the judgment of the Supreme Court of Canada in the case of Rodriguez v. British Columbia [Attorney General; [1993] 3 S.C.R. 513], and Judge Sopinka ’ s opinion as the basis of the majority ’ s findings ); this had already been presaged in the 1983 Reed case, where the Commission had emphasised that the activity of a person aiding and abetting suicide did not, as such, fall within the sphere of Article 8, but that, on the contrary, the protection of the private life of the person seeking to die could be at stake ( inadmissibility decision in Reed v. the United Kingdom, no. 7630/76, Commission decision of 4 July 1983, Decisions and Reports 33, p. 273, § 13).", "6.2.3. The case of Pretty ( like that of Rodriguez ) is not comparable to the instant case: the applicant ’ s freedom to commit suicide, and consequently the impunity of an individual who might provide assistance to that end, providing he or she is not acting from selfish motives ( Article 115 of the Criminal Code ), are not in issue here. The matter in dispute is whether, on the basis of Article 8, the State must take steps to ensure that the applicant is able to end his life without pain and without risk of failure, and that, in consequence, he is able to obtain sodium pentobarbital without a medical prescription, in derogation from the legislation. This question must be answered in the negative: admittedly, the Convention guarantees not rights that are theoretical or illusory but rights that are practical and effective ( judgment in Artico v. Italy, 13 May 1980, § 33, Series A no. 37 ); it does not appear, however, – given that other options exist – that the freedom to commit suicide and, accordingly, the freedom to choose one ’ s own quality of life are restricted by the mere fact that the State does not authorise the unconditional issue of the substance in question, but makes it dependent on the presentation of a medical prescription, issued on the basis of the ‘ recognised rules of pharmaceutical and medical science ’ and knowledge of the health of the individual concerned (section 24 ( 1 ) (a) taken in conjunction with section 26 of the LPTh [ Federal Medicines and Medical Devices Act ], and section 9 ( 1 ), taken in conjunction with section 10, of the Lstup [ Federal Drugs Act ]). In order to guarantee effectively the freedom to choose to end one ’ s own life, derived from Article 8 § 1 of the Convention, it is not necessary to authorise unrestricted availability of sodium pentobarbital, even if this substance is supposedly highly suitable for the act of committing suicide. The mere fact that solutions other than sodium pentobarbital entail higher risks of failure and greater pain is not sufficient to justify the provision, without prescription, of this substance for the purpose of suicide. Such a positive obligation cannot be inferred either from Article 10 § 2 of the Federal Constitution or from Article 8 of the Convention ...", "...", "6.3.2. The obligation to submit a medical prescription has a clear, accessible and foreseeable legal basis, namely, in respect of domestic law, sections 24 and 26 of the Federal Medicines and Medical Devices Act and sections 9 and 10 ( 1 ) [ sic ] of the Federal Drugs Act, and, with regard to international law, Article 9 § 1 and Schedule III of the [United Nations] Convention on Psychotropic Substances of 21 February 1971. Generally speaking, this obligation is intended to protect the health and safety of the population and, in the context of assisted suicide, to prevent the commission of criminal offences and combat the risks of abuse ( Pretty judgment, cited above, §§ 74 and 75 .. .). A substance which, when ingested, leads to death, cannot simply be dispensed by a pharmacist without any knowledge of the circumstances of the case; in the patient ’ s interests, provision of such a substance must be subject to the presentation of a medical prescription. A medical prescription presupposes a diagnosis drawn up on the basis of a doctor ’ s professional code of ethics, a medical indication ( Indikationsstellung ) and an information-seeking interview. Only a doctor can assess a patient ’ s capacity for discernment and his or her medical records, and determine whether all treatment options have been exhausted to no avail ... The obligation to obtain a prescription for sodium pentobarbital is a guarantee that doctors will not issue this substance without all the necessary conditions being fulfilled, since otherwise they would leave themselves open to criminal, civil or disciplinary sanctions ... It protects individuals from hasty and unconsidered decisions ... and guarantees the existence of a medical justification for the action. ... A potential interference with the right to self-determination protected by Article 8 of the Convention has only a relative bearing in view of the consequences attached to issuing sodium pentobarbital for the purpose of suicide. ... In contrast, the protection of life, the prohibition of murder and the latter ’ s delimitation with regard to assisted suicide, which is not a priori subject to penalties, represent a significant public interest. ... While assisted suicide by medical means is authorised, a matter that, given the importance of the ethical issue at stake, must in the first instance be assessed by the legislature ( see the above-cited Pretty judgment, § 74 in fine ), the State is entitled to put in place a procedure for review, thus guaranteeing that the decision of the individual concerned does indeed correspond to his or her free and considered will ...; to that end, the obligation to obtain a medical prescription is appropriate and necessary. In so far as the applicant alleges that this argument does not take into consideration the 1, 300 cases of suicide and the 63, 000 cases of attempted suicide per year, in which the State allegedly fails to comply with its duty of protection, it must be emphasised that those cases do not, as the instant case does, concern the question of dispensing, without prescription, a substance for the purpose of suicide and are thus not comparable to the present situation.", "...", "6.3.4. The regulations on assisted suicide are relatively liberal in Switzerland, in so far as assistance or incitement is punishable only in the event of selfish motives ( Article 115 of the Criminal Code ). In contrast, the legislature remains free, in weighing up the interests at stake – the right to self-determination of persons wishing to kill themselves on the one hand, and protection against impulsive suicides ( Affektsuizid ) on the other – to make the legality of assisted suicide and the provision of a dangerous product subject to compliance with professional rules and the state of medical science. The Guidelines on End of Life Care issued by the Swiss Academy of Medical Sciences on 25 November 2004 acknowledge that, in borderline cases, a doctor may be faced with an ‘ intractable conflict ’ (point 4.1 of the Guidelines ). Clearly, assisted suicide cannot be considered as part of a doctor ’ s activities, since it is self-evident that such an action goes against the aim of medicine; however, respect for the patient ’ s wishes is also fundamental to the relationship between the doctor and patient, so that the doctor may be led to take a decision in all conscience, a decision that ought to be respected. If the doctor opts for assisted suicide, he is guarantor of the fact that: (1) the patient ’ s illness makes it likely that death is close; ( 2) other options for support have been discussed and, where appropriate, put into place; and ( 3) the patient is capable of discernment, his or her wish appears to be carefully considered, is not the result of external pressure and is to be regarded as final, which must be verified by an independent third party who need not necessarily be a doctor; the final act which leads to death must always be carried out by the patient himself. Contrary to the applicant ’ s assertions, a doctor is entitled, in the context of the recognised professional rules, to prescribe sodium pentobarbital for the purpose of suicide, provided that the conditions for doing so are fulfilled. As the Federal Court has already observed, a change in attitude is to be perceived in modern society, in the sense that assisted suicide is increasingly considered as a voluntary medical activity which cannot be imposed on any doctor, but which is not excluded by the rules of professional conduct and supervision, provided that the duty of medical care is respected in examining patients, diagnosing them and dispensing the product ( judgment 2P.310/2004 of 18 May 2005, paragraph 4.3, with references ), and provided that doctors do not allow themselves to be guided solely by their patient ’ s wish to die and fail to examine the reasons for such a decision in accordance with the applicable scientific criteria ...", "6.3.5. The question of prescribing and dispensing sodium pentobarbital is particularly problematic in cases of mental illness :", "6.3.5.1. It must not be forgotten that a serious, incurable and chronic mental illness may, in the same way as a somatic illness, cause suffering such that, over time, the patient concludes that his or her life is no longer worth living. The most recent ethical, legal and medical opinions indicate that in such cases also the prescription of sodium pentobarbital is not necessarily precluded or to be excluded on the ground that it would represent a breach of the doctor ’ s duty of care ... However, the greatest restraint must be exercised : it is necessary to distinguish between a desire to die as the expression of a psychological disorder which can and must be treated, and a wish to die that is based on the considered and sustained decision of a person capable of discernment ( ‘ pre- suicide assessment ’ ), which must be respected as applicable. Where the wish to die is based on an autonomous and all-embracing decision, it is not prohibited to prescribe sodium pentobarbital to a person suffering from a psychiatric illness and, consequently, to assist him or her in committing suicide ...", "6.3.5.2. The question of whether the conditions have been met in a given case cannot be examined without recourse to specialised medical – and particularly psychiatric – knowledge, which is difficult in practice; a thorough psychiatric examination thus becomes necessary .. ., which can only be guaranteed if the obligation to submit a prescription in order to obtain sodium pentobarbital is maintained, and if responsibility does not lie solely with private organisations for assisted suicide. The activities of such organisations have been criticised on several occasions; a study carried out in Basle, analysing 43 cases of assisted suicide by the organisation Exit between 1992 and 1997, rightly criticised the failure to take into account psychiatric or social factors in the decision to end one ’ s life ... Accordingly, one cannot argue that issuing sodium pentobarbital and delegating responsibility for its use to an organisation for assisted suicide is equally compatible with the purpose of the legislation as maintaining the obligation to obtain a medical prescription.", "6.3.6. To conclude, it is appropriate to note that – contrary to the applicant ’ s allegations – neither Article 8 of the Convention nor Article 10 § 2 of the Federal Constitution ... impose an obligation on the State to issue, without medical prescription, sodium pentobarbital to organisations for assisted suicide or to persons who wish to end their lives. The requirement of a medical prescription for sodium pentobarbital has a legal basis, is intended to protect public safety and health and to maintain order in the public interest, and is also a proportionate and necessary measure in a democratic society. In weighing up the interests at stake, namely the protection of life – which requires (as a minimum) verification, on a case-by-case basis, of whether individuals ’ decisions to end their lives genuinely correspond to their free and considered will where they opt for assisted suicide using a product subject to legislation on drugs or medicinal products –, and the individual ’ s right to self-determination, the State remains free – from the standpoint of constitutional law or of the Convention – to lay down certain conditions and, in this context, to maintain, inter alia, the obligation to obtain a prescription for sodium pentobarbital. The (summary) medical documents submitted [ by the applicant ] alter nothing in his case; the delivery of a substance for the purpose of assisted suicide necessitates, in his case too, a thorough and considered examination and a medical indication, and, with regard to the genuineness of his wish to die and capacity for discernment in this connection, monitoring over a certain period by a medical specialist who would subsequently be able, as appropriate, to issue a medical prescription; in contrast, in the context of the present case [the applicant] cannot receive such a prescription by requesting that the obligation to present a prescription be lifted; for this reason, the explanations with regard to his capacity for discernment do not appear relevant ( Pretty judgment, cited above, §§ 74-77) ...”", "C. The applicant ’ s subsequent requests to doctors", "17. On 2 May 2007 the applicant sent a letter to 170 psychiatrists, almost all of whom, according to the information available to the Court, practise in the Basle region. He asked each of them whether they would agree to see him for the purpose of carrying out a psychiatric examination and with a view to issuing a prescription for sodium pentobarbital. The letter was worded as follows :", "[ Translation ]", "“Dear Sir / Madam,", "Please find attached a copy of a Federal Court judgment in my case. I had asked the Federal Court to be granted direct access to sodium pentobarbital so that, with the help of Dignitas, I could commit assisted suicide without risk of failure and without pain. Admittedly, the Federal Court has accepted that the right to choose the time and manner of one ’ s death is a human right. At the same time, it has held that direct access to sodium pentobarbital is impossible, since a medical prescription is necessary in order to obtain the said product.", "Given that I suffer from mental illness, the Federal Court also stated that a preliminary in-depth psychiatric examination was also necessary (p. 75, paragraph 6.3.5.2. ). This should determine whether my wish to die is the expression of a psychological disorder that is open to treatment or whether it results from an autonomous, considered and sustained decision by a person who is capable of discernment (see also p. 75, paragraph 6.3.5.1. ).", "I hereby ask whether you would be willing to accept me as a patient, for the sole purpose of conducting such an assessment.", "In addition, I draw your attention to the fact that I am unlikely to commit suicide at present; I have not taken neuroleptics since November 2006.”", "18. None of the doctors responded positively to his request. Some refused on the ground of lack of time and/or the necessary competence, or for ethical reasons. Others argued that the applicant ’ s illness could be treated." ]

[ "II. RELEVANT DOMESTIC, COMPARATIVE AND INTERNATIONAL LAW", "19. The relevant provisions of the Swiss Criminal Code are worded as follows :", "Article 114 – Homicide at the victim ’ s request", "“ Any person who for commendable motives, and in particular out of compassion, causes the death of a person at that person ’ s own genuine and insistent request shall be liable to a custodial sentence not exceeding three years or to a monetary penalty. ”", "Article 115 – Inciting and assisting suicide", "“ Any person who for selfish motives incites or assists another to commit or attempt to commit suicide shall, if that other person thereafter commits or attempts to commit suicide, be liable to a custodial sentence not exceeding five years or to a monetary penalty. ”", "20. The Federal Drugs Act ( Lstup ) ( “the Drugs Act” ) of 3 October 1951 regulates the use and supervision of drugs. The Federal Medicines and Medical Devices Act ( LPTh ) ( “the Therapeutic Products Act” ) of 15 December 2000 applies to drugs covered by the Drugs Act where they are used as therapeutic products ( section 2 (1)(b) of the Therapeutic Products Act ). The Drugs Act remains applicable, however, if the Therapeutic Products Act does not regulate a specific matter or if its regulation is less extensive (section 2 (1 bis ) of the Drugs Act ).", "21. Under section 1 of the Drugs Act and the Order on Drugs and Psychotropic Substances of 12 December 1996 issued by the Swiss Institute for Therapeutic Products, sodium pentobarbital is considered to be a drug within the meaning of the Drugs Act. Moreover, it appears from the Federal Court ’ s judgment of 3 November 2006 that sodium pentobarbital is categorised as a “ category B ” medicinal product within the meaning of the Therapeutic Products Act.", "22. In addition, sodium pentobarbital is listed in Schedule III of the United Nations Convention on Psychotropic Substances of 21 February 1971. Under that Convention, it may be issued for individual use only on the basis of a medical prescription.", "23. Section 9 of the Drugs Act lists the members of the medical profession who may obtain drugs without authorisation. Section 9 ( 1 ) is worded as follows:", "“Doctors, dentists, veterinary surgeons and those managing a public or hospital pharmacy who practise as self-employed professionals by virtue of a decision of the cantonal authorities adopted pursuant to the Federal Law of 19 December 1877 on the practice of the professions of doctor, pharmacist and veterinary surgeon in the Swiss Confederation, may obtain, hold, use and issue drugs without authorisation, within the limits justified by the practice, in conformity with the requirements, of their profession. This shall be without prejudice to the cantonal provisions regulating direct dispensing by doctors and veterinary surgeons ... ”", "24. Pursuant to section 10 ( 1 ) of the same Act, only doctors and veterinary surgeons are authorised to prescribe drugs :", "“The doctors and veterinary surgeons who fall under the scope of section 9 shall be authorised to prescribe drugs.", "... ”", "25. Doctors and veterinary surgeons may write such prescriptions only in so far as this is medically acceptable and only for patients whom they have examined personally ( section 11 ( 1 ) of the same Act, and Article 43 § 1 of the Order on Drugs of 29 May 1996).", "26. Sections 24 and 26 of the Therapeutic Products Act are worded as follows :", "Section 24 – Issuing of medicinal products subject to a prescription", "“The following persons shall be authorised to issue medicinal products that are subject to a prescription :", "( a ) pharmacists, on a medical prescription, and, where justified in exceptional cases, without a medical prescription;", "( b ) any other person exercising a medical profession, in accordance with the provisions on dispensing physicians;", "( c ) any duly trained professional, under the supervision of a person who comes under the scope of paragraphs ( a ) and ( b ).", "...”", "Section 26 – Principle of prescription and issue", "“The recognised rules of pharmaceutical and medical science shall be respected in the prescription and issuing of medicines.", "A medicinal product may be prescribed only where the state of health of the consumer or patient is known.”", "27. Chapter 8 of the same Act contains criminal-law provisions targeting persons who intentionally endanger the health of another person in relation to an activity covered by the Act. Section 86 of the Act provides:", "Section 86 – Offences", "“Anyone who intentionally endangers human life shall be liable to imprisonment or a fine of up to 200, 000 francs, unless he or she has committed a more serious offence within the meaning of the Criminal Code or of the Drugs Act of 3 October 1951, if he or she :", "( a ) neglects the duty of care when carrying out an operation related to therapeutic products;", "( b ) manufactures, places on the market, prescribes, imports or exports medicinal products or trades in them abroad without authorisation or in infringement of other provisions of this Act;", "( c ) issues therapeutic products without authorisation to do so;", "...", "( f ) neglects his or her obligation to ensure the upkeep of medical devices;", "...", "Where the perpetrator is acting in a professional capacity, the term of imprisonment shall be for up to five years and the fine shall be up to 500 ,000 francs.", "Where the perpetrator acts through negligence, the term of imprisonment shall be up to six months or the fine up to 100,000 francs.”", "28. In its judgments 6B_48/2009 and 6B_14/2009 of 11 June 2009, the Federal Court upheld the conviction and sentencing to four and a half years ’ imprisonment of a psychiatrist on the ground that the latter, who had assisted his patient to commit suicide, had incorrectly assessed the patient ’ s capacity for discernment.", "29. The research conducted by the Court indicates that certain member States of the Council of Europe have specific regulations covering access to substances liable to facilitate suicide.", "30. In Belgium, for example, the Law of 28 May 2002 defines euthanasia as an act carried out by a third party which intentionally ends an individual ’ s life at the latter ’ s request ( section 2 of the Law ). A pharmacist who issues a “lethal substance ” does not commit an offence where this is done on the basis of a prescription in which the doctor explicitly states that he or she is acting in accordance with the law. The implementing regulations establish the criteria of prudence and the conditions which must be met for the prescription and issue of such medicines; the necessary measures must also be taken to ensure the availability of the lethal substances.", "31. In Luxembourg, the Law of 16 March 2009 decriminalised euthanasia and assisted suicide. Under that Law, access to a medicine enabling suicide is legally possible for a doctor only if he or she plays an integral part in the process of euthanasia or assisted suicide.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "32. The applicant complained about the conditions required to obtain sodium pentobarbital, namely a medical prescription based on a thorough psychiatric assessment. He alleged that, since those conditions could not be met in his case, the right to which he considered himself entitled, namely that of choosing the time and manner of his death, was not respected. He submitted that, in an exceptional situation such as his, access to the necessary medical products for suicide ought to be guaranteed by the State. He relied on Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The parties ’ submissions", "1. The applicant", "33. The applicant alleged that he was the victim of interference with the exercise of his right to respect for his private life within the meaning of Article 8 of the Convention. He did not share the Government ’ s view that other options for ending his life were available to him. He considered that the ingestion of sodium pentobarbital was the only dignified, certain, rapid and pain-free method of committing suicide. Moreover, the fact that none of the 170 psychiatrists practising in the Basle region contacted by him had been willing to help him was, in his opinion, proof that it was impossible to satisfy the conditions laid down by the Federal Court. He submitted that this was unquestionably contrary to the principle, established by the Court, that the Convention protected rights that were practical and effective ( he referred to Artico v. Italy, 13 May 1980, § 33, Series A no. 37).", "34. The applicant further alleged that the cases of suicide referred to in which Dignitas had provided assistance dated back to 2001 to 2004 and that, in consequence, they were not to be taken into account in his case. In addition, an investigation had been opened in respect of doctors in Zürich who had prescribed sodium pentobarbital to persons suffering from psychiatric problems wishing to commit suicide, on the ground that there had been no in-depth psychiatric assessment. He also submitted that he had been informed by Dignitas that the association was no longer in contact with psychiatrists who were willing to carry out the necessary expert assessment. Lastly, he argued that, by virtue of the right to self-determination, he was not required to undertake further therapy, contrary to the Government ’ s affirmations, in so far as he had clearly and freely taken his decision to end his life.", "35. As to the Government ’ s argument concerning the inherent risks of excessive liberalisation in the area of suicide, he considered this unconvincing, alleging that the Swiss authorities were in any event all but inactive in the area of suicide prevention, despite the fact that there were almost 67, 000 attempted suicides per year ( in this connection, the applicant referred to the Federal Council ’ s reply of 9 January 2002 to questions posed by Andreas Gross, national councillor and member of the Parliamentary Assembly of the Council of Europe).", "36. The applicant further submitted that the Government had ignored the fact that he had been suffering from serious psychiatric problems for many years. His intention to end his life was unambiguous, as was clearly shown by his previous suicide attempts and his efforts to obtain legal approval for his decision. It was not therefore necessary for him to prove that he was serious in his intent, through either an in-depth psychiatric assessment or psychiatric assistance over a prolonged period.", "37. In view of the above, the applicant alleged that the impugned interference with his right to respect for his private life as guaranteed by Article 8 § 1 of the Convention was not justified, either by the protection of his own life or on the grounds of public health or safety. Finally, he complained that the impossibility of finding a psychiatrist willing to provide an expert report had rendered illusory his right to respect for his private life.", "2. The Government", "38. The Government denied any infringement in the instant case of the applicant ’ s right to respect for his private life as guaranteed by Article 8 § 1 of the Convention. In this regard, they considered that this case differed from the Pretty v. the United Kingdom case (no. 2346/02, ECHR 2002 ‑ III), in which the applicant, incapable of acting autonomously, was prevented from putting into practice her choice to die in a manner that she considered dignified. According to the Government, the illness suffered by the applicant in the instant case did not prevent him from acting autonomously. There were numerous other solutions available to able-bodied persons wishing to commit suicide. Furthermore, like the Federal Court, the Government considered that the right to self-determination which was enshrined in Article 8 § 1 could not include the right of an individual to assisted suicide, whether by making available the necessary means or through active assistance where the person was not able to act autonomously.", "39. The Government added that, in any event, should the Court nonetheless consider that the Federal Court ’ s decision infringed the rights guaranteed by Article 8 § 1 of the Convention, such an infringement would be justified in the light of the criteria set out in paragraph 2 of that Article.", "40. Moreover, in the Government ’ s opinion, the impugned regulations had a sufficient basis in law, a fact that the applicant had not contested ( see paragraphs 19 - 28 above ).", "41. The Government further alleged that the restriction on access to sodium pentobarbital served to protect public health and safety and to prevent crime.", "42. As to the necessity of such a restriction in a democratic society, the Government indicated that the Swiss regulations and practice in the area of assisted suicide were more permissive than in the majority of the other Council of Europe member States. Assisted suicide was not liable to punishment in general, but only in certain circumstances ( they referred to Article 115 of the Criminal Code; see paragraph 19 above ).", "43. The Government specified that assisted suicide for individuals suffering from a psychiatric illness was not only legally possible in Switzerland but also occurred in practice. To their knowledge, the criminal convictions of doctors for prescribing sodium pentobarbital all concerned cases where the diagnosis had not been carefully established or was manifestly erroneous. Moreover, according to a study conducted between 2001 and 2004 on suicides assisted by the associations Exit and Dignitas, carried out by the Institute of Forensic Medicine at the University of Zürich, twelve persons suffering from a psychiatric illness had been assisted by those two associations during that period. None of the doctors involved in those cases was prosecuted, and nor were any other measures taken against them. Further, it was apparent from Exit ’ s annual reports that this association had twice, in 2007 and 2008, accompanied the suicide of a person suffering from a psychiatric illness ( the association ’ s Management Committee Reports for 2007 and 2008, Annexes 3 and 4). In the Government ’ s view, this showed that doctors were willing to carry out the necessary assessments and prescribe the required quantity of sodium pentobarbital. To the Government ’ s knowledge, these cases had not had legal consequences. Accordingly, the Government submitted that, if he was prepared to accept the conditions laid down by the Federal Court and confirmed by the Swiss Society for Forensic Psychiatry, the applicant could find a doctor who, after accompanying him over a certain period, would be able to attest, if appropriate, whether he fulfilled the conditions for prescription of the substance in question.", "44. The Government also considered that the steps taken by the applicant to contact a doctor raised several questions. Firstly, they noted that Dignitas, which had assisted the applicant in this action, had already assisted with the suicides of several other persons suffering from mental illness. They concluded that the association must be aware of doctors who could assume responsibility for the applicant ’ s request. Secondly, they noted that, since 2006, in line with the Federal Court ’ s judgment, the Canton of Zürich had changed its practice so that doctors who drew up a prescription for sodium pentobarbital no longer faced criminal prosecution. According to the Government, once the impugned obstacle in the domestic law had been lifted, rather than seeking to contact a doctor in the Canton of Zürich, the applicant had sent a written request, certified by a notary, to 170 psychiatrists, all of whom practised in the Basle region, with the exception of one doctor who practised in Berne. Thirdly, the Government, not knowing the criteria used by the applicant in selecting the 170 addressees of his request, considered that the wording of the letter was not such as to encourage a doctor to respond positively, in that the applicant, by dismissing in advance any therapeutic treatment and requesting solely an expert assessment, ruled out any serious examination of an alternative to suicide, a step that was part of the assessment that must precede the prescription of sodium pentobarbital.", "45. In addition, according to the Government, while the regulations on assisted suicide confronted the State authorities with difficult ethical questions, they created an even more delicate situation in the case of persons wishing to commit suicide who were not suffering from a terminal illness. In their view, such persons were not choosing to prefer an easy death to a death preceded or accompanied by severe suffering, as in the Pretty case (cited above) in particular, but rather choosing to prefer death to life.", "46. The Government also pointed out that, under Article 2 of the Convention, the State is enjoined not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction from acts by others or, where appropriate, from themselves ( they referred to Kılavuz v. Turkey, no. 8327/03, § 78, 21 October 2008). They added that, where the authorities were aware of the risk of suicide by an individual, it was incumbent on them to do everything that could reasonably be expected of them to prevent the suicide ( ibid., § 88).", "47. In this connection, the Government submitted that, in psychiatry, the wish to commit suicide was seen as a symptom of mental illness, to which the appropriate response was suitable therapy. In their view, it was therefore necessary to draw a distinction between the wish to commit suicide as an expression of illness and the wish to commit suicide as an autonomous, considered and sustained decision. Given the complexity of mental illnesses and their uneven development, such a distinction could not be made without a thorough assessment over a time period that would make it possible to verify the consistency of the wish to commit suicide. Such an examination would necessitate in-depth psychiatric knowledge and could only be conducted by a specialist.", "48. The Government further submitted that the obligation to submit a medical certificate implied certain actions by the applicant. In their view, however, these did not seem insurmountable if his choice to commit suicide resulted from an autonomous and sustained decision. Such an obligation amounted to an appropriate and necessary means for protecting the life of vulnerable persons whose decision to commit suicide could be based on a temporary crisis that altered their capacity for discernment. It was well known that many suicides were not a response to a genuine wish to die, but were instead more of a cry for help, intended to draw the attention of those around them to a problem. Thus, to facilitate access to assisted suicide would almost amount to pushing such individuals to use an infallible method of ending their lives.", "49. The Government also argued that the solution adopted in Switzerland corresponded to the regulations provided for in the United Nations Convention on Psychotropic Substances, and that if Switzerland were required to provide sodium pentobarbital to the applicant without a medical prescription or on the basis of a prescription that did not satisfy the medical requirements, it would be in clear violation of those regulations. They concluded that the impugned measure, necessary for the protection of life, health and safety, fulfilled the conditions of Article 8 § 2 of the Convention and did not entail a violation of that provision.", "B. The Court ’ s assessment", "50. As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person (see X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91). It can sometimes embrace aspects of an individual ’ s physical and social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I). Elements such as, for example, name, gender identification, and sexual orientation and sexual life fall within the personal sphere protected by Article 8 of the Convention ( see, for example, B. v. France, 25 March 1992, § 63, Series A no. 232-C; Burghartz v. Switzerland, 22 February 1994, § 24, Series A no. 280-B; Dudgeon v. the United Kingdom, 22 October 1981, § 41, Series A no. 45; and Laskey, Jaggard and Brown v. the United Kingdom, 19 February 1997, § 36, Reports of Judgments and Decisions 1997 ‑ I ). Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Burghartz, cited above, opinion of the Commission, p. 37, § 47, and Friedl v. Austria, 31 January 1995, Series A no. 305-B, opinion of the Commission, § 45). In the Pretty case ( cited above, § 67), the Court held that the applicant ’ s choice to avoid what she considered an undignified and distressing end to her life fell within the scope of Article 8 of the Convention.", "51. In the light of this case-law, the Court considers that an individual ’ s right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention.", "52. In the Court ’ s opinion, however, the instant case is to be distinguished from the above-cited Pretty case. Like the Federal Court, it considers that it is appropriate to state at the outset that the instant case does not concern the freedom to die and possible immunity for a person providing assistance with a suicide. The subject of dispute in this case is whether, under Article 8 of the Convention, the State must ensure that the applicant can obtain a lethal substance, sodium pentobarbital, without a medical prescription, by way of derogation from the legislation, in order to commit suicide painlessly and without risk of failure. In other words, unlike the Pretty case, the Court observes that the applicant alleges not only that his life is difficult and painful, but also that, if he does not obtain the substance in question, the act of suicide itself would be stripped of dignity. In addition, and again in contrast to the Pretty case, the applicant cannot in fact be considered infirm, in that he is not at the terminal stage of an incurable degenerative disease which would prevent him from taking his own life ( see, conversely, Pretty, cited above, § 9).", "53. The Court considers that it is appropriate to examine the applicant ’ s request to obtain access to sodium pentobarbital without a medical prescription from the perspective of a positive obligation on the State to take the necessary measures to permit a dignified suicide. This presupposes a weighing of the different interests at stake, an exercise in which the State is recognised as enjoying a certain margin of appreciation ( see Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290), which varies in accordance with the nature of the issues and the importance of the interests at stake. For its part, the Court has jurisdiction to review in fine whether the domestic decision complies with the requirements of the Convention ( see Pretty, cited above, § 70).", "54. The Court also reiterates that the Convention must be read as a whole ( see Verein gegen Tierfabriken Schweiz ( VgT ) v. Switzerland (no. 2) [GC], no. 32772/02, § 83, ECHR 2009 ). In consequence, it is appropriate to refer, in the context of examining a possible violation of Article 8, to Article 2 of the Convention, which creates for the authorities a duty to protect vulnerable persons, even against actions by which they endanger their own lives ( see, on this point, Keenan v. the United Kingdom, no. 27229/95, § 91, ECHR 2001 ‑ III). For the Court, this latter Article obliges the national authorities to prevent an individual from taking his or her own life if the decision has not been taken freely and with full understanding of what is involved.", "55. The Court also reiterates that the Convention and the Protocols thereto must be interpreted in the light of present-day conditions ( see Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26; Airey v. Ireland, 9 October 1979, § 26, Series A no. 32; and Vo v. France [GC], no. 53924/00, § 82, ECHR 2004 ‑ VIII). However, the research conducted by the Court enables it to conclude that the member States of the Council of Europe are far from having reached a consensus with regard to an individual ’ s right to decide how and when his or her life should end. In Switzerland, pursuant to Article 115 of the Criminal Code, inciting and assisting suicide are punishable only where the perpetrator of such acts is driven to commit them by “selfish motives”. By way of comparison, the Benelux countries in particular have decriminalised the act of assisting suicide, but only in very specific circumstances. Lastly, certain other countries accept only acts of “passive” assistance. It should be noted that the vast majority of member States seem to attach more weight to the protection of the individual ’ s life than to his or her right to terminate it. It follows that the States enjoy a considerable margin of appreciation in this area.", "56. With regard to the balancing of the competing interests in this case, the Court is sympathetic to the applicant ’ s wish to commit suicide in a safe and dignified manner and without unnecessary pain and suffering, particularly given the high number of suicide attempts that are unsuccessful and which frequently have serious consequences for the individuals concerned and for their families. However, it is of the opinion that the regulations put in place by the Swiss authorities, namely the requirement to obtain a medical prescription, pursue, inter alia, the legitimate aims of protecting everybody from hasty decisions and preventing abuse, and, in particular, ensuring that a patient lacking discernment does not obtain a lethal dose of sodium pentobarbital ( see, mutatis mutandis, with regard to restrictions on abortion, Tysiąc v. Poland, no. 5410/03, § 116, ECHR 2007 ‑ I ).", "57. Such regulations are all the more necessary in respect of a country such as Switzerland, where the legislation and practice allow for relatively easy access to assisted suicide. Where a country adopts a liberal approach in this manner, appropriate implementing measures for such an approach and preventive measures are necessary. The introduction of such measures is also intended to prevent organisations which provide assistance with suicide from acting unlawfully and in secret, with significant risks of abuse.", "58. In particular, the Court considers that the risks of abuse inherent in a system that facilitates access to assisted suicide should not be underestimated. Like the Government, it is of the opinion that the restriction on access to sodium pentobarbital is designed to protect public health and safety and to prevent crime. In this respect, it shares the view of the Federal Court that the right to life guaranteed by Article 2 of the Convention obliges States to establish a procedure capable of ensuring that a decision to end one ’ s life does indeed correspond to the free will of the individual concerned. It considers that the requirement for a medical prescription, issued on the basis of a full psychiatric assessment, is a means enabling this obligation to be met. Moreover, this solution corresponds to the spirit of the United Nations Convention on Psychotropic Substances and the conventions adopted by certain member States of the Council of Europe.", "59. In this connection, the Court observes that the parties ’ views diverge considerably on the issue of effective access to a medical assessment that would be favourable to the applicant and enable him to obtain sodium pentobarbital. The Court can envisage that psychiatrists would display some reluctance when confronted with a request for a prescription of a lethal substance. It also considers, in view of the delicate question of the applicant ’ s capacity for discernment, that the threat of criminal proceedings hanging over doctors willing to provide an in-depth report in order to facilitate suicide is real ( see, mutatis mutandis, Tysiąc, cited above, § 116; see also, for example, the Federal Court ’ s judgments 6B_48/2009 and 6B_14/2009 of 11 June 2009, at paragraph 28 above ).", "60. At the same time, the Court accepts the Government ’ s argument that the steps taken by the applicant to contact a doctor raise a number of questions ( see paragraph 44 above ). It notes that the Government ’ s arguments have not been entirely refuted by the applicant. It also notes that he sent the 170 letters in question ( see paragraph 17 above ) after the Federal Court had ruled on his appeal. Accordingly, these steps cannot a priori be taken into account in the present case. In any event, as the Government emphasised, the letters do not seem likely to encourage the doctors to reply favourably, given that the applicant stated that he was opposed to any form of therapy, thus excluding a more comprehensive attempt to find possible alternatives to suicide. In the light of the information submitted to it, the Court is not convinced that it was impossible for the applicant to find a specialist who would have been prepared to assist him. Consequently, in the Court ’ s opinion, the applicant ’ s right to choose the time and manner of his death was not merely theoretical or illusory (criterion laid down in Artico, cited above, § 33 ).", "61. Having regard to the foregoing and to the margin of appreciation enjoyed by the national authorities in such a case, the Court considers that, even assuming that the States have a positive obligation to adopt measures to facilitate the act of suicide with dignity, the Swiss authorities have not failed to comply with this obligation in the instant case.", "It follows that there has been no violation of Article 8 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant was born in 1943 and lives in Braunschweig.", "8. The applicant and his late wife B.K., born in 1950, had lived together since 1978 and married in 1980. From 2002 onwards, B.K. had been suffering from total sensorimotor quadriplegia after falling in front of her doorstep. She was almost completely paralysed and needed artificial ventilation and constant care and assistance from nursing staff. She further suffered from spasms. According to the medical assessment, she had a life expectancy of at least fifteen more years. She wished to end what was, in her view, an undignified life by committing suicide with the applicant’s help. The couple contacted the Swiss assisted-suicide organisation, Dignitas, for assistance.", "9. In November 2004 B.K. requested the Federal Institute for Drugs and Medical Devices ( Bundesinstitut für Arzneimittel und Medizinprodukte – “the Federal Institute”) to grant her authorisation to obtain 15 grams of pentobarbital of sodium, a lethal dose of medication that would enable her to commit suicide at her home in Braunschweig.", "10. On 16 December 2004 the Federal Institute refused to grant her that authorisation, relying on section 5(1) (6) of the German Narcotics Act ( Betäubungsmittelgesetz – see “Relevant domestic law” below). It found that her wish to commit suicide was diametrically opposed to the purpose of the Narcotics Act, which was aimed at securing the necessary medical care for the individuals concerned. Authorisation could therefore only be granted for life-supporting or life-sustaining purposes and not for the purpose of helping a person to end his or her life.", "11. On 14 January 2005 the applicant and his wife lodged an administrative appeal with the Federal Institute.", "12. In February 2005 the applicant and his wife, who had to be transported lying on her back on a stretcher, travelled for approximately ten hours over a distance of more than 700 kilometres from Braunschweig to Zurich in Switzerland. On 12 February 2005 B.K. committed suicide there, assisted by Dignitas.", "13. On 3 March 2005 the Federal Institute confirmed its earlier decision. In addition, it expressed doubts as to whether a State-approved right of an individual to commit suicide could be derived from Article 8. In any event, Article 8 could not be interpreted as imposing an obligation on the State to facilitate the act of suicide with narcotic drugs by granting authorisation to acquire a lethal dose of medication. A right to commit suicide would be inconsistent with the higher-ranking principle enshrined in Article 2 § 2 of the German Basic Law (see “Relevant domestic law” below), which laid down the “comprehensive” obligation of the State to protect life, inter alia by refusing to grant authorisation to obtain a lethal dose of a drug for the purpose of committing suicide.", "14. Finally, the Federal Institute “informed” the applicant that he had no standing to lodge an administrative appeal as he lacked the need for legal protection ( Rechtsschutzbedürfnis ). In particular, the applicant could not improve his own position through an appeal, as his legal position had not been the subject of the administrative proceedings.", "15. On 4 April 2005 the applicant lodged an action for a declaration that the decision of the Federal Institute had been unlawful ( Fortsetzungsfeststellungsklage ) and that it thus had a duty to grant his wife the requested authorisation.", "16. On 21 February 2006 the Cologne Administrative Court ( Verwaltungsgericht ) declared the applicant’s action inadmissible. It found that he lacked standing to lodge the action as he could not claim to be the victim of a violation of his own rights. The Federal Institute’s refusal to grant his wife authorisation to obtain a lethal dose of medication did not interfere with his right to protection of his marriage and family life as guaranteed by Article 6 § 1 of the Basic Law ( Grundgesetz – see “Relevant domestic law” below). Any other interpretation would lead to the assumption that each infringement of the rights of one spouse would automatically also be an infringement of the rights of the other spouse. That assumption would water down the separate legal personality of each spouse, which was clearly not the purpose of Article 6 § 1 of the Basic Law. Furthermore, the contested decisions did not interfere with his own right to respect for family life under Article 8 of the Convention, as they did not affect the way in which the applicant and his wife lived together.", "17. Moreover, the applicant could not rely on his wife’s rights, as the right to be granted authorisation to obtain the requested dose of drugs was of an eminently personal and non-transferable nature. Even assuming that there had been a violation of his late wife’s human dignity by the Federal Institute’s refusal, according to the Federal Constitutional Court’s case-law (see “Relevant domestic law and practice” below) the refusal could not produce effects beyond her life as it did not contain elements of disparagement capable of impairing the applicant’s wife’s image in the eyes of posterity.", "18. Finally, the court held that in any event the refusal of the Federal Institute to grant the applicant’s wife the requested authorisation had been lawful and in compliance with Article 8 of the Convention. In particular, any interference with her right to respect for private life was necessary in a democratic society for the protection of health and life and thus also for the protection of the rights of others. Referring to the Court’s judgment in the case of Pretty (see Pretty v. the United Kingdom, no. 2346/02, § 74, ECHR 2002 ‑ III), the court held that the domestic authorities had a wide margin of appreciation to assess the danger and risks of abuse. Therefore, the fact that the provisions of the Narcotics Act permitted exceptions only for what was medically needed could not be considered disproportionate.", "19. On 22 June 2007 the North-Rhine Westphalia Administrative Court of Appeal ( Oberverwaltungsgericht ) dismissed the applicant’s request for leave to appeal. It found, in particular, that the right to protection of marriage and family life under Article 6 § 1 of the Basic Law and Article 8 § 1 of the Convention did not confer a right to have the spouses’ marriage terminated by the suicide of one of them. Moreover, it considered that the decisions of the Federal Institute had not interfered with the applicant’s right to respect for private life within the meaning of Article 8 § 1 of the Convention. Even if the right to die had existed, its very personal character would not allow third persons to infer from Article 6 § 1 of the Basic Law or Article 8 § 1 of the Convention a right to facilitate another person’s suicide. Finally, the applicant could not rely on Article 13 as he had no arguable claim to be the victim of a violation of a right guaranteed under the Convention.", "20. On 4 November 2008 the Federal Constitutional Court ( Bundesverfassungsgericht, no. 1 BvR 1832/07) declared a constitutional complaint lodged by the applicant inadmissible as he could not rely on a posthumous right of his wife to human dignity. It held that the posthumous protection of human dignity extended only to violations of the general right to respect, which was intrinsic to all human beings, and of the moral, personal and social value which a person had acquired throughout his or her own life. However, such violations were not at stake in respect of the applicant’s wife. Furthermore, the applicant was not entitled to lodge a constitutional complaint as legal successor to his deceased wife. In particular, it was not possible to lodge a constitutional complaint to assert another person’s human dignity or other non-transferable rights. A legal successor could only introduce a constitutional complaint in cases, which primarily involved pecuniary claims and where the complaint was aimed at pursuing the successor’s own interests.", "III. COUNCIL OF EUROPE DOCUMENTS", "25. Recommendation no. 1418 (1999) of the Council of Europe, insofar as relevant, reads as follows:", "“9. The assembly therefore recommends that the Committee of Ministers encourage the member states of the Council of Europe to respect and protect the dignity of terminally ill and dying persons in all respects:", "a. by recognising and protecting a terminally ill or dying person’s rights to comprehensive palliative care, while taking the necessary measures:", "(...)", "b. by protecting the terminally ill or dying person’s right to self-determination, while taking the necessary measures:", "(...)", "iii. to ensure that no terminally ill or dying person is treated against his or her will while ensuring that he or she is neither influenced nor pressured by another person. Furthermore, safeguards are to be envisaged to ensure that their wishes are not formed under economic pressure;", "iv. to ensure that a currently incapacitated terminally ill or dying person’s advance directive or living will refusing special medical treatments is observed...", "v. to ensure that – notwithstanding the physician’s ultimate responsibility – the expressed wishes of a terminally ill or dying person with regards to particular forms of treatment are taken into account, provided they do not violate human dignity;", "vi. to ensure that in situations where an advance directive of living will does not exist, the patient’s right to life is not infringed upon. A catalogue of treatments which under no conditions may be withheld or withdrawn is to be defined.", "c. by upholding the prohibition against intentionally taking the life of terminally ill or dying person’s while:", "(i) recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member states, in accordance with Article 2 of the European Convention on Human Rights which states that “no one shall be deprived of his life intentionally”;", "(ii) recognising that a terminally ill or dying person’s wish to die never constitutes any legal claim to die at the hand of another person;", "(iii) recognising that a terminally ill or dying person’s wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Basic Law", "21. Article 6 § 1 of the Basic Law provides that marriage and family enjoy the special protection of the State.", "Under Article 2 § 2 of the Basic Law every person has the right to life and physical integrity.", "The Federal Constitutional Court has accepted the posthumous protection of human dignity in cases where the image of the deceased person had been impaired in the eyes of posterity by ostracism, defamation, mockery or other forms of disparagement (see decision of 5 April 2001, no. 1 BvR 932/94).", "B. The Narcotics Act", "22. The Narcotics Act governs the control of narcotic drugs. Three annexes to the Act enumerate the substances, which are considered as drugs, including pentobarbital of sodium in Annex III.", "According to section 4 (1) no. 3 (a) of the Narcotics Act it is permissible to obtain the substances listed in Annex III if they are prescribed by a medical practitioner. In all other cases, section 3(1)(1) of the Act provides that the cultivation, manufacture, import, export, acquisition, trade and sale of drugs are subject to authorisation from the Federal Institute for Drugs and Medical Devices.", "In accordance with section 5(1)(6) of the Act, no such authorisation can be granted if the nature and purpose of the proposed use of the drug contravenes the purposes of the Narcotics Act, namely, to secure the necessary medical care of the population, to eliminate drug abuse and to prevent drug addiction.", "Doctors may only prescribe pentobarbital of sodium if the use thereof on or in the human body is justified (section 13 (1)(1) of the Narcotics Act).", "C. Provisions governing doctors’ duties at the end of a patient’s life", "1. Criminal responsibility", "23. Section 216 of the Criminal Code reads as follows:", "Killing at the request of the victim; mercy killing", "“(1) If a person is induced to kill by the express and earnest request of the victim the penalty shall be imprisonment from six months to five years.", "(2) Attempts shall be punishable”", "Committing suicide autonomously is exempt from punishment under German criminal law. It follows that the act of assisting an autonomous suicide does not fall within the ambit of section 216 of the Criminal Code and is exempt from punishment. However, a person can be held criminally responsible under the Narcotics Act for having provided a lethal drug to an individual wishing to end his or her life.", "According to the case-law of the Federal Court of Justice (compare judgment of 13 September 1994, 1 StR 357/94) the discontinuation of a life ‑ prolonging treatment of a terminally ill patient with the patient’s consent does not engage criminal responsibility. This applies irrespective of the fact that the interruption of the treatment has to be effected by actively stopping and switching off the medical device (Federal Court of Justice, judgment of 25 June 2010, 2 StR 454/09).", "2. Professional rules for doctors", "24. The professional codes of conduct are drawn up by the medical associations under the supervision of the health authorities. The codes are largely similar to the Model Professional Code for German Doctors, section 16 of which provides as follows:", "(Assisting the dying)", "“(1) Doctors may – prioritising the will of the patient – refrain from life-prolonging measures and limit their activities to the mitigation of symptoms only if postponement of an inevitable death would merely constitute an unacceptable prolongation of suffering for the dying person.", "(2) Doctors may not actively curtail the life of the dying person. They may not put their own interests, or the interests of third parties, above the well-being of the patient.”", "Contraventions against the Professional Code of Conduct are sanctioned by disciplinary measures culminating in a withdrawal of the licence to practise medicine.", "In connection with the demand for doctor-assisted suicide, the 112 th German Medical Assembly of May 2009 resolved that doctors should provide assistance in and during the process of dying, but should not help patients to die, as the involvement of a doctor in suicide would contravene medical ethics.", "IV. COMPARATIVE LAW", "26. Comparative research in respect of forty-two Council of Europe Member States shows that in thirty-six countries (Albania, Andorra, Austria, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, France, Georgia, Greece, Hungary, Ireland, Latvia, Lithuania, the Former Yugoslav Republic of Macedonia, Malta, Moldova, Monaco, Montenegro, Norway, Poland, Portugal, Romania, Russia, San Marino, Spain, Serbia, Slovakia, Slovenia, Turkey, Ukraine and the United Kingdom) any form of assistance to suicide is strictly prohibited and criminalised by law. In Sweden and Estonia, assistance to suicide is not a criminal offence; however, Estonian medical practitioners are not entitled to prescribe a drug in order to facilitate suicide. Conversely, only four member States (Switzerland, Belgium, the Netherlands and Luxembourg) allow medical practitioners to prescribe lethal drugs, subject to specific safeguards (compare Haas v. Switzerland, no. 31322/07, §§ 30-31 and 55, 20 January 2011).", "THE LAW", "I. ALLEGED VIOLATION OF THE APPLICANT’S RIGHTS UNDER ARTICLE 8 OF THE CONVENTION", "27. The applicant complained that the domestic courts’ refusal to examine the merits of his complaint about the Federal Institute’s refusal to authorise his wife to acquire a lethal dose of pentobarbital of sodium had infringed his right to respect for private and family life under Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Whether there had been an interference with the applicant’s rights under Article 8", "1. Submissions by the Government", "28. According to the Government, there had not been any interference with the applicant’s rights under Article 8 of the Convention. The Government considered that the applicant could not claim to be a victim of a violation of his Convention rights within the meaning of Article 34 of the Convention. They submitted that the applicant himself was not the subject of the State measure complained of; neither could he qualify as an “indirect victim”.", "29. The Government did not dispute the fact that the applicant had been emotionally affected by his wife’s suicide and the surrounding circumstances. It was true that the Court had accepted that under very specific circumstances serious violations of the Convention rights guaranteed in Articles 2 and 3 might give rise to additional violations of close relatives in view of the emotional distress inflicted upon them. However, there was no indication that, in terms of degree and manner, the applicant’s suffering went beyond the burden that was inevitable when a spouse faced obstacles in organising his or her suicide.", "30. In contrast to cases in which the victim was prevented by State action from lodging an application, the applicant’s wife had been in a position to lodge a complaint with the Court herself even after the alleged violation of her Convention right. The fact that she had ended her life of her own accord before lodging an application could not result in an extension of the entitlement to lodge an application, having particular regard to the fact that she had not availed herself of any possibility to accelerate the proceedings, for example by requesting interim measures.", "31. The Government further considered that the applicant could not plead that a decision on the application was in the public interest, because the Court had already clarified the relevant issues regarding Article 8 of the Convention in its Pretty judgment (cited above), and Article 37 § 1 of the Convention was not applicable to a case in which the immediate victim of a measure taken by the State had died before lodging an application with the Court.", "32. According to the Government, Article 8 of the Convention was not applicable in the instant case. They considered that the instant case had to be distinguished from the Pretty case in that the applicant’s wife had not sought protection from State interference with the realisation of her wish to end her life, but had sought to oblige the State to facilitate the acquisition of a specific drug so that she could take her life in the manner she desired. Such a duty would be diametrically opposed to the values of the Convention, and especially to the State’s duty under Article 2 to protect life.", "33. They pointed out that the Court, in the Pretty case (cited above, § 67), was not prepared explicitly to spell out that Article 8 encompassed a right of every person to decide on the end of his or her life and to receive assistance if necessary. The same held true for the Haas case (cited above, § 61), in which the Court refused to derive a positive obligation from Article 8 to facilitate suicide in dignity. It thus remained unclear whether B.K. had a substantial right to assistance in order to end her life in dignity under Article 8.", "34. Neither was there any interference with a procedural right derived from Article 8. According to the Government, the Court had accepted procedural guarantees relating to family life only in cases where the existence of a substantive right under Article 8 was not in doubt. The procedural guarantees inherent in Article 8 were devised to avert the risk that the conduct of the proceedings as such predetermined their outcome. Conversely, in the instant case, the outcome of the proceedings had not been predetermined by the conduct of the proceedings, but by B.K.’s autonomous decision to end her life. It would be fruitless to derive an additional procedural protection from Article 8 if the substantive right to be protected had yet to be established. This held all the more true since the general procedural guarantees of access to court and fairness in the proceedings were sufficiently covered by Articles 6 § 1 and 13 of the Convention.", "2. Submissions by the applicant", "35. The applicant submitted that the domestic decisions interfered with his own rights under Article 8 of the Convention. Both the Federal Institute and the domestic courts had failed to appreciate that he had a personal interest in the decision on his late wife’s request. This personal interest derived from the wish that his wife’s decision to end her life be respected. Furthermore, the distressing situation provoked by his wife’s unfulfilled wish to commit suicide had immediate repercussions on his own state of health.", "36. The applicant pointed out that his wife had been prevented from ending her life within the privacy of their family home, as originally planned by the couple, and instead he had been forced to travel to Switzerland to enable his wife to commit suicide. The Court had previously considered closest family members to be victims within the meaning of Article 34 of the Convention because of their close relationship to the person mainly concerned, if the interference had implications for the family member lodging the application. In the case at hand, the applicant and his wife had found themselves in a terrible situation, which also concerned the applicant as a compassionate husband and devoted carer. As the relationship between husband and wife was extremely close, any infringement directed against the rights and liberties of one partner was directed against the rights that were shared by both partners. It followed that each partner in the marriage was entitled to defend the joint rights and liberties of both partners and that the applicant was himself a victim of a violation of his Convention rights.", "37. In the present case, denying the right of the widower to complain about the conduct of the German authorities would mean that B.K., in order not to lose her right to submit her complaint, would have been forced to stay alive – with all the suffering this implied – until the entire proceedings before the domestic courts, as well as before the Court, were terminated. As B.K. had died shortly after lodging the administrative appeal in January 2005, she had had no factual possibility of accelerating the court proceedings by requesting interim measures.", "38. Consequently, the questions raised in the present application would never be answered unless a patient endured many years of additional suffering. This would be in direct contradiction to the essence of the Convention, which was the protection of human dignity, freedom and autonomy and to the principle that the Convention was intended to guarantee not rights that were theoretical or illusory, but rights that were practical and effective (the applicant referred to Artico v. Italy, 13 May 1980, Series A no. 37).", "39. According to the applicant, Article 8 of the Convention encompassed the right to end one’s own life. The right to life in the sense of Article 2 did not contain any obligation to live until the “natural end”. B.K.’s decision to end her biological life did not imply that she waived in any way her right to life. The lethal dose of medication requested by her would have been necessary in order to allow her to end her life by a painless and dignified death in her own family home. Because of the refusal to authorise the purchase, she had been forced to travel to Switzerland in order to end her life.", "3. Submissions by the third parties", "(a) Dignitas", "40. Dignitas submitted that a person’s decision to determine the manner of ending his or her life was part of the right to self-determination protected by Article 8 of the Convention. A Contracting State should only regulate the right of an individual who independently decided on the time or methods of his or her demise in order to prevent hasty and insufficiently considered actions. As far as the associations working in this field already had preventive mechanisms in place, governmental measures were not necessary in a democratic society.", "(b) AlfA", "41. Referring to the Court’s case law, in particular the case of Sanles Sanles v. Spain ((dec.), no. 48335/99, ECHR 2000 ‑ XI) AlfA submitted that the rights relied upon by the applicant were of a non-transferable nature and could not be relied upon by a third party. Under the case-law of the Court, transferability of victim status could only occur where the alleged violation had prevented the direct victim from asserting his claim ( Bazorkina v. Russia, no. 69481/01, § 139, 27 July 2006) or where the negative consequences of an alleged violation directly affected the heirs bringing a claim on behalf of the deceased ( Ressegatti v. Switzerland, no. 17671/02, § 25, 13 July 2006). However, none of these principles applied in case an applicant, having complained about the denial of authorisation to die by assisted suicide, subsequently died as a result of assisted suicide carried out under a jurisdiction where such act was not illegal.", "42. Furthermore, neither the Convention nor any other document governing the right to life had ever recognised the converse right to die. The liberalisation of assisted suicide in the Netherlands had led to an alarming number of abuse cases, in which lethal injections were given without the patient’s consent.", "4. The Court’s assessment", "43. The Court observes, at the outset, that it qualifies the Government’s objection against the applicant’s victim status as a question of whether there had been an interference with the applicant’s own rights under Article 8 of the Convention. The Court notes that the applicant submitted that his wife’s suffering and the eventual circumstances of her death affected him in his capacity as a compassionate husband and carer in a way which led to a violation of his own rights under Article 8 of the Convention. In this respect, the instant case has to be distinguished from cases brought before the Court by the deceased person’s heir or relative solely on behalf of the deceased. It follows that it does not have to be determined in the present context whether the Convention right relied upon by the applicant was capable of being transferred from the immediate victim to his or her legal successor (compare in this respect Sanles Sanles, cited above).", "44. In spite of these differences, the Court considers that the criteria developed in its previous case-law for allowing a relative or heir to bring an action before the Court on the deceased person’s behalf are also of relevance for assessing the question whether a relative can claim a violation of his own rights under Article 8 of the Convention. The Court will thus proceed by examining the existence of close family ties (see (a) below, compare, for example, Direkçi, v. Turkey (dec.), no. 47826/99, 3 October 2006); whether the applicant had a sufficient personal or legal interest in the outcome of the proceedings (see (b), below, compare Bezzina Wettinger and Others v. Malta, no. 15091/06, § 66, 8 April 2008; Milionis and Others v. Greece, no. 41898/04, §§ 23-26, 24 April 2008; Polanco Torres and Movilla Polanco, cited above, § 30, 21 September 2010) and whether the applicant had previously expressed an interest in the case (see (c), below, compare Mitev v. Bulgaria (dec.), no. 42758/07, 29 June 2010).", "45. (a) The Court notes, at the outset, that the applicant and B.K. had been married for 25 years at the time the latter filed her request to be granted the permission to acquire the lethal drug. There is no doubt that the applicant shared a very close relationship with this late wife.", "(b) The applicant has further established that he had accompanied his wife throughout her suffering and had finally accepted and supported her wish to end her life and travelled with her to Switzerland in order to realise this wish.", "(c) The applicant’s personal commitment is further demonstrated by the fact that he lodged the administrative appeal jointly with his wife and pursued the domestic proceedings in his own name after her death. Under these exceptional circumstances, the Court accepts that the applicant had a strong and persisting interest in the adjudication of the merits of the original motion.", "46. The Court further observes that the instant case concerns fundamental questions evolving around a patient’s wish to self ‑ determinedly end his or her life which are of general interest transcending the person and the interest both of the applicant and of his late wife. This is demonstrated by the fact that similar questions have repeatedly been raised before the Court (compare Pretty and Sanles Sanles, both cited above, and, most recently, Haas, cited above).", "47. The Court finally turns to the Government’s argument that there had been no need to grant the applicant an own right to pursue his wife’s motion, as B.K. could have awaited the outcome of the proceedings before the domestic courts, which she could have accelerated by requesting interim measures. The Court observes, at the outset, that the applicant and B.K. jointly lodged an administrative appeal on 14 January 2005. On 12 February 2005, less than a month later, B.K. committed suicide in Switzerland. The ensuing proceedings before the domestic courts lasted until 4 November 2008, when the Federal Constitutional Court declared the applicant’s constitutional complaint inadmissible. It follows that the domestic proceedings were terminated some three years and nine months after B.K.’s death.", "48. With regard to the Government’s submissions that B.K. could have requested interim measures in order to expedite the proceedings, the Court observes that interim measures are generally aimed at safeguarding a plaintiff’s legal position pending the main proceedings. They are, as a matter of principle, not meant to foreclose the outcome of the main proceedings. Having regard to the gravity of the claim at issue and to the irreversible consequences any granting of an interim injunction would necessarily have entailed, the Court is not convinced that requesting an interim injunction in the instant case would have been suited to accelerate the proceedings before the domestic courts.", "49. Even assuming that the domestic courts would have processed the proceedings more speedily if B.K. had still been alive pending the proceedings, it is not for the Court to decide whether B.K., having decided to end her life after a long period of suffering, should have awaited the outcome of the main proceedings before three court instances in order to secure a decision on the merits of her claim.", "50. Having regard to the above considerations, in particular to the exceptionally close relationship between the applicant and his late wife and his immediate involvement in the realisation of her wish to end her life, the Court considers that the applicant can claim to have been directly affected by the Federal Institute’s refusal to grant authorisation to acquire a lethal dose of pentobarbital of sodium.", "51. The Court further reiterates that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which does not lend itself to exhaustive definition (see, inter alia, Pretty, cited above, § 61). In the Pretty judgment, the Court established that the notion of personal autonomy is an important principle underlying the guarantees of Article 8 of the Convention (see Pretty, ibid. ). Without in any way negating the principle of sanctity of life protected under the Convention, the Court considered that, in an era of growing medical sophistication combined with longer life expectancies, many people were concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflicted with strongly held ideas of self and personal identity ( Pretty, cited above, § 65). By way of conclusion, the Court was “not prepared to exclude” that preventing the applicant by law from exercising her choice to avoid what she considered would be an undignified and distressing end to her life constituted an interference with her right to respect for private life as guaranteed under Article 8 § 1 of the Convention ( Pretty, cited above, § 67).", "52. In the case of Haas v. Switzerland, the Court further developed this case-law by acknowledging that an individual’s right to decide in which way and at which time his or her life should end, provided that he or she was in a position freely to form her own will and to act accordingly, was one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention (see Haas, cited above, § 51). Even assuming that the State was under an obligation to adopt measures facilitating a dignified suicide, the Court considered, however, that the Swiss authorities had not violated this obligation in the circumstances of that specific case ( Haas, cited above, § 61).", "53. The Court finally considers that Article 8 of the Convention may encompass a right to judicial review even in a case in which the substantive right in question had yet to be established (compare Schneider v. Germany, no. 17080/07, § 100, 15 September 2011).", "54. Referring to the above considerations, the Court considers that the Federal Institute’s decision to reject B.K.’s request and the administrative courts’ refusal to examine the merits of the applicant’s motion interfered with the applicant’s right to respect for his private life under Article 8 of the Convention.", "B. Compliance with Article 8 § 2 of the Convention", "55. The Court will thus proceed by examining whether the applicant’s own rights under Article 8 of the Convention were sufficiently safeguarded within the course of the domestic proceedings.", "1. Submissions by the Government", "56. The Government submitted that the applicant’s claims regarding his own rights were fully heard by the German courts. The mere fact that these courts rendered decisions of inadmissibility did not mean that they did not deal with the substance of the applicant’s claim. The Cologne Administrative Court examined the alleged violation of the applicant’s rights under Article 8 of the Convention and quoted the relevant case law of the Court. It followed that the applicant’s procedural rights had been sufficiently safeguarded in the domestic proceedings.", "57. Even assuming that Article 8 of the Convention could impose the duty on a State to facilitate the acquisition of a specific drug in order to facilitate suicide, the Government considered that the Federal Institute’s refusal was justified under paragraph 2 of Article 8. The decision had a legal basis in the relevant provisions of the Narcotics Act and pursued the legitimate aim of protecting health and the right to life. As regarded the question whether the decision was necessary in a democratic society, the Government considered that they should be granted a wide margin of appreciation, having particular regard to the fact that the legal situation in the Member States varied considerably. They further referred to the ethical dimension of the question of whether and to what extent the State should facilitate or support suicide, which was demonstrated by the fact that the German National Ethics Council ( Nationaler Ethikrat ) had examined the questions at stake. The fundamental importance which the German legal order attached to the protection of life against inflicted euthanasia also had strong historical reasons which had led to a particularly forceful legal concept of human dignity.", "58. Moreover, B.K. had other possibilities at her disposal to end her life painlessly. In particular, she could have demanded that her doctor switch off the respiratory equipment while being treated with palliative measures. Under the law as applied by the domestic courts at the relevant time (see paragraph 23 above) her doctor would not have risked criminal responsibility.", "59. The Government further submitted that it was primarily up to the Government to assess which risks granting unrestricted access to drugs entailed. They considered that granting unrestricted access to a fatal drug could create an appearance of normality, which could lead to a sense of pressure on the part of the elderly and the seriously ill “not to become a burden”. Summing up, the Government considered that the overriding interest of protecting life justified the refusal to grant the applicant’s wife the authorisation to obtain a lethal dose of pentobarbital of sodium.", "2. Submissions by the applicant", "60. The applicant submitted that the domestic courts, by refusing to examine the merits of his motion, had violated his procedural rights under Article 8 of the Convention.", "61. The decision taken by the Federal Institute failed to pursue a legitimate aim and was not necessary within the meaning of paragraph 2 of Article 8. The lethal dose of medication requested by the applicant’s wife would have been necessary in order to allow ending her life by a painless and dignified death in her own family home. There were no other means available which would have allowed her to end her life in her family home. In particular, the pertinent rules would not have allowed her to end her life by interrupting life-supporting treatment in a medically assisted way, as she was not terminally ill at the time she decided to put an end to her life. The pertinent law in this area was and remained unclear and only allowed the interruption of life-support for patients suffering from a life-threatening illness.", "62. The applicant accepted that a measure of control was necessary in order to prevent abuse of lethal medication. However, suicide should be allowed if it was justified on medical grounds. The applicant further considered that assisted suicide was not incompatible with Christian values and was more broadly accepted by society than the Government might assume. In this respect, the applicant referred to several public statements issued by individual persons and non-governmental organisations in Germany. The applicant further emphasised that he did not advocate the provision of unrestricted access to lethal drugs, but merely considered that his wife should have been authorised the requested dose in this individual case. There was no indication that the decision of an adult and sane person to end his or her life ran counter to the public interest or that the requested authorisation would lead to an abuse of narcotic substances. In this respect, the applicant pointed out that pentobarbital of sodium was widely prescribed as a means of assisted suicide in Switzerland without this having any negative effects.", "3. Submissions by the third parties", "63. Dignitas considered that the requirements laid down in the Artico judgment of the Court (cited above) could only be fulfilled if pentobarbital of sodium was made available to persons wishing to end their life and if at the same time experienced personnel ensured its correct application. The third party finally submitted that the option of an assisted suicide without having to face the heavy risk inherent in commonly known suicide attempts was one of the best methods of suicide prevention.", "64. AlfA considered that even a blanket ban on assisted suicide was not a disproportionate restriction on the right to privacy enshrined in Article 8 of the Convention as such law reflected the importance of the right to life. The restrictions existing in Germany were necessary in the overriding interest of protecting life until natural death. Doctors overwhelmingly concurred that palliative care improvements rendered assisted suicide unnecessary.", "4. Assessment by the Court", "65. The Court will start its examination under the procedural aspect of Article 8 of the Convention. The Court observes, at the outset, that both the Administrative Court and the Administrative Court of Appeal refused to examine the merits of the applicant’s motion on the ground that he could neither rely on his own rights under domestic law and under Article 8 of the Convention, nor did he have standing to pursue his late wife’s claim after her death. While the Cologne Administrative Court, in an obiter dictum, expressed the opinion that the Federal Institute’s refusal had been lawful and in compliance with Article 8 of the Convention (see paragraph 18, above), neither the Administrative Court of Appeal nor the Federal Constitutional Court examined the merits of the original motion.", "66. The Court concludes that the administrative courts – notwithstanding an obiter dictum made by the first instance court – refused to examine the merits of the claim originally brought before the domestic authorities by B.K.", "67. The Court further observes that the Government did not submit that the refusal to examine the merits of this case served any of the legitimate interests under paragraph 2 of Article 8. Neither can the Court find that the interference with the applicant’s right served any of the legitimate aims enumerated in that paragraph.", "68. It follows that there has been a violation of the applicant’s right under Article 8 to see the merits of his motion examined by the courts.", "69. With regard to the substantive aspect of the complaint under Article 8, the Court reiterates that the object and purpose underlying the Convention, as set out in Article 1, is that the rights and freedoms should be secured by the Contracting State within its jurisdiction. It is fundamental to the machinery of protection established by the Convention that the national systems themselves provide redress for breaches of its provisions, with the Court exercising a supervisory role subject to the principle of subsidiarity (compare, among other authorities, Z. and Others v. the United Kingdom, no. 29392/95, § 103, ECHR 2001-V and A. and Others v. the United Kingdom [GC], no. 3455/05, § 147, ECHR 2009).", "70. The Court considers that this principle is even more pertinent if the complaint concerns a question where the State enjoys a significant margin of appreciation. Comparative research shows that the majority of Member States do not allow any form of assistance to suicide (compare paragraph 26, above and Haas, cited above, § 55). Only four States examined allowed medical practitioners to prescribe a lethal drug in order to enable a patient to end his or her life. It follows that the State Parties to the Convention are far from reaching a consensus in this respect, which points towards a considerable margin of appreciation enjoyed by the State in this context (also compare Haas, cited above, § 55).", "71. Having regard to the principle of subsidiarity, the Court considers that it is primarily up to the domestic courts to examine the merits of the applicant’s claim. The Court has found above that the domestic authorities are under an obligation to examine the merits of the applicant’s claim (see paragraph 66, above). Accordingly, the Court decides to limit itself to examining the procedural aspect of Article 8 of the Convention within the framework of the instant complaint.", "72. It follows from the above that the domestic courts’ refusal to examine the merits of the applicant’s motion violated the applicant’s right to respect for his private life under Article 8 in of the Convention.", "II. ALLEGED VIOLATION OF THE APPLICANT’S WIFE’S RIGHTS UNDER ARTICLE 8 OF THE CONVENTION", "73. The Court recalls that, in its decision on the admissibility of the instant complaint, it had joined to the merits the question whether the applicant had the legal standing to complain about a violation of his late wife’s Convention rights.", "A. The Government’s submissions", "74. Relying on the Court’s decision in the case of Sanles Sanles (cited above), the Government submitted that the asserted right to end one’s own life was of an eminently personal and non-transferable nature and that the applicant could therefore not assert this right in the name of his deceased wife. There was no reason to depart from this case law. The applicant’s participation in the domestic proceedings could not turn an eminently personal right, such as the alleged right to assistance in order to end one’s life, into a right that could be enforced by others.", "75. But even if the asserted right were to be considered transferable, the applicant could not complain of a violation of his deceased wife’s right under Article 8 of the Convention as there was no indication that, in terms of degree and manner, the applicant’s suffering went beyond the burden that was inevitable when a spouse faced obstacles in organising his or her suicide.", "B. The applicant’s submissions", "76. The applicant considered that the instant case fell to be distinguished from the Sanles Sanles case. In particular, he shared a much closer relationship with the deceased person than the sister-in-law who lodged the complaint in the above-mentioned case. Furthermore, the applicant, in the instant case, could claim a violation both of his deceased wife’s rights and of his own rights under Article 8.", "77. It was decisive that the applicant and his wife had jointly submitted an administrative appeal against the Federal Institute’s decision. After his wife’s death, he had pursued the proceedings before the courts. It followed that he had a legitimate interest to pursue this case before the Court. The applicant further emphasised that there was a particular general interest in a ruling on the issues raised by the instant case.", "C. The Court’s assessment", "78. The Court reiterates that in the case of Sanles Sanles (cited above) the applicant was the sister-in law of Mr S., a deceased tetraplegic who had brought an action in the Spanish courts requesting that his general practitioner be authorised to prescribe him the medication necessary to relieve him of the pain, anxiety and distress caused by his condition “without that act being considered under the criminal law to be assisting to suicide or to be an offence of any kind”. The Court considered that the right claimed by the applicant under Article 8 of the Convention, even assuming that such right existed, was of an eminently personal nature and belonged to the category of non-transferable rights. Consequently, the applicant could not rely on this right on behalf of Mr S. and the complaint was to be declared inadmissible as being incompatible ratione personae with the provisions of the Convention.", "79. The Court confirmed the principle that Article 8 was of a non ‑ transferrable nature and could thus not be pursued by a close relative or other successor of the immediate victim in the cases of Thevenon v. France ((dec.), no. 2476/02, 28 June 2006) and Mitev (cited above).", "80. The Court reiterates that “[while it] is not formally bound to follow its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases.” (see, among many other authorities, Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002 ‑ VI, and Bayatyan v. Armenia [GC], no. 23459/03, § 98, 7 July 2011, and the case law cited in those judgments).", "81. The Court does not find that it has been presented with sufficient reasons to depart from its established case-law as far as it was under consideration by the Court in the instant case. It follows that the applicant does not have the legal standing to rely on his wife’s rights under Article 8 of the Convention because of the non-transferable nature of these rights. The Court recalls however that it has concluded above that there has been a violation of the applicant’s own right to respect for his private life in the instant case (see paragraph 72 above). It follows that the applicant is not deprived of a protection under the Convention even if he is not allowed to rely on his wife’s Convention rights.", "82. By virtue of Article 35 § 4 in fine of the Convention, which empowers it to “reject any application which it considers inadmissible ... at any stage of the proceedings”, the Court concludes that the applicant’s complaint about a violation of his late wife’s rights under Article 8 of the Convention is to be rejected under Article 34 as being incompatible ratione personae with the provisions of the Convention.", "III. ALLEGED VIOLATION OF THE APPLICANT’S RIGHT OF ACCESS TO A COURT", "83. Relying on Article 13 in conjunction with Article 8 of the Convention, the applicant complained that the German courts had violated his right to an effective remedy when denying his right to challenge the Federal Institute’s refusal to grant his wife the requested authorisation.", "84. In its decision on admissibility, the Court has further considered that this complaint might fall to be examined under the aspect of the applicant’s right of access to a court. However, in the light of its above finding regarding Article 8 of the Convention (see paragraph 72 above), the Court considers that it is not necessary to examine whether there has also been a violation of the applicant’s rights under Article 13 or under Article 6 § 1 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "85. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "1. Non- pecuniary damage", "86. The applicant claimed an overall sum of 5,000 euros (EUR) in respect of non-pecuniary damage for his wife’s pain and additional suffering due to the unwanted extension of her life and EUR 2,500 for his own suffering.", "87. The Government considered that it had not been necessary for the applicant and his wife to subject themselves to additional suffering as B.K. would have had other means at her disposal to end her life. They furthermore pointed out that B.K.’s personal suffering ended at the time of her death.", "88. The Court has found above that the applicant cannot rely on a violation of his late wife’s Convention rights. It follows that he cannot claim any compensation for non-pecuniary damage on her behalf. Conversely, the Court considers that the applicant must have sustained non-pecuniary damage due to the domestic courts’ refusal to examine the merits of his motion and, deciding on an equitable basis, awards the sum claimed for his own suffering in full.", "2. Pecuniary damage", "89. The applicant, relying on documentary evidence, further claimed an overall sum of EUR 5,847.27, comprising the lawyer’s fee for the administrative appeal against the Federal Institute’s decision (EUR 197.20), costs incurred for photocopying B.K.’s medical file (EUR 94.80) and the expenses incurred by B.K.’s transport to Switzerland and by her assisted suicide.", "90. The Government submitted that there was no causal connection between the alleged violation of a Convention right and the damage claimed.", "91. The Court considers, at the outset, that the costs of the administrative appeal proceedings fall to be considered below under the head of “costs and expenses”. With regard to the remainder of the applicant’s claim, the Court observes that B.K. committed suicide in Switzerland before the German courts had given any decision on the motion. Accordingly, the Court does not discern a link of causation between the domestic courts’ refusal to examine the merits of B.K.’s claim and the expenses incurred by B.K.’s transport to Switzerland and her suicide. Accordingly, the Court does not make any award in this respect.", "B. Costs and expenses", "92. The applicant, who submitted documentary evidence in support of his claim, sought a total of EUR 46,490.91 for costs and expenses. This sum comprised EUR 6,539.05 for lawyers’ fees and expenses in the proceedings before the national courts, as well as EUR 39,951.86 for lawyers’ fees and expenses before this Court. He submitted that he had agreed to pay his lawyer EUR 300 per hour.", "93. The Government expressed their doubts as to the necessity and appropriateness of the amount claimed. They further pointed out that the applicant had not submitted a written agreement on the hourly rate he claimed.", "94. According to the Court’s case law, an applicant is entitled to the reimbursement of costs and expenses only as far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the claim for costs and expenses in the domestic proceedings in full. Including the costs of the administrative appeal proceedings (EUR 197.20, see paragraphs 89 and 91 above), the Court awards the applicant the amount of EUR 6,736.25 (including VAT) for the proceedings before the domestic courts. Further taking into account that the applicant’s complaints before the Court were only partially successful, the Court considers it reasonable to award the sum of EUR 20,000 (including VAT) for the proceedings before the Court.", "C. Default interest", "95. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "THE CIRCUMSTANCES OF THE CASE", "9. The applicant was born in 1931 and died on 10 November 2011.", "10. For many years, the applicant had expressed the wish to end her life. She explained that she was becoming increasingly frail as time passed and was unwilling to continue suffering the decline of her physical and mental faculties. She decided that she wished to end her life by taking a lethal dose of sodium pentobarbital. She contacted an assisted- suicide association – EXIT – for support, which replied that it would be difficult to find a medical practitioner who would be prepared to provide her with a medical prescription for the lethal drug.", "11. On 20 October 2008 a psychiatrist, Dr T., submitted an expert opinion in which he observed that there was no doubt that the applicant was able to form her own judgment. From a psychiatric medical point of view, Dr T. did not have any objection to the applicant being prescribed a lethal dose of sodium pentobarbital. However, he refrained from issuing the prescription himself on the ground that he did not want to confuse the roles of medical expert and treating physician.", "12. By letters of 5 November and 1 December 2008 and 4 May 2009, the applicant ’ s representative submitted on her behalf a request to be given a prescription for sodium pentobarbital to three further medical practitioners, who all declined to issue the requested prescription.", "13. On 16 December 2008 the applicant submitted a request to the Health Board of the Canton of Zurich to be provided with 15 grams of sodium pentobarbital in order for her to commit suicide. On 29 April 2009 the Health Board rejected the applicant ’ s request.", "14. On 29 May 2009 the applicant lodged an appeal with the Administrative Court of the Canton of Zurich. On 22 October 2009 the Administrative Court dismissed the appeal. It considered, in particular, that the prerequisite of a medical prescription for obtaining a lethal dose of sodium pentobarbital was in accordance with Article 8 of the Convention. The requirement to obtain a medical prescription served the aim of preventing premature decisions and guaranteed that the intended action was medically justified. It further ensured that the decision was based on a deliberate exercise of the free will of the person concerned. The Administrative Court observed that Dr T., in his expert opinion, had not considered whether the applicant was suffering from any illness which would justify the assumption that the end of her life was near. The wish to die taken on its own, even if it was well considered, was not sufficient to justify the issuing of a medical prescription. Accordingly, the content of the case file did not demonstrate that the necessary prerequisites for issuing a medical prescription had been fulfilled in the instant case. There was therefore a need for further medical examination. Under these circumstances, the Administrative Court considered that there was no sufficient reason to dispense the applicant from the necessity of undergoing a thorough medical examination and of obtaining a medical prescription.", "15. On 12 April 2010 the Federal Supreme Court dismissed an appeal lodged by the applicant. It observed, inter alia, that the applicant undisputedly did not fulfil the prerequisites laid down in the medical -ethical guidelines on the care of patients at the end of life adopted by the Swiss Academy of Medical Sciences, as she was not suffering from a terminal illness, but had expressed a wish to die because of her advanced age and increasing frailty. Even though the Federal Supreme Court had previously considered that the issuing of a medical prescription for sodium pentobarbital to a person suffering from an incurable, persistent and serious psychological illness did not necessarily amount to a violation of a doctor ’ s professional duties, this exception had to be handled with the “utmost restraint” and did not enjoin the medical profession or the State to provide the applicant with the requested dose of sodium pentobarbital to put an end to her life. The Federal Supreme Court further noted that the issuing of the requested substance required a thorough medical examination and, with respect to the persistence of the wish to die, long-term medical supervision by a specialist practitioner who was prepared to issue the necessary prescription. This requirement could not be circumvented by the applicant ’ s request for an exemption from the necessity of obtaining a medical prescription.", "16. On 10 November 2010 counsel for the applicant lodged an application with the Court.", "17. On 24 October 2011 the applicant obtained a medical prescription for 15 grams of sodium pentobarbital signed by a medical practitioner, Dr U. On 10 November 2011 she ended her life by imbibing the prescribed substance. According to a police report dated 14 November 2011, no relatives of the deceased could be identified. The report concluded that the applicant had committed suicide with the assistance of EXIT and that no third person was found to be criminally liable in this context.", "18. The Court was not made aware of the applicant ’ s death until 7 January 2014 (see paragraph 19 below)." ]

[ "THE LAW", "THE GOVERNMENT ’ S PRELIMINARY OBJECTION", "A. The Government ’ s submissions to the Grand Chamber", "19. In their memorial to the Court of 7 January 2014, the Government stated that when preparing their memorial they had taken the precaution of enquiring about the applicant ’ s situation at the municipality where she lived and had found out that she had died on 10 November 2011. Thus, by the time the Chamber had adopted its judgment in this case, she had been dead for approximately one and a half years. Relying on the Court ’ s decision in the case of Predescu v. Romania ( no. 21447/03, § 25, 2 December 2008 ), they requested the Court to declare the application inadmissible on the ground of abuse of the right of petition, in accordance with Article 35 § § 3 (a) and 4 of the Convention.", "20. The Government submitted that the applicant’s counsel had not only failed to inform the Court of the applicant ’ s death – which he should have done at the latest when the Court ’ s Registry provided him with the statement of facts, assuming her to be alive – but had also misled the Court in his submissions by giving the impression that the applicant was still alive.", "21. In the Government ’ s view, the conduct of the applicant ’ s counsel had been such as to mislead the Court as regards an essential aspect for its examination of the application.", "B. Counsel for the applicant ’ s submissions to the Grand Chamber", "22. The applicant’s counsel responded that he had not had any personal contact with his client since January 2010 and had only become aware of her death on 9 January 2014, when he had received a copy of the Government ’ s memorial of 7 January 2014.", "23. Counsel explained that the applicant had expressed her wish that counsel should send any further correspondence to Mr F., a retired pastor who also voluntarily worked for the assisted - suicide association EXIT. The reason for this arrangement was, inter alia, that receiving letters from her counsel directly had caused her stress and that she therefore needed assistance from a person of trust. Thus, after her appeal to the Federal Supreme Court in January 2010, it had been agreed that Mr F. would bring any communications to her personally and explain them to her. Counsel submitted that he had complied with those instructions.", "24. Upon receipt of the Government ’ s submissions on 9 January 2014, counsel had immediately contacted Mr F., who had explained to him that he had refrained from notifying him of the applicant ’ s death at the applicant ’ s express request because she feared that the ongoing proceedings would otherwise be discontinued. In the summer of 2011, when it had become clear that the applicant would end her life, she had informed Mr F. that counsel had told her that if she died during the proceedings the case would be at an end, and that she did not want this to happen as she wanted “to open the way for other people in her situation”. Mr F. had taken the view that a spiritual adviser ’ s professional duty did not permit disclosure against the applicant ’ s express wishes. Counsel for the applicant further stated that he found it extremely regrettable that Mr F. had not informed him immediately of the applicant ’ s death, as counsel would have duly informed the Court and would have made an application for the proceedings to be continued nevertheless.", "25. Relying on the Court ’ s case-law in previous cases where an applicant had died or had expressed the wish to withdraw his or her complaint during the proceedings before the Commission or the Court (counsel referred to the Court ’ s judgments in Scherer v. Switzerland, 25 March 1994, Series A no. 287, and Tyrer v. the United Kingdom, 25 April 1978, § 21, Series A no. 26 ), he argued that upon lodging an application with the Convention institutions the latter became master of the proceedings. It was thus for the Court to decide whether the proceedings in a given case should be continued. The decisive factor in that regard was whether, in the Court ’ s view, the case raised general questions of public interest that required further examination.", "26. In the instant case, counsel for the applicant invited the Court to continue the proceedings on the ground that the case raised substantive questions regarding compliance with the Convention which required further examination in the public interest. “ Euthanasia” was a contentious and much - debated issue in many European countries. Cases of this nature were generally brought by persons who were elderly and/or ill. If proceedings were to be systematically abandoned when such a person died, the questions raised by such cases could never be decided by the Court.", "C. The Court ’ s assessment", "27. Article 35 § 3 (a) of the Convention provides:", "“The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:", "(a) the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application; ... ”", "28. The Court reiterates that under this provision an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts (see Akdivar and Others v. Turkey, 16 September 1996, § § 53-54, Reports of Judgments and Decisions 1996 ‑ IV; Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000 ‑ X; Rehak v. the Czech Republic (dec.), no. 67208/01, 18 May 2 004; Popov v. Moldova (no. 1), no. 74153/01, § 48, 18 January 2005; Kerechasvili v. Georgia (dec.), no. 5667/02, ECHR 2006 ‑ V; Miroļubovs and Others v. Latvia, no. 798/05, § 63, 15 September 2009; and Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 97, ECHR 2012 ). The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information (see Hüttner v. Germany ( dec. ), no. 23130 /04, 1 9 June 2006; Predescu, cited above, §§ 25 ‑ 26; and Kowal v. Poland ( dec. ), no. 2912/11, 18 September 2012). The same applies if important new developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 (former Rule 47 § 6 ) of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts ( see Centro Europa 7 S.r.l. and Di Stefano, cited above, and Miroļubovs and Others, cited above). However, even in such cases, the applicant ’ s intention to mislead the Court must always be established with sufficient certainty ( see Al-Nashif v. Bulgaria, no. 50963/99, § 8 9, 20 June 2002; Melnik v. Ukraine, no. 72286/01, §§ 58-60, 28 March 2006; Nold v. Germany, no. 27250/02, § 87, 29 June 2006; and Centro Europa 7 S.r.l. and Di Stefano, cited above).", "29. Turning to the circumstances of the instant case, the Court notes at the outset that in her application lodged with the Court on 10 November 2010 the applicant complained, relying on Article 8 of the Convention, that the Swiss authorities, by depriving her of the possibility of obtaining a lethal dose of sodium pentobarbital, had violated her right to decide by what means and at what point her life would end. It further observes that on 5 January 2012 notice of her application was given to the respondent Government and that on 14 May 2013 the Chamber delivered a judgment in which it held (by four votes to three) that there had been a violation of Article 8 of the Convention, a finding which was based on the assumption that the applicant was still alive (see paragraphs 65 - 67 of the Chamber judgment).", "30. However, it was later revealed that in the meantime, on 24 October 2011, the applicant had obtained a medical prescription for a lethal dose of sodium pentobarbital and that on 10 November 2011 she had ended her life by imbibing the prescribed substance.", "31. This development was not brought to the Court ’ s attention by the applicant or her counsel but by the Government, in their memorial of 7 January 2014, after the case had been referred to the Grand Chamber in accordance with Article 43 of the Convention. When preparing their memorial, the Government had enquired about the applicant ’ s situation and had found out about the fact and the circumstances of her death.", "32. The Court has taken note of the explanation submitted in reply by counsel for the applicant that he had been unaware of his client ’ s death because he had only had contact with her via an intermediary, Mr F., who – at her request – had purposely refrained from notifying counsel of her death. According to Mr F., this was because of her fear that the disclosure of such a fact might prompt the Court to discontinue the proceedings in her case. As her spiritual adviser he had considered himself bound by a professional duty of confidentiality preventing him from disclosing that information against her wishes.", "33. However, in the Court ’ s view, and bearing in mind the particular nature of the present case, the fact that counsel for the applicant had no direct contact with his client but agreed to communicate with her indirectly through an intermediary gives rise to a number of concerns regarding his role as a legal representative in the proceedings before it. In addition to the duties of an applicant to cooperate with the Court (see Rule 44A of the Rules of Court; see also Rule 44C, “Failure to participate effectively”, including the possibility of drawing inferences from the failure of a party “to divulge relevant information of its own motion” ) and to keep it informed of all circumstances relevant to his or her application (see Rule 47 § 7, former Rule 47 § 6), a representative bears a particular responsibility not to make misleading submissions (see Rule 44D).", "34. It transpires from her counsel ’ s explanation that the applicant had not only failed to inform him, and by implication the Court, of the fact that she had obtained the required medical prescription, but had also taken special precautions to prevent information about her death from being disclosed to counsel and eventually to the Court in order to stop the latter discontinuing the proceedings in her case.", "35. Against this background, the Grand Chamber considers that the fact and the circumstances of the applicant ’ s death did indeed concern the very core of the matter underlying her complaint under the Convention. It is also conceivable that had these facts been known to the Chamber they might have had a decisive influence on its judgment of 14 May 2013 concluding that there had been a violation of Article 8 of the Convention (see, mutatis mutandis, Rule 80 of the Rules of Court; Pardo v. France (revision – admissibility), 10 July 1996, §§ 21-22, Reports 1996 ‑ III; Pardo v. France (revision – merits), 29 April 1997, § 23, Reports 1997 ‑ III; and Gustafsson v. Sweden (revision – merits), 30 July 1998, § 27, Reports 1998 ‑ V ). However, there is no need for the Grand Chamber to speculate on this since in any event, in accordance with Article 44 § 2 of the Convention, the Chamber ’ s judgment of 14 May 201 3 has not become final.", "36. According to Mr F., the applicant ’ s motive for withholding the relevant information had been that, regardless of the fact that the ongoing grievance arising from her own personal situation had ceased, the proceedings in her case should continue for the benefit of other people who were in a similar situation. While such a motive may be understandable from the applicant ’ s perspective in the exceptional situation in which she found herself, the Court finds it sufficiently established that by deliberately omitting to disclose that information to her counsel the applicant intended to mislead the Court on a matter concerning the very core of her complaint under the Convention.", "37. Accordingly, the Court upholds the Government ’ s preliminary objection that the applicant ’ s conduct constituted an abuse of the right of application within the meaning of Article 35 § 3 (a) of the Convention." ]

[ "2. The applicant was born in 1941 and lives in Kværndrup. He was represented by Mr Jonas Christoffersen, a lawyer practising in Copenhagen.", "3. The Danish Government (“the Government”) were represented by their Agent, Mr Michael Braad, from the Ministry of Foreign Affairs, and their Co ‑ Agent, Ms Nina Holst ‑ Christensen, from the Ministry of Justice.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. The applicant worked as a physician until 2010.", "6. Around 2015, he founded an association called “Physicians in Favour of Euthanasia” ( Læger for Aktiv Dødshjælp ), for physicians aiming to have euthanasia made lawful in Denmark. In pursuance of this aim, the applicant prepared a guide “Medicines suited for suicide” ( Lægemidler der er velegnede til selvmord ), available on the internet. The guide combined a detailed procedure for how to commit suicide, including a list of about 300 common pharmaceuticals suited to committing suicide, and a description of the dose required to go through with the suicide, possible combinations of pharmaceuticals and caveats about the various pharmaceuticals. The guide also provided advice on how a person could be assured of death by taking the recommended doses of medicines, including by combining different pharmaceuticals or by taking a full dose of a pharmaceutical in combination with a plastic bag over the head and a rubber band around the neck.", "7. It was lawful under Danish law to publish such a guide on the Internet or elsewhere.", "8. On the basis of a radio interview with the applicant in February 2017 in which he stated, inter alia, that he had assisted a patient with a terminal pulmonary condition in dying by administering the pharmaceutical Fenemal, the Patient Safety Authority ( Styrelsen for Patientsikkerhed ) reported the applicant to the police for violation of section 240 of the Penal Code, prohibiting assisted suicide. Moreover, on 3 March 2017 it withdrew the applicant’s doctor’s licence to practise, with the consequence, among other things, that the applicant could no longer prescribe medications for himself or others.", "9. Subsequently, the applicant was charged with two counts of assisted suicide and one count of attempt.", "10. By a judgment of 26 September 2018, the District Court of Svendborg ( Retten i Svendborg ) convicted the applicant of one count of assisted suicide and one count of attempt. He was sentenced to 40 days’ imprisonment, suspended.", "11. On appeal to the High Court of Eastern Denmark ( Østre Landsret ), by a judgment of 30 January 2019 the applicant was convicted of all three counts and sentenced to 60 days’ imprisonment, suspended.", "12. On appeal to the Supreme Court ( Højesteret ), on 23 September 2019 the High Court judgment was upheld.", "13. More concretely, in respect of count 1) the applicant was convicted of attempted assisted suicide committed on 23 March 2017, having together with a co-defendant prescribed medications for A, who wanted to commit suicide. The suicide attempt had failed. The applicant stated that A had contacted him and told him that he suffered from neurological diseases. The applicant had spoken to A several times on the telephone, and they had also communicated by email. The applicant had asked the co-defendant to prescribe Fenemal for A; the applicant had known that A would use the medication to commit suicide. The co-defendant confirmed the correctness of this statement and explained that he had been contacted by the applicant, who had asked him to prescribe Fenemal for A as the applicant could not prescribe any medications himself because his doctor’s licence to practise had been withdrawn. A confirmed that he had been in contact with the applicant, who had helped him obtain the required medication. Since his attempted suicide, A had received medications for his physical pain and his anxiety, and his condition had therefore improved.", "14. In respect of count 2) the applicant was convicted of assisted suicide committed in the spring of 2017, having prior to B’s death dispensed a dose of Fenemal to him, knowing full well that it was intended for his suicide. B had become paralysed in most of his body following a stroke; he no longer found life worth living and wanted to die. The applicant stated that he had visited B and advised him how to commit suicide in accordance with the guide that he had uploaded to the Internet. Subsequently, he had discussed with another person whether it was possible to procure pills for B, but he did not know whether that person had ever supplied the pills. The applicant had not himself provided any medication for B. According to the statement given by B’s former wife, B had tried to be allowed to go to Switzerland for euthanasia. However, no psychiatrists would issue a medical certificate saying that B was mentally prepared, as required by the Swiss authorities. B’s former wife had then contacted the applicant asking him to help B. They had met with the applicant, who had indicated that he could establish contact with someone who could procure the medication. Subsequently, B’s former wife had received a supply for B, which she handed over to B, who had later stated that he now had what he needed. In May 2017, the family had had a farewell dinner with B, and the next day B’s former wife had received a telephone call from the nursing home and been told that B was fast asleep and that it was not possible to waken him up. B had passed away a couple of days later.", "15. In respect of count 3), the applicant was convicted of assisted suicide, committed between 17 July and 6 August 2018. C was 85 years old. She suffered from many infirmities but was not seriously ill. She wished to end her life and had procured the necessary pills herself. On 17 July 2018, she had contacted the applicant by email and asked for his assistance. The applicant and C had exchanged at least nine emails between 17 July 2018 and 8 August 2018. On 19 July 2018 the applicant had asked C which medication she had procured. On 27 July 2018 the applicant had confirmed that the medications at her disposal were excellent and also recommended that she look at the general guide on how to commit suicide, which was available on the website of the network. On 29 July 2018 he was helping her finding the general guide. On 6 August 2018 he confirmed that it was a good idea to combine the medication with a plastic bag over her head, in which connection he had written: “If you are able to go through with it, you will be 100% certain. Remember in that case that it is necessary to put a rubber band around the neck.” On 10 August 2018, C had been found dead in her bed with a plastic bag over her head.", "16. In its judgment of 23 September 2019, the Supreme Court stated:", "“Liability for assisted suicide or attempts at assisted suicide", "By the High Court judgment, [the applicant] was found guilty on two counts of violation of section 240 of the Penal Code for assisted suicide and one count of an attempt at assisted suicide. This case concerns whether, according to the findings of fact of the High Court, the acts performed by [the applicant] as described in the three counts are punishable because they are considered assistance as set out in the provision, and whether the conditions for imposing a sentence for the attempt have been met. In that case, there is also the issue of the length of the sentence.", "It is a punishable offence under section 240 of the Penal Code to assist another person in ending his or her life, but it is not a punishable offence to attempt to take one’s own life. Accordingly, this provision independently criminalises assisted suicide. The Supreme Court finds that it will be determined based on an interpretation of this provision what kinds of assistance fall within the scope of the liability, for which reason it is not possible simply to use as a basis those kinds of complicity that are punishable under the general rule of law set out in section 23 of the Penal Code as complicity in offences. Minor assistance may fall outside the scope of criminal offences under section 240.", "As regards count 2), [the applicant] has been found guilty of violation of section 240 of the Penal Code because he procured medications for B prior to B’s death on 7 May 2017, knowing full well that the medications were intended for his suicide. As regards count 1), [the applicant] has been found guilty of attempted violation of section 240 because he procured medications for A, knowing full well that the medications were intended for A’s suicide, which suicide failed, however.", "The Supreme Court concurs in the finding that [the applicant’s] acts as described in count 1) and count 2) are punishable as assisted suicide as set out in section 240 of the Penal Code. As regards count 1), the Supreme Court concurs in the finding that the conditions for sentencing someone for an attempt have been met as the maximum penalty under section 240 of a fine or imprisonment for a term not exceeding three years makes it possible to sanction attempts, see section 21(3) of the Penal Code. [The applicant’s] submission concerning the legislative history of section 240 cannot lead to a different conclusion.", "As regards count 3), [the applicant] has been found guilty of having in emails exchanged with C advised her about suicide methods, including by confirming the choice of medications and by confirming that it was a good idea to combine them with a plastic bag and by writing, ‘If you are able to go through with it, you will be 100% certain. Remember in that case that it is necessary to put a rubber band around the neck.’ Thereby, he assisted her in committing suicide by taking medicines and putting a plastic bag over her head and closing it with a rubber band.", "Opinion of three judges ... concerning count 3):", "We concur in the finding that by giving advice in his email exchange with C, [the applicant] assisted her in a specific and significant way in committing suicide, and that the advice is not exempt from punishment due to the circumstance that his advice was based on a general guide that had lawfully been uploaded to the website of ‘Physicians in Favour of Euthanasia’. In this context, we have also taken into account that the specific advice offered by [the applicant] to C was suited to a greater extent than the general guide to intensifying her desire to commit suicide. In our opinion, there is no basis for finding that it would be contrary to Article 10 of the European Convention on Human Rights to convict the defendant on this count.", "Opinion of [two] judges ... concerning count 3):", "It appears from the case file that C contacted [the applicant] in July 2018 and indicated in her emails that she was 85 years old and suffered from many infirmities, that she wished to end soon and that things had been clarified with her close family. She had procured the necessary pills, and her intention was also to combine them with a plastic bag. She was very frightened of the potential risk that she would fail, and she was nervous as to whether she would be able to go through with it on her own. [The applicant] then passed on information from the lawful guide on the website, but he did not pass on any information not already available from the website. He neither advocated nor encouraged her to commit suicide. In these circumstances, we find that the information given by [the applicant] to C was not of such a nature that the information can independently be considered to constitute a punishable act of assistance in her ending her life. Accordingly, we find that [the applicant] must be acquitted on this count of violation of section 240 of the Penal Code, which must also be considered to accord best with Article 10 of the European Convention on Human Rights on the right to receive and give information, see in this respect the judgment delivered on 29 October 1992 by the European Court of Human Rights in cases 14234/88 and 14235/88, Open Door and Dublin Well Woman v. Ireland .”", "17. The Supreme Court, by a majority of three judges, sentenced the applicant to 60 days’ imprisonment, suspended. It was taken into account as an aggravating circumstance that to a certain extent the acts were committed in a systematic manner and that the applicant had been charged on three counts, the last act being committed after he had been provisionally charged by the police for violation of section 240 of the Penal Code. It was considered a mitigating circumstance that the applicant was almost 78 years old. The minority of two judges found that the applicant should have a suspended sentence of imprisonment for a term of 30 days, since count 1) was merely an attempt and under count 3) he had not assisted to a significant extent. Moreover, the minority of the judges found that the acts had not been committed in a systematic manner." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "18. The relevant provisions of the Penal Code (Straffeloven ) read as follows:", "Section 21", "(1) Acts aimed at inciting or assisting the commission of an offence are punishable as attempts if the offence is not completed.", "(2) The penalty prescribed for an offence may be reduced for attempts, especially where an attempt reflects little strength or persistence of criminal intent.", "(3) Unless otherwise provided, attempts will only be punished if the offence is punishable by imprisonment for a term exceeding four months.", "Section 23", "(1) The penalty provided for an offence applies to everybody who is complicit in the act by incitement, aiding or abetting. The punishment may be reduced where a person intended only to provide minor assistance or support an intent already formed, and where the offence has not been completed or intentional complicity failed.", "(2) The punishment may also be reduced where a person is complicit in the breach of a special duty to which he is not subject.", "(3) Unless otherwise provided, the punishment for complicity in offences that do not carry a sentence of imprisonment for a term exceeding four months may be remitted where the accomplice intended only to provide minor assistance or support an intent already formed, and where his complicity was due to negligence.", "Section 239", "Any person who kills another at such other person’s explicit request is sentenced to imprisonment for a term not exceeding three years.", "Section 240", "Any person who assists someone in deliberately ending his life is sentenced to a fine or imprisonment for a term not exceeding three years.", "19. Assisted suicide has been criminalised since 1930. Section 240 of the Penal Code was given its current wording by Act No. 218 of 31 March 2004.", "20. In November 2004, the Ministry of Justice requested the Standing Committee on the Criminal Code ( Straffelovrådet ), which is an advisory body tasked with making recommendations on legislative issues related to criminal law, issues of principle relating to the stipulation of administrative criminal law provisions and the implementation in practice of crime policy measures, to consider the issue of whether to criminalise also general encouragement of suicide or suicide “recipes” not aimed at specific persons. In its Report No. 1462/2005 the said committee did not recommend the criminalisation of general encouragement to suicide. In respect of the scope of section 240 of the Penal Code it stated as follows:", "“ 2.2.1. It is not a punishable offence to attempt to take one’s own life, but it is a punishable offence under section 240 of the Penal Code to assist another person in ending his or her life. The maximum sentence is a fine or imprisonment for a term not exceeding three years. The offence is consummated when the victim dies. Depending on the circumstances, it is possible to sentence a person for an attempt at assisting another person in ending his or her life, see section 240, read with section 21, of the Penal Code. Attempts comprise any act aimed at inciting or assisting in the commission of an offence, see pp. 119ff of The Annotated Criminal Code ( Den kommenterede straffelov ) (on General rules). The question is whether section 240 only applies to physical and mental assistance of a qualified nature, or whether in accordance with the general Danish law rule on complicity set out in section 23 of the Penal Code, the provision also applies if the offender, by incitement, aiding or abetting, deliberately assists a particular person in committing suicide, see pp. 206ff (on General rules) and p. 314 (on Special rules) of The Annotated Criminal Code. For an act to be punishable under section 240, it is required in any circumstances that the offender must have performed a specific act of assistance with the intent that one or more specific persons commit suicide. Encouragement of suicide and descriptions of methods to commit suicide do not fall within the scope of section 240 if not directed at specific persons. Therefore, the presentation or dissemination of suicide recipes through Internet websites or the like cannot normally be punished under section 240.", "As mentioned above, a person can be sentenced for assistance under section 240 of the Criminal Code only if the purpose of the offence of assistance is a specific act of assistance. [...]”.", "21. The issue of euthanasia and assisted suicide has regularly been the subject of public and political debate in Denmark, but so far there has not been a political majority in Parliament in favour of amending section 240 of the Penal Code.", "22. The issue of euthanasia and assisted suicide has also been considered by the Council of Ethics ( Det Etiske Råd ). The Council of Ethics is an independent body established in 1987 to advise Parliament, ministers and public authorities on ethical issues in health care while respecting the integrity and dignity of humans and future generations. In 1996, 2003 and 2012, the Council of Ethics published reports and recommendations on euthanasia and assisted suicide. A large majority of the seventeen members of the Council was against the legalisation of euthanasia and assisted suicide in all three reports. The Council has balanced the considerations, on the one hand factors like the right to personal autonomy and on the other hand factors like the sanctity of human life as a fundamental ethical standard and the incompatibility of euthanasia with an ethically appropriate relationship between a physician and a patient. The Danish Council of Ethics discussed the subject again in 2021 on the basis of a judgment delivered by the German Federal Constitutional Court in February 2020, which had ruled that the maintenance of a prohibition of assisted suicide was unconstitutional.", "23. In 2018 Parliament amended the Danish Health Care Act ( sundhedsloven ), enhancing patients’ right to refuse treatment, including life-sustaining treatment, which means that a patient who has come to terms with circumstances and does not want any life-sustaining treatment can refuse the treatment offered even though the consequence of withdrawing from life-sustaining treatment is that the patient will die right away. Moreover, a system of living wills has been set up under which individuals can make binding advance decisions to refuse life-sustaining treatment in specific situations that may occur some time in the future if they become permanently incompetent and are no longer able to exercise their right to personal autonomy. Prior to the adoption of the amendment bill, it was discussed at the readings in Parliament what is a dignified death and what is the right to personal autonomy, and it was discussed that it must be ensured that health care professionals can discontinue life-sustaining treatment without fearing being charged with homicide on request.", "24. Finally, in December 2020, all parties in Parliament concluded a political agreement to roll out an IT system that was to support a future right of elderly, feeble citizens to ask their physician to write a do-not-resuscitate order in the event that they suffer from heart failure. It is expected that a bill granting this right will be introduced in 2021/2022.", "RELEVANT INTERNATIONAL and european MATERIALS", "25. Recommendation 1418 (1999) of the Parliamentary Assembly of the Council of Europe recommended, inter alia, as follows (paragraph 9):", "“... that the Committee of Ministers encourage the member States of the Council of Europe to respect and protect the dignity of terminally ill or dying persons in all respects:", "...", "c. by upholding the prohibition against intentionally taking the life of terminally ill or dying persons, while:", "i. recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member States, in accordance with Article 2 of the European Convention on Human Rights which states that ‘no one shall be deprived of his life intentionally’;", "ii. recognising that a terminally ill or dying person’s wish to die never constitutes any legal claim to die at the hand of another person;", "iii. recognising that a terminally ill or dying person’s wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death.”", "COMPARATIVE LAW", "26. In 2012 a comparative research in respect of forty-two Council of Europe Member States (see Koch v. Germany, no. 497/09, § 26, 19 July 2012) showed that in thirty-six countries (Albania, Andorra, Austria, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, France, Georgia, Greece, Hungary, Ireland, Latvia, Lithuania, the Former Yugoslav Republic of Macedonia, Malta, Moldova, Monaco, Montenegro, Norway, Poland, Portugal, Romania, Russia, San Marino, Spain, Serbia, Slovakia, Slovenia, Turkey, Ukraine and the United Kingdom) any form of assistance to suicide was strictly prohibited and criminalised by law. In Sweden and Estonia, assistance to suicide was not a criminal offence; however, Estonian medical practitioners were not entitled to prescribe a drug in order to facilitate suicide. Conversely, only four member States (Switzerland, Belgium, the Netherlands and Luxembourg) allowed medical practitioners to prescribe lethal drugs, subject to specific safeguards.", "27. The Government have submitted the following information about the current legislation in 20 member States, including Denmark, Norway, Sweden, France, the United Kingdom, Turkey, Bulgaria, Iceland, Ireland, Portugal, Spain, Luxembourg, Belgium, Switzerland, Germany, Italy, Austria, Estonia, the Netherlands and Finland.", "28. Euthanasia is allowed in a number of countries under certain specified conditions, including Spain, the Netherlands, Luxembourg and Belgium. In Spain, following the recent adoption of an Act to this effect, it is now possible for patients suffering from a serious and incurable disease or a serious, chronic and disabling disorder causing unbearable suffering to request that health care professionals administer euthanasia. It is further required that an assessment must be performed by at least two external experts appointed by a regional evaluation commission. Other than the cases that have now been made lawful, all active contributions to or coordination of actions necessary to cause another person’s death are criminalised in Spain. The Netherlands have criminalised euthanasia and assisted suicide. Physicians are, however, exempt from prosecution if six criteria have been met, including that the patient endures unbearable suffering without any prospect of improvement, that the patient has been examined by at least one external physician and that the euthanasia is performed in accordance with the existing health care guidelines. In Luxembourg and Belgium, euthanasia is also lawful under certain conditions, including that the patient’s health problems are ‘incurable’ and the patient suffers from unbearable physical/mental pain, that the patient must have had a number of consultations with his or her physician on the subject and that the physician must have consulted another physician as well as a close relative of the patient (appointed by the patient).", "29. In Portugal, euthanasia continues to be criminalised, but in January 2021 the Portuguese Parliament adopted a bill intended to make euthanasia and physician-assisted suicide lawful for terminally ill and wounded persons. However, the Portuguese Constitutional Court quashed the bill because it found it too unspecific. The ruling party has now introduced a revised bill, which takes into account the criticism raised by the Constitutional Court. If the bill is adopted by Parliament, the President may submit the bill to the Constitutional Court for review as part of the enactment process.", "30. In a number of countries, euthanasia is criminalised, whereas assisted suicide is lawful in certain circumstances. Those countries are Sweden, Switzerland, Germany, Italy, Austria, Estonia and Finland. Assisted suicide is not criminalised in Sweden, but the Swedish Parliament recently adopted an amending Act making it a punishable act in certain circumstances to encourage or otherwise exert influence on another person to take his or her own life. In pursuance of this amending Act, any person who incites or otherwise exerts influence on another person to take his or her own life is punished for encouragement of suicide or negligent incitement to suicide. This could be to introduce a suicidal person to a razor blade or to give detailed instructions to a person about a particular method of committing suicide, for example by sending him or her a so-called suicide manual. The exchange of general information on suicide issues has not been criminalised. In Switzerland, assisted suicide is lawful and is offered by various organisations. However, assisted suicide is punished by imprisonment or a pecuniary penalty if the person assisting in the suicide is motivated by self-serving ends. In Germany, assisted suicide has been decriminalised as a consequence of a judgment of the Federal Constitutional Court. Similarly, assisted suicide has been decriminalised in Austria since 31 December 2021 as a consequence of a decision made by the Constitutional Court of Austria. In Italy, both euthanasia and assisted suicide are criminalised. However, the case law of the Italian Constitutional Court has opened up for an exception in connection with life-sustaining treatment of an incurable disease under certain specified conditions, including if the person is kept alive by the treatment of vital functions while suffering from an incurable disease that causes unbearable physical or mental pain and if a public national health authority has granted an approval following consultation of the local committee on ethics.", "31. Both euthanasia and assisted suicide are criminalised in Denmark, Norway, France, Iceland, Bulgaria and Turkey. However, in Denmark and Norway the distribution of general information on suicide methods is not criminalised. In France, the sanction for all kinds of propaganda for and/or marketing of products or methods that are recommended as means to commit suicide is imprisonment for a term of three years and a fine in the amount of EUR 45,000. In the United Kingdom, a bill on assisted dying was examined by the House of Lords on 22 October 2021, allowing adults diagnosed with a terminal illness, under certain circumstances, to submit an application for assisted dying to the High Court. General information on suicide, for example on a website, may lead to the imposition of a sentence.", "32. In Ireland, both euthanasia and assisted suicide are criminalised, but a bill has been introduced in the Lower House of the Irish Parliament to legalise voluntary euthanasia and assisted suicide for terminally ill persons. The bill is currently being considered by the Irish Committee on Legal Affairs, which has recommended that a specific committee be set up to draft the bill, considering the serious nature of the subject. The distribution of general information on suicide methods is not criminalised in Ireland.", "THE LAW", "33. The applicant complained that the Supreme Court’s judgment of 23 September 2019 breached his right to freedom of expression guaranteed by Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "Admissibility", "34. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "Merits", "1. Parties’ arguments", "35. The applicant submitted, inter alia, that the case concerned, on the one hand, the general right to receive information on assisted suicide, a matter in which the Government’s previous wide margin of appreciation should now be decreased due the growing legalisation of assisted suicide in Europe and the increasing shift in public opinion on this subject.", "36. On the other hand, the case concerned the applicant’s right to freedom of expression. In essence the applicant had been convicted for orally providing individuals with information, which he could legally provide in writing to the general public in his guide on suicide. He referred to the finding of the minority of the Supreme Court in respect of count 3). Such an interference with his right to freedom of expression, which did not relate to the actual subject of the expression or information but rather to how and to whom it was provided, could not be considered proportionate.", "37. The Government pointed out, inter alia, that encouragement of suicide and descriptions of methods to commit suicide fell outside the scope of section 240 of the Penal Code if it was not directed at specific persons. However, it was punishable under the said provision if the offender performed a specific act of assistance with the intent that an individual commit suicide. Thus, the guide to commit suicide, prepared by the applicant, was legal, whereas it was illegal for him to provide specific advice to particular persons on how they could commit suicide. In addition, under counts 1) and 2), the Supreme Court had unanimously found that, besides having given specific advice, the applicant had also performed specific acts, by prescribing or procuring, via others, the medication necessary for the relevant persons to commit suicide.", "38. In the Government’s view, the Court should take into account that the case concerned difficult ethical and moral issues on which there was no consensus among the member States. Moreover, the current state of the law expressed the legislature’s deliberate choice after regular review, most recently in 2018. Furthermore, the national courts had thoroughly reviewed the compatibility of the interference with the Convention, in accordance with the guidelines given by the Court in its case-law, for which reason States Parties should be allowed a wide margin of appreciation in determining whether assisted suicide should be allowed under national law.", "39. Ordo Iuris Institute for Legal Culture submitted observations on, among other things, assisted suicide laws in Europe and international professional standards regarding physician-assisted suicide.", "2. The Court’s assessment", "(a) Applicable principles", "40. The general principles regarding the right to freedom of expression within the meaning of Article 10 of the Convention are well-settled in the Court’s case-law, and summarised, for example, in Perinçek v. Switzerland [GC], no. 27510/08, §§ 131-136, 146-151, and 196-197, ECHR 2015 (extracts).", "41. Moreover, it is established case-law that the national authorities enjoy a wide margin of appreciation in matters of morals, particularly in an area such as the present which touches on matters of belief concerning the nature of human life (see, among others, Open Door and Dublin Well Woman v. Ireland, 29 October 1992, § 68, Series A no. 246 ‑ A).", "42. In addition, the quality of the parliamentary and judicial review of the necessity of a general measure, such as in the present case the criminalisation of assisted suicide, is of particular importance, including to the operation of the relevant margin of appreciation (see, among others, Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts); Correia de Matos v. Portugal [GC], no. 56402/12, §§ 117 and 129, 4 April 2018; and M.A. v. Denmark [GC], no. 6697/18, §§ 147-149, 9 July 2021).", "43. A further factor which has an impact on the scope of the margin of appreciation is the existence or not of common ground between the national laws of the contracting states (see, among others, Parrillo v. Italy [GC], no. 46470/11, §§ 176-179, ECHR 2015 and M.A. v. Denmark, cited above, §§ 151-160).", "44. Finally, the Court’s fundamentally subsidiary role in the Convention protection system has an impact on the scope of the margin of appreciation. The Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto, and in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the Court. Through their democratic legitimation, the national authorities are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions (see, inter alia, Lekić v. Slovenia [GC], no. 36480/07, § 108, 11 December 2018; see also Protocol No. 15, which entered into force on 1 August 2021).", "(b) Application of these principles to the present case", "(i) Prescribed by law and legitimate aim", "45. It is not in dispute between the parties that the applicant’s conviction constituted an interference, prescribed by law, namely section 240 of the Penal Code, which pursued the legitimate aims of the protection of health and morals and the rights of others. The Court notes that regarding counts 1) and 2) the applicant was convicted not only for having provided guidance, but also for having, by specific acts, procured medications for the persons concerned (see paragraphs 13 and 14 above). The Court therefore finds reason to doubt whether in respect of these counts there was indeed an interference with the applicant’s right to freedom of expression within the meaning of Article 10. Nevertheless, in the following it will proceed on the assumption that there was.", "(ii) “Necessity in a democratic society”", "46. Assisted suicide has been criminalised in the Danish legislation since 1930. The current wording of section 240 of the Penal Code is from 2004. For an act to be punishable under section 240, it is required that the offender must have performed a specific act of assistance with the intent that one or more specific persons commit suicide. Encouragement of suicide and descriptions of methods of committing suicide do not fall within the scope of section 240 if not directed at specific persons. Therefore, the presentation or dissemination of suicide recipes through Internet websites or the like cannot normally be punished under section 240 (see paragraph 20 above).", "47. In the present case, the Court is not required to determine whether the criminalisation of assisted suicide is justified. Under the Court’s well ‑ established case-law, in proceedings originating in an individual application under Article 34 of the Convention, its task is not to review domestic law in abstracto. Instead, it must determine whether the manner in which it was applied to, or affected, the applicant gave rise to a violation of the Convention. It can thus only review whether or not the application of section 240 of the Penal Code in the case of the applicant was “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention (see, inter alia, Perinçek v. Switzerland, cited above, § 226 ).", "48. The answer to the question whether such a necessity exists depends on the need to protect the “health and morals” and “the rights of others” in issue by way of criminal law measures.", "49. Turning first to its case-law, the Court found in Haas v. Switzerland (no. 31322/07, § 54, ECHR 2011) that Article 2 of the Convention, which creates for the authorities a duty to protect vulnerable persons, even against actions by which they endanger their own lives, also obliges the national authorities to prevent an individual from taking his or her own life if the decision has not been taken freely and with full understanding of what is involved.", "50. In Koch v. Germany (no. 497/09, § 51-52, 19 July 2012, and the references cited therein), the Court acknowledged that an individual’s right to decide in which way and at which time his or her life should end, provided that he or she was in a position freely to form his or her own will and to act accordingly, was one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention.", "51. Moreover, in Gross v. Switzerland (no. 67810/10, §§ 58-60, 14 May 2013) the Court considered that the applicant’s wish to be provided with a dose of sodium pentobarbital allowing her to end her life fell within the scope of her right to respect for her private life under Article 8 of the Convention. It will be recalled that the case was referred to the Grand Chamber, which on 30 September 2014 declared it inadmissible for abuse of the right of application within the meaning of Article 35 § 3 (a) of the Convention.", "52. There is no support in the Court’s case-law, however, for concluding that a right to assisted suicide exists under the Convention, including in the form of providing information about or assistance that goes beyond providing general information about suicide (compare, under Article 2, Pretty v. the United Kingdom, no. 2346/02, § 40, ECHR 2002 ‑ III). Accordingly, as the applicant was not prosecuted for providing general information about suicide, including the guide on suicide that had been made publicly available, but was prosecuted for having assisted suicide through specific acts, the Court finds that the present case is not about the applicant’s right to provide information that others under the Convention had a right to receive.", "53. Before the Supreme Court, the applicant submitted that he had only assisted A, B and C by providing guidance and information, which was already legally accessible on the internet, and which failed to reach the threshold under section 240 of the Penal Code. He relied specifically on Article 10 of the Convention.", "54. As regards counts 1) and 2) the Supreme Court found unanimously that the applicant had not only provided guidance, but had also, by specific acts, procured medications for the persons concerned, in the knowledge that it was intended for their suicide. Such acts were clearly covered by section 240 of the Penal Code, and implicitly, did not give rise to an issue under Article 10.", "55. As regards count 3) it was found established that the applicant, in emails exchanged with C, had advised her about suicide methods, including by confirming the choice of medications and by confirming that it was a good idea to combine them with a plastic bag and by writing: “If you are able to go through with it, you will be 100% certain. Remember in that case that it is necessary to put a rubber band around the neck.”", "56. On the basis of an interpretation of section 240, in the light notably of the preparatory works, the legislative review, including Report No. 1462/2005 by the Standing Committee on the Penal Code (see paragraph 20 above), and the Convention, the majority of the Supreme Court found the applicant guilty under the said provision in that he had assisted C in a specific and significant way in committing suicide, that his advice was not exempted from punishment because it was based on his lawful general guide on the website of “Physicians in Favour of Euthanasia”, that his specific advice was suited to a greater extent than the general guide to intensifying C’s desire to commit suicide, and that his conviction would not be in breach of Article 10 of the Convention. The applicant was given a suspended sentence of 60 days’ imprisonment. It was taken into account as an aggravating circumstance that to a certain extent the acts had been committed in a systematic manner and that the applicant had been charged on three counts, the last act being committed after he had been provisionally charged by the police for violation of section 240 of the Penal Code. It was considered a mitigating circumstance that the applicant was almost 78 years old.", "57. The Court sees no reason to call into question the Supreme Court’s conclusions. It notes that a crucial question was the distinction to be drawn between the legal general guide available on the internet and the specific information provided by the applicant to C. The majority found that the specific information provided by the applicant was “based” on the general guide (see paragraphs 6 and 15 above), and it does not appear that he added any information which did not follow from the general guide. However, the majority also found that the applicant’s specific advice was suited to a greater extent than the general guide to intensifying C’s desire to commit suicide. The Court notes in this respect that C in her first email of 17 July 2018 to the applicant had asked for his assistance, although she had already procured the necessary medication herself and was aware of the existence of the general guide on the internet. Moreover, the applicant and C exchanged at least nine emails in the period from 17 July to 8 August 2018, thus during a period of approximately three weeks. In these circumstances, the Court considers that the reasons relied on by the Supreme Court when finding that the act fell within the scope of section 240 of the Penal Code were relevant and sufficient.", "58. The Court also notes that the Supreme Court made a thorough judicial review of the applicable law in the light of the Convention, including the Court’s judgment in Open Door and Dublin Well Woman v. Ireland, cited above, about a restriction of an absolute nature on the provision of information to pregnant women concerning abortion facilities abroad, regardless of age or state of health or their reasons for seeking counselling on the termination of pregnancy. The interference concerned services which were lawful in other countries and which could be crucial to a woman’s health and well-being ( ibid., §§ 72-73 ). On that ground alone the Court found that it appeared overbroad and disproportionate (ibid., § 74). In addition, the counsellors neither advocated nor encouraged abortion, but confined themselves to an explanation of available options.", "In the present case, it was undisputed that the applicant could legally publish his guide “Medicines suited for suicide” on the internet and could encourage to suicide if not directed at specific persons. The charges concerned the applicant’s concrete assistance or advice to three specific persons, A, B and C, on how to commit suicide. The restriction in section 240 of the Penal Code was imposed in order to protect such persons’ health and well-being, by preventing other persons from assisting in their suicide. The case at hand thus differs significantly from Open Door and Dublin Well Woman v. Ireland.", "Having regard to the above, the Court considers that the quality of the judicial review of the disputed general measure and its application in the present case militates in favour of a wide margin of appreciation.", "59. The Court notes that a criminal conviction is a serious sanction, having regard to the existence of other means of intervention and rebuttal, particularly through civil remedies (see, for example, Perinçek v. Switzerland, cited above, § 273). In the circumstances of the present case, however, the Court does not find the conviction and the sentence excessive, bearing also in mind that the sentence was suspended.", "60. Another element, which speaks in favour of a wide margin of appreciation in the present case is the fact that the subject of assisted suicide concern matters of morals (see paragraph 41 above) and that the comparative law research (set out in paragraphs 26 to 32 above) enables the Court to conclude that the Member States of the Council of Europe are far from having reached a consensus on this issue (see paragraph 43 above; see also, for example, Haas v. Switzerland, cited above, § 55).", "61. In the light of all the above-mentioned considerations, the Court considers that the reasons relied upon by the domestic courts, and most recently the Supreme Court in its judgment of 23 September 2019, were both relevant and sufficient to establish that the interference complained of can be regarded as “necessary in a democratic society”, proportionate to the aims pursued, namely the protection of health and morals and the rights of others, and that the authorities of the respondent State acted within their margin of appreciation, having taken into account the criteria set out in the Court’s case ‑ law.", "62. There has accordingly been no violation of Article 10 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicants were born in 1977, 1954, 1948, 1947, 1948, 1973, 1948, 1966, 1935 and 1947 respectively, and live(d) in Plovdiv, Godech, Dobrich, Kazanlak, Plovdiv, Ruse, Samokov and Sofia respectively.", "8. The first applicant in application no. 47039/11 and all eight applicants in application no. 358/12 have or had various types of terminal cancer. The second applicant in application no. 47039/11 is the first applicant’s mother. Four of them succumbed to the illness shortly after lodging their applications (see paragraph 4 above).", "9. Having either tried a host of conventional treatments (including surgery, chemotherapy, radiotherapy and hormone therapy), or obtained a medical opinion that such forms of treatment would not work in their respective cases or were not available in Bulgaria, all of them approached a private clinic in Sofia, the Medical Centre for Integrative Medicine OOD ( Медицински център Интегративна Медицина ООД ), where they were told about an experimental anti-cancer product (MBVax Coley Fluid) which was being developed by a Canadian company, MBVax Bioscience Inc. According to information from that company, their product has not been authorised in any country, but has been allowed for “compassionate use” (for a definition of that term and comparable terms, see paragraphs 50, 56 and 57 below) in a number of countries (the Bahamas, China, Germany, Ireland, Israel, Mexico, Paraguay, South Africa, Switzerland, the United Kingdom, and the United States of America). In a letter of 9 January 2011 to the Bulgarian Ministry of Health, the company said that as part of its pre ‑ clinical development of the product it would be willing to provide the product free of charge to the Medical Centre for Integrative Medicine OOD, for use on cancer patients who could no longer benefit from conventional treatments, in return for data on the treatment’s adverse and beneficial effects on each patient. It appears that the Medical Centre for Integrative Medicine OOD has on a number of occasions in the past few years applied for permission to import and use the product, but to no avail.", "10. The parties were in dispute as to whether MBVax Coley Fluid had recently started undergoing clinical trials. The applicants said that, according to data extracted on 18 April 2012 from the website of the United States National Cancer Institute and a website maintained by the United States National Library of Medicine, Mixed Bacteria Vaccine (MBV) was undergoing a phase one clinical trial in Germany. On that basis, they argued that it complied with the requirements of Article 83 § 2 of Regulation (EC) no. 726/2004 (see paragraph 50 below). The Government disputed that assertion, and submitted that it was not acceptable to establish the existence of clinical trials in Germany through information from websites in the United States of America.", "11. The Government further submitted that MBVax Coley Fluid could not be described as a medicinal product within the meaning of the applicable European Union and domestic provisions. The applicants replied that the fact that it had not been authorised did not mean that it was not a medicinal product within the meaning of those provisions.", "12. According to the applicants, MBVax Coley Fluid has been used with some success on patients in clinics in Germany, Ireland, the United Kingdom, and the United States of America. In support of that assertion the applicants submitted a number of letters and electronic mail messages from medical practitioners.", "13. It appears that on 23 July 2011 one of the applicants, Mr Petrov, travelled to Germany, where he obtained the product from MBVax Bioscience Inc. free of charge and it was administered to him seven times. However, shortly afterwards he returned to Bulgaria because he could no longer afford to pay his living expenses in Germany or the fees of the health-care institution which administered the treatment.", "14. Each of the applicants, including Ms Staykova ‑ Petermann, who was acting on behalf of her sick son – applied to the authorities for permission to use MBVax Coley Fluid. In letters of 20 June, 15 July and 1 and 31 August 2011 the Director of the Medicines Executive Agency ( Изпълнителна агенция по лекарствата ), the authority in charge of supervising the quality, safety and efficacy of medicinal products, pointed out that MBVax Coley Fluid was an experimental product not yet authorised or undergoing clinical trials in any country, which meant that it could not be authorised for use in Bulgaria under Regulations no. 2 of 2001 (see paragraphs 25 and 26 below). He went on to say that Bulgarian law made no provision for the use of unauthorised medicines outside clinical trials, and that, unlike the situation obtaining in other European countries, in Bulgaria compassionate use of unauthorised products was not possible. Under the law of the European Union there was no obligation to have a harmonised approach in this area. In some of the letters the Director added, without going into detail, that the information the applicants had about MBVax Coley Fluid was incorrect.", "15. Some of the applicants appealed to the Minister of Health, who in a letter of 13 July 2011 fully agreed with the position expressed by the Medicines Executive Agency.", "16. Three of the applicants in application no. 358/12 applied to the Ombudsman of the Republic. By letters of 22 July and 4 and 14 September 2011 the Ombudsman also informed them that MBVax Coley Fluid had not been authorised in any country, which meant that the only way in which they could obtain access to it in Bulgaria was as part of a clinical trial.", "17. The applicants did not seek judicial review.", "18. On 27 October 2011 the Sofia Regional Health Directorate decided to strike the Medical Centre for Integrative Medicine OOD out of the register of health institutions, on the ground that it was engaging in activities in breach of established medical standards. The clinic sought judicial review of the decision in the Sofia Administrative Court. A hearing was held on 8 December 2011. A second hearing was listed for 24 February 2012, but was adjourned to 14 June, then to 5 October, and then to 12 October 2012. The case is still pending before the Sofia Administrative Court." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Constitution", "19. Article 52 of the Constitution of 1991 provides, in so far as relevant:", "“1. Citizens shall be entitled to medical insurance guaranteeing them affordable health care, and to free health care under the conditions and in the manner provided for by law ...", "3. The State shall protect the health of all citizens ...", "4. No one may be subjected to forcible medical treatment or sanitary measures, except in cases provided for by law.", "5. The State shall exercise control over all health care establishments and over the production of and trade in medicines, biologically active substances and medical equipment.”", "20. In a decision of 22 February 2007 (реш. № 2 от 22 февруари 2007 г. по к. д. № 12 от 2006 г., обн., ДВ, бр. 20 от 6 март 2007 г.) the Constitutional Court said that unlike classic fundamental rights, such as the rights to life, freedom and security, private life, freedom of thought and of religion, the rights under Article 52 § 1 of the Constitution were social rights. They could not be directly enforced by the courts, and required State action to put them into effect. For that reason, the Constitution specified that health care was to be carried out in a manner provided for by law.", "B. The Medicinal Products in Human Medicine Act 2007 and related regulations", "21. Medicinal products in human (as opposed to veterinary) medicine are regulated by the Medicinal Products in Human Medicine Act 2007 ( Закон за лекарствените продукти в хуманната медицина ). Section 3(1) of that Act, which echoes Article 1 § 2 of Directive 2001/83/EC (see paragraph 44 below), defines a “medicinal product in human medicine” as (a) any substance or combination of substances presented as having properties for treating or preventing disease in human beings, or (b) any substance or combination of substances which may be used in or administered to human beings, with a view either to restoring, correcting or modifying physiological functions by exerting a pharmacological, immunological or metabolic action, or to making a medical diagnosis. Section 3(2), which echoes Article 1 § 3 of the Directive, in turn defines “substance” as any matter whose origin may be human (human blood, human blood products, and so on), animal (microorganisms, animal organs, extracts, secretions, toxins, blood products, and so on), vegetable (microorganisms, plants, parts of plants, vegetable extracts, secretions, and so on), chemical (elements, naturally occurring chemical materials and chemical products obtained by chemical change or synthesis, and so on).", "22. Section 7(1) of the Act lays down the general rule that only medicinal products which have been authorised, either in Bulgaria or under the European Union centralised authorisation procedure under Regulation (EC) no. 726/2004 (see paragraph 48 below), may be produced, imported, traded in, advertised, or used for medical treatment, prophylaxis or diagnostics.", "23. The following sections set out certain exceptions to that rule. Section 8 provides that no authorisation is required in respect of, in particular, (a) medicinal products prepared in a pharmacy in accordance with a medical prescription for an individual patient (the magistral formula); (b) medicinal products prepared in a pharmacy in accordance with the prescriptions of a pharmacopoeia (the officinal formula); and (c) medicinal products for “high ‑ technology therapy” prepared for an individual patient in accordance with the individualised specifications of a medical doctor and for use in a health-care institution under the doctor’s direct personal responsibility. Section 10(1) empowers the Minister of Health to allow, under certain conditions, treatment with an unauthorised medicinal product in the event of an epidemic or of a chemical or nuclear contamination, if there is no suitable authorised medicinal product. Section 11(1) empowers the Minister to allow, under certain conditions, the use of a product which has not been authorised in Bulgaria but has been authorised in another Member State of the European Union.", "24. Section 9(1) provides that a patient may be treated with a medicinal product which has not been authorised if a hospital makes a request to that effect. The method and criteria for doing so are to be laid down in regulations by the Minister of Health.", "25. The regulations governing that issue at the time when the applicants made their requests to be allowed to use MBVax Coley Fluid were Regulations no. 2 of 10 January 2001 ( Наредба № 2 от 10 януари 2001 г. за условията и реда за лечение с неразрешени за употреба в Република България лекарствени продукти ). They superseded Regulations no. 18 of 28 June 1995 ( Наредба № 18 от 28 юни 1995 г. за условията и реда за лечение с нерегистрирани лекарствени средства ). Both of those regulations had been issued under section 35(3) of the Medicines and Pharmacies in Human Medicine Act 1995 ( Закон за лекарствата и аптеките в хуманната медицина ), superseded by the 2007 Act, which provided that medicinal products needed for the treatment of diseases having specific symptoms, when treatment with authorised medicinal products had proved fruitless, were to be exempted from authorisation under criteria and by methods laid down by the Minister of Health.", "26. Regulation 2 of Regulations no. 2 provided that medicinal products which had not been authorised in the country could be prescribed if they had been authorised in other countries and were intended for the treatment of rare diseases or diseases having specific symptoms, when treatment with authorised medicinal products had proved fruitless.", "27. Similar requirements had been laid down in Regulation 1 of Regulations no. 18. Under that provision, medicinal products not registered in Bulgaria could be used only if registered in other countries and if the disease that they were intended to treat could either not be treated with products registered in Bulgaria or such treatment had proved fruitless.", "28. The procedure under Regulations no. 2 was as follows. A panel of three medical doctors appointed by the head of a hospital (one of the doctors being a specialist in the treatment of the disease in issue) was to prescribe the unauthorised product (Regulation 3(1) and 3(2)). The prescription could not cover a period of more than three months (Regulation 3(4)). After that the prescription was to be approved by the head of the hospital (Regulation 3(3)) and sent to the Medicines Executive Agency, along with a declaration by the patient (or his or her parent or guardian, as the case might be) that he or she agreed to be treated with the unauthorised product (Regulation 4(2)). The Medicines Executive Agency had ten working days to decide whether to grant permission. If the relevant requirements had not been met, the Agency would issue a negative decision, which could be appealed against within seven days to the Minister of Health, who had seven days to decide the appeal (regulation 5(1)).", "29. If the need for an unauthorised life ‑ saving product arose in a health-care institution other than a hospital, the head of that institution could draw up a document specifying the product and the required quantity and, having obtained the assent of the Medicines Executive Agency, apply for permission to the Minister of Health. The Minister could then make a decision specifying the product, the quantity and its recipients (Regulation 8(1)).", "30. On 6 December 2011 Regulations no. 2 were superseded by Regulations no. 10 of 17 November 2011 ( Наредба № 10 от 17 ноември 2011 г. за условията и реда за лечение с неразрешени за употреба в Република България лекарствени продукти, както и за условията и реда за включване, промени, изключване и доставка на лекарствени продукти от списъка по чл. 266а, ал. 2 от Закона за лекарствените продукти в хуманната медицина ).", "31. Regulation 1(2) provides that only medicinal products which can be prescribed by a doctor in another country can be authorised for use under the Regulations. Regulation 2(1) provides that medicinal products intended for use by an individual patient may be prescribed if they are authorised in other countries and treatment with medicinal products authorised in Bulgaria is impossible or has failed. Regulation 3(1) provides that hospitals may also obtain unauthorised medicinal products if those have been made available under “international and national programmes” or by an international organisation which is the only entity in a position to procure those products.", "32. The procedure under Regulations no. 10 is as follows. A panel of three medical doctors appointed by the head of the hospital (one of the doctors being a specialist in the treatment of the disease in issue) must prescribe the unauthorised product (regulations 4, 5(1) and 6(1)). The prescription must be accompanied by the written informed consent of the patient (or his or her parent or guardian, as the case may be) (Regulations 5(2) and 6(4)), and cannot cover a period of more than three months (Regulations 5(3) and 6(2)). The prescription must then be approved by the head of the hospital (Regulation 7(1)). After that the Medicines Executive Agency must either grant permission or issue a reasoned refusal (Regulation 8(1)). It must issue a refusal if the form of the prescription or the medicinal products at issue do not meet the requirements of the Regulations (Regulation 8(2)). Refusal by the Agency is subject to appeal and judicial review (Regulation 8(3)).", "33. On 21 July 2011 Parliament added a new section, 266a, to the 2007 Act. It came into force on 5 August 2011 and provides, in subsection 1, that where it is not possible to treat a disease with medicinal products available in the country, an individual patient may be treated with a product which has been authorised in another member State of the European Union and under the Act, but is not on the market in Bulgaria. The Minister of Health must keep a list of such products and update it annually (subsection 2). The explanatory notes to the amending Bill referred to the need to allow Bulgarian patients access to authorised medicines which are not available on the Bulgarian market but which are available in other member States of the European Union.", "34. There is no reported case ‑ law under any of the three successive regulations (Regulations no. 18, Regulations no. 2 and Regulations no. 10).", "C. The Code of Administrative Procedure 2006", "35. Under the Code of Administrative Procedure 2006, individual administrative decisions may be challenged before a court by those affected by them, on grounds of unlawfulness (Articles 145 § 1 and 147 § 1). There is no general requirement to first exhaust administrative remedies (Article 148).", "36. Statutory instruments, such as regulations, may also be challenged before the Supreme Administrative Court (Articles 185 § 1 and 191 § 1). Any individual or organisation whose rights, freedoms or legal interests have been or could be affected by such an instrument may do so (Article 186 § 1). The court’s decision has erga omnes effect (Article 193 § 2). If a court strikes down a statutory instrument, it is deemed repealed from the date on which the court’s decision becomes final (Article 195 § 1).", "D. Case ‑ law provided by the Government", "37. In a decision of 11 December 2008 (реш. № 13627 от 11 декември 2008 г. по адм. д. № 11799/2008 г., ВАС, петчл. с.) the Supreme Administrative Court struck down regulations which required telephony and internet service providers to give the Ministry of Internal Affairs “passive” technical access to the communications data they were storing. The court held that, in not laying down any conditions or procedures for the grant of such access, the regulations enabled disproportionate interference with the rights protected under Article 32 (private life) and Article 34 (correspondence and communications) of the 1991 Constitution and under Article 8 of the Convention, whereas it was obligatory for any such interference to be made subject to appropriate safeguards against abuse. The court went on to say that the regulations ran counter to various provisions of Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks, and amending Directive 2002/58/EC.", "38. In decisions of 25 March and 21 April 2011 (реш. № 384 от 25 март 2011 г. по адм. д. № 1739/2009 г., БАС; реш. № 701 от 21 април 2011 г. по адм. д. № 660/2011 г., ПАС) the Burgas and Plovdiv administrative courts set aside international travel bans imposed on account of unpaid judicially established debts. In doing so the courts held that the provisions of Bulgarian law under which those bans had been ordered ran counter to Article 27 of Directive 2004/38/EC on the right of citizens of the European Union and their family members to move and reside freely within the territories of the member States. Just before that, on 22 March 2011, the Supreme Administrative Court had held, in a binding interpretive decision (тълк. р. № 2 от 22 март 2011 г. по т. д. № 6/2010 г., ВАС, ОСК), that such bans should be set aside if in breach of the Directive.", "39. In a decision of 17 May 2010 (реш. от 17 май 2010 г. по адм. д. № 206/2010 г., МАС, І с.) the Montana Administrative Court set aside an order for the removal of an alien who had come to Bulgaria at a very young age and had lived in the country with his family for a number of years. The court held that the order, which had not taken into account the alien’s family situation and level of integration in the country, and corresponding lack of ties with the country to which he was to be removed, had been disproportionate. To reach that conclusion the court had relied not only on the relevant provisions of Bulgarian law, but also on Article 8 of the Convention and on Article 78 § 1 of the Treaty on the Functioning of the European Union and Articles 16, 20 and 21 of Directive 2003/109/EC, concerning the status of third ‑ country nationals who are long ‑ term residents.", "40. In decisions of 29 June 2010 and 9 March 2012 (опр. № 14 от 29 юни 2010 г. по ч. к. а н. д. № 162/2010 г., ХАС, ІІ к. с.; опр. № 10 от 9 март 2012 г. по к. н. а. х. д. № 117/2012 г., КАС) the Haskovo and Kyustendil administrative courts quashed the lower courts’ decisions to discontinue proceedings for judicial review of fines imposed by the authorities in respect of administrative offences (which had been excluded from judicial review by statute). The courts relied on Article 6 § 1 of the Convention and the Court’s judgments in the cases of Öztürk v. Germany (21 February 1984, Series A no. 73), and Lauko v. Slovakia (2 September 1998, Reports of Judgments and Decisions 1998 ‑ VI).", "E. The rights of patients", "41. A patient – defined as any person who has asked for or who is being given medical treatment (section 84(1) of the Health Act 2004) – has the right to, inter alia, (a) respect for his or her civil, political, economic, social, cultural and religious rights; (b) clear and accessible information on his or her state of health and methods of treatment, if any; (c) security and safety of the diagnostic and treatment procedures used for his or her treatment; and (d) access to modern methods of treatment (section 86(1)(1), (1)(8), (1)(10) and (1)(11) of the same Act). Section 87(1) of the Act lays down the general rule that medical procedures may be carried out only with the patient’s informed consent. In order to obtain such consent, the medical doctor responsible for the patient’s treatment has to inform the patient of (a) the diagnosis and character of the disease; (b) the aims and the nature of the proposed treatment, reasonable alternatives which may be available, the expected results and the prognosis; (c) the potential risks of the diagnostic and proposed treatment methods, including side effects and adverse reactions, pain or other difficulties; and (d) the likelihood of positive effects, as well as the risks to health of other methods of treatment or a refusal to submit to treatment (section 88(1)). All this information must be given in an appropriate volume and form, so as to ensure freedom of choice of treatment (section 88(2)). In the event of surgical intervention, general anaesthesia or other diagnostic or treatment methods which entail a heightened level of risk to life or health, this information, as well as the patient’s informed consent, must be in writing (section 89(1)).", "F. Regulation of the medical profession", "42. The Medical Institutions Act 1999 governs, inter alia, the registration and licensing of medical institutions. Under section 39(1), institutions for non ‑ hospital care and hospices are subject to registration, which has to be carried out by the health inspectorate with territorial jurisdiction (section 40(1)). Under section 46(1), hospitals, complex oncological centres, and some other institutions which are not relevant to the present case, are subject to licensing. These licences are issued by the Minister of Health (section 46(2)). Medical institutions can carry out their activities only if they have been registered or licensed, as the case may be (section 3(3)). Their medical activities are subject to monitoring by the authorities (section 4(3)).", "43. Practising medical professionals must have an appropriate degree (section 183(1) and (2) of the Health Act 2004), and must be registered members of a professional association (section 183(3)).", "III. RELEVANT EUROPEAN UNION LAW", "44. In the European Union, a medicinal product may as a rule be placed on the market only when authorised, either via the “centralised authorisation procedure” or under national procedures (there are detailed rules as to which products must or may go through the centralised procedure). The relevant provision, Article 6(1) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended, provides as follows:", "“No medicinal product may be placed on the market of a Member State unless a marketing authorisation has been issued by the competent authorities of that Member State in accordance with this Directive or an authorisation has been granted in accordance with Regulation (EC) No 726/2004, read in conjunction with Regulation (EC) No 1901/2006 of the European Parliament and of the Council of 12 December 2006 on medicinal products for paediatric use and Regulation (EC) No 1394/2007.”", "45. There are, however, exceptions to this rule, such as the possibility of obtaining an unauthorised medicinal product via “individual patient use”, “compassionate use” or “off ‑ label use”. Article 5(1) of the above ‑ mentioned Directive, which reproduced wording first introduced in 1989 by the now-repealed Directive 89/341/EEC, governs “individual patient use”. It reads as follows:", "“A Member State may, in accordance with legislation in force and to fulfil special needs, exclude from the provisions of this Directive medicinal products supplied in response to a bona fide unsolicited order, formulated in accordance with the specifications of an authorised health ‑ care professional and for use by an individual patient under his direct personal responsibility.”", "46. The case of European Commission v. the Republic of Poland (Court of Justice of the European Union, C ‑ 185/10) concerned the interpretation of those provisions. Poland argued that its domestic law complied with the derogation envisaged by Article 5(1) of Directive 2001/83/EC. In a judgment of 29 March 2012, the Court of Justice held that by allowing the importation and placing on the market of unauthorised medicinal products which were cheaper than, and similar to, products already authorised in Poland, the State had failed to fulfil its obligations under Article 6 of the Directive. In relation to the construction to be put on the derogation provided for under Article 5(1) of the Directive, it held as follows:", "“30 As is apparent from the wording of that provision, implementation of the derogation for which it provides is conditional on fulfilment of a set of cumulative conditions.", "31 In order to interpret that provision, it must be taken into account that, generally, provisions which are in the nature of exceptions to a principle must, according to settled case ‑ law, be interpreted strictly (see in particular, to this effect, Case C ‑ 3/09 Erotic Center [2010] ECR I ‑ 2361, paragraph 15 and the case ‑ law cited).", "32 More specifically, as regards the derogation referred to in Article 5(1) of Directive 2001/83, the Court has already pointed out that the possibility of importing non ‑ approved medicinal products, provided for under national legislation implementing the power laid down in that provision, must remain exceptional in order to preserve the practical effect of the marketing authorisation procedure (see, to this effect, Case C ‑ 143/06 Ludwigs ‑ Apotheke [2007] ECR I ‑ 9623, paragraphs 33 and 35).", "33 As the Advocate General stated in point 34 of his Opinion, the power, which arises from Article 5(1) of Directive 2001/83, to exclude the application of the directive’s provisions can be exercised only if that is necessary, taking account of the specific needs of patients. A contrary interpretation would conflict with the aim of protecting public health, which is achieved through the harmonisation of provisions relating to medicinal products, particularly those relating to the marketing authorisation.", "34. The concept of ‘special needs’, referred to in Article 5(1) of that directive, applies only to individual situations justified by medical considerations and presupposes that the medicinal product is necessary to meet the needs of the patient.", "35 Also, the requirement that medicinal products are supplied in response to a ‘bona fide unsolicited order’ means that the medicinal product must have been prescribed by the doctor as a result of an actual examination of his patients and on the basis of purely therapeutic considerations.", "36. It is apparent from the conditions as a whole set out in Article 5(1) of Directive 2001/83, read in the light of the fundamental objectives of that directive, and in particular the objective seeking to safeguard public health, that the derogation provided for in that provision can only concern situations in which the doctor considers that the state of health of his individual patients requires that a medicinal product be administered for which there is no authorised equivalent on the national market or which is unavailable on that market.”", "47. Separately, Article 126a of the Directive permits a member State to allow a medicinal product authorised in another member State to be placed on its market, under certain conditions. Paragraph 1 of that Article reads:", "“In the absence of a marketing authorisation or of a pending application for a medicinal product authorised in another Member State in accordance with this Directive, a Member State may for justified public health reasons authorise the placing on the market of the said medicinal product.”", "Further conditions are laid down in paragraphs 2 and 3.", "48. A further exception to the general prohibition laid down in Article 6(1) of Directive 2001/83/EC is contained in Article 83 of Regulation (EC) no. 726/2004 of the European Parliament and of the Council of 31 March 2004, laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency.", "49. Recital 33 of the Regulation says, in so far as relevant:", "“In order to meet, in particular, the legitimate expectations of patients and to take account of the increasingly rapid progress of science and therapies ... [i]n the field of medicinal products for human use, a common approach should also be followed, whenever possible, regarding the criteria and conditions for the compassionate use of new medicinal products under Member States’ legislation.”", "50. Article 83 of the Regulation provides:", "“1. By way of exemption from Article 6 of Directive 2001/83/EC Member States may make a medicinal product for human use belonging to the categories referred to in Article 3(1) and (2) of this Regulation [medicinal products to be authorised either mandatorily or optionally via the centralised authorisation procedure, listed in an annex to the Regulation] available for compassionate use.", "2. For the purposes of this Article, ‘compassionate use’ shall mean making a medicinal product belonging to the categories referred to in Article 3(1) and (2) available for compassionate reasons to a group of patients with a chronically or seriously debilitating disease or whose disease is considered to be life ‑ threatening, and who can not be treated satisfactorily by an authorised medicinal product. The medicinal product concerned must either be the subject of an application for a marketing authorisation in accordance with Article 6 of this Regulation or must be undergoing clinical trials.", "3. When a Member State makes use of the possibility provided for in paragraph 1 it shall notify the Agency.", "4. When compassionate use is envisaged, the Committee for Medicinal Products for Human Use, after consulting the manufacturer or the applicant, may adopt opinions on the conditions for use, the conditions for distribution and the patients targeted. The opinions shall be updated on a regular basis.", "5. Member States shall take account of any available opinions.", "6. The Agency shall keep an up ‑ to ‑ date list of the opinions adopted in accordance with paragraph 4, which shall be published on its website. Article 24(1) and Article 25 shall apply mutatis mutandis.", "7. The opinions referred to in paragraph 4 shall not affect the civil or criminal liability of the manufacturer or of the applicant for marketing authorisation.", "8. Where a compassionate use programme has been set up, the applicant shall ensure that patients taking part also have access to the new medicinal product during the period between authorisation and placing on the market.", "9. This Article shall be without prejudice to Directive 2001/20/EC [the Clinical Trials Directive] and to Article 5 of Directive 2001/83/EC.”", "51. In July 2007 the European Medicines Agency adopted a Guideline on compassionate use of medicinal products pursuant to the said Article 83 (EMEA/27170/2006). It states that the implementation of compassionate use programmes remains within the competence of a member State, that Article 83 is complementary to national legislations, and that the existence of Community authorisation for a medicinal product is without prejudice to any national legislation relating to compassionate use. The guideline goes on to specify that the objectives of Article 83 are threefold: (a) to facilitate and improve access for patients in the European Union to compassionate-use programmes; (b) to favour a common approach regarding the conditions of use, the conditions for distribution and the patients at whom the compassionate use of unauthorised new medicinal products is directed; and (c) to increase transparency between member States in terms of availability of treatments. It also makes it clear that Article 83 is not applicable to products which are not eligible for the centralised authorisation procedure, nor to compassionate use on a named ‑ patient basis, as envisaged in Article 5 of Directive 2001/83/EC (see paragraph 45 above).", "52. The European Medicines Agency has so far given two opinions under Article 83 paragraph 4 of the Regulation. The first, given on 20 January 2010 in respect of Finland, concerned the product IV Tamiflu. The second, given on 18 February 2010 in respect of Sweden, concerned the product IV Zanamivir.", "53. A guideline drawn up by the European Commission pursuant to Article 106 of Directive 2001/83/EC and Article 24 of Regulation (EEC) no. 2309/93, and entitled ‘Volume 9A – Guidelines on Pharmacovigilance for Medicinal Products for Human Use ’, states the following:", "“ 5.7. Reporting from Compassionate/Named ‑ patient use", "Compassionate or named ‑ patient use of a medicine should be strictly controlled by the company responsible for providing the medicine and should ideally be the subject of a protocol.", "Such a protocol should ensure that the Patient is registered and adequately informed about the nature of the medicine and that both the prescriber and the Patient are provided with the available information on the properties of the medicine with the aim of maximising the likelihood of safe use. The protocol should encourage the prescriber to report any adverse reactions to the company, and to the Competent Authority, where required nationally.", "Companies should continuously monitor the risk ‑ benefit balance of medicines used on compassionate or named ‑ patient basis (subject to protocol or not) and follow the requirements for reporting to the appropriate Competent Authorities. As a minimum, the requirements laid down in Chapter I.4, Section 1 [Requirements for Expedited Reporting of Individual Case Safety Reports] apply.", "For inclusion of experience from compassionate or named ‑ patient use in Periodic Safety Update Reports, see Chapter I.6 [Requirements for Periodic Safety Update Reports].”", "III. RELEVANT COMPARATIVE MATERIAL", "A. Rules governing access to unauthorised medicinal products", "1. In some Contracting States", "54. In November 2010 the European Clinical Research Infrastructures Network published a survey of “compassionate use” programmes in ten European countries: Austria, Denmark, France, Germany, Ireland, Italy, Spain, Sweden, Switzerland and the United Kingdom (‘ Whitfield et al : Compassionate use of interventions: results of a European Clinical Research Infrastructures Network (ECRIN) survey of ten European countries. Trials 2010 11:104.’). It found that with one exception (Hungary) the laws of all the countries surveyed made provision for compassionate use/expanded access programmes. However, it also showed that those programmes had more differences than similarities. Some countries were without formal regulatory systems, and, for those who had adopted rules, they varied in content and comprehensiveness. For instance, some countries allowed “compassionate use” solely on a “named/individual patient” basis. The contents and requirements of the application for permission also varied. The survey called for European Union legislation to be more explicit with regard to regulatory requirements, restrictions and responsibilities in that area.", "55. On the basis of more recent material available to the Court in respect of twenty ‑ nine Contracting States, it appears that twenty ‑ two States (Austria, the Czech Republic, Croatia, Estonia, France, Finland, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Malta, the Netherlands, Poland, Romania, Serbia, Slovenia, Spain, Turkey and the United Kingdom) have in place rules, often adopted quite recently, allowing access to unauthorised medicinal products outside clinical trials for certain patients, notably for those who are terminally ill. The matter appears to be regulated in both primary and delegated legislation. In addition, in two States (Sweden and Russia) access to such products appears to be possible despite the absence of specific rules. Five States (Albania, Cyprus, Moldova, Montenegro and Ukraine) appear not to have in place rules allowing access to unauthorised medicinal products outside clinical trials. However, in two of those (Albania and Ukraine) domestic law appears to contain somewhat unclear provisions, which could be interpreted as allowing access. At the same time, there is a variety of practices among States as regards the type of access provided and the procedure to be followed. For instance, it appears that in four States (Croatia, Lithuania, Poland and Romania), access to unauthorised medicinal products is possible only if those products have been authorised in another jurisdiction. Seven States appear to allow access only for individual patients, and fifteen States allow access for both individual patients and groups (or cohorts). The procedures for individuals and groups tend to vary, with the conditions attaching to group access being more stringent.", "2. In other States", "56. In the United States of America, regulations were issued in May 1987 laying down conditions under which promising new drugs that had not yet been licensed could be made available to persons with serious and life-threatening illnesses for whom no comparable or satisfactory alternative drug or treatment was available. Those regulations were revised and expanded in 2009. They are currently contained in the Code of Federal Regulations, Title 21, Part 312, Subpart I (Expanded Access to Investigational Drugs for Treatment Use), §§ 312.300 ‑ 320, and make provision for an “expanded access” programme, under which the Food and Drug Administration (“the FDA”) may, under certain conditions, authorise the use of an “investigational new drug” in respect of patients suffering from “a serious or immediately life ‑ threatening disease or condition, [when] there is no comparable or satisfactory alternative therapy to diagnose, monitor, or treat the disease or condition” (21 CFR 312.305(a)(1)). The general criteria governing the FDA’s decision are whether “[t]he potential patient benefit justifies the potential risks of the treatment use and those potential risks are not unreasonable in the context of the disease or condition to be treated” and whether “[p]roviding the investigational drug for the requested use will not interfere with the initiation, conduct, or completion of clinical investigations that could support marketing approval of the expanded access use or otherwise compromise the potential development of the expanded access use” (21 CFR 312.305(a)(2) and (3)). The regulations contain separate provisions for individual patients, including for emergency use (21 CFR 312.310), intermediate ‑ size patient populations (21 CFR 312.315), and widespread treatment use (21 CFR 312.320).", "57. In Canada, sections C.08.010 and C.08.011 of the Food and Drug Regulations make provision for a “special access programme” allowing medical practitioners to request access to drugs that are unavailable for sale in Canada for the treatment of patients with serious or life ‑ threatening conditions on a compassionate or emergency basis when conventional treatments have failed, are unsuitable, or are unavailable.", "58. In Australia, the Therapeutic Goods Administration of the Department of Health and Ageing runs a “special access scheme”, which allows, under certain conditions, the importation or supply of an unlicensed medicine for a single patient, on a case by case basis (section 18 of the Therapeutic Goods Act 1989 and Regulation 12A of the Therapeutic Goods Regulations 1990).", "B. Relevant case ‑ law", "1. In the United States of America", "59. In the case of United States v. Rutherford, 442 U.S. 544 (1979), the United States Supreme Court unanimously dismissed a request by terminally ill cancer patients to enjoin the authorities from interfering with the distribution of an unlicensed drug. The court held that the statutory scheme governing drug licensing did not contain an implicit exemption for drugs intended for use by the terminally ill. In its view, the safety and effectiveness standards laid down in the legislation applied equally to such drugs, because the legislature could be regarded as intending to protect terminal patients from ineffectual or unsafe drugs. For such patients, as for anyone else, a drug was unsafe if its potential to cause death or physical injury was not offset by the possibility of therapeutic benefit. In relation to terminally ill people, unlicensed drugs carried a further risk, namely that the individuals concerned might eschew conventional therapy in favour of a drug with no demonstrable curative properties, with potentially irreversible consequences. In that connection the court noted, on the basis of expert evidence presented to it, that with diseases such as cancer it was often impossible to identify a patient as terminally ill other than in retrospect. It went on to say that acceptance of the proposition that statutory safety and efficacy standards have no relevance for terminal patients would be tantamount to denying the authorities’ power to regulate any drugs, however toxic or ineffective, for such individuals, which would allow abusive marketing of many purportedly simple and painless cures. Lastly, the court observed that its ruling did not exclude all resort to experimental cancer drugs by patients for whom conventional therapy was inefficacious, because the statutory scheme exempted from pre-marketing approval drugs intended solely for investigative use if they satisfied certain pre-clinical testing and other criteria.", "60. In the more recent case of Raich v. Gonzales, in a decision of 14 March 2007 (500 F.3d 850) the United States Court of Appeals for the Ninth Circuit held, inter alia, that, as things stood, there was no right under the due process clause of the United States Constitution to use medical marijuana on a physician’s advice, to preserve bodily integrity, avoid intolerable pain, and preserve life, even when all other prescribed medications and remedies had failed.", "61. In the case of Abigail Alliance for Better Access to Developmental Drugs et al. v. von Eschenbach et al., in a decision of 2 May 2006 (445 F.3d 470) a three ‑ member panel of the United States Court of Appeals for the District of Columbia Circuit held, by two votes to one, that under the due process clause of the United States Constitution terminally ill patients had the right to decide whether to take un unlicensed drug that was in Phase 2 or Phase 3 clinical trials and that the producer was willing to make available. The court found that that right was deeply rooted in the traditional doctrines of self ‑ defence and interference with rescue, and that federal regulation of the effectiveness of drugs was too recent and haphazard “to establish that the government has acquired title to [that] right by adverse possession”. The panel went on to say that that right was “implicit in the concept of ordered liberty”.", "62. On an application by the FDA, the same court reheard the case en banc, and in a decision of 7 August 2007 (495 F.3d 695) held, by eight votes to two, that federal regulation of drugs was “consistent with [the] historical tradition of prohibiting the sale of unsafe drugs”. The “arguably limited” history of efficacy regulation prior to 1962, when such regulation in the United States took its current shape, did not establish a fundamental right, because the legislature and the executive had “continually responded to new risks presented by an evolving technology” and because the legislature had a “well ‑ established power to regulate in response to scientific, mathematical, and medical advances”. The court went on to say that self ‑ defence, the tort of interference with rescue, and the United States Supreme Court’s “life or health of the mother” abortion cases provided no support for a right to seek investigational drugs, because those doctrines protected only “necessary” life ‑ saving measures, whereas the claimants sought “access to drugs that [were] experimental and [had] not been shown to be safe, let alone effective at (or ‘necessary’ for) prolonging life”.", "63. On 14 January 2008 the United States Supreme Court denied a petition for a writ of certiorari (552 U.S. 1159).", "64. In the case of Abney et al. v. Amgen, Inc., 443 F.3d 540, on 29 March 2006 the United States Court of Appeals for the Sixth Circuit upheld a lower court’s decision not to issue an injunction sought by the claimants, who were individuals involved in a clinical drug trial sponsored by the defendant, a drug manufacturer, to require the defendant to continue providing them with the drug, even though the clinical trial had come to an end.", "2. In Canada", "65. In the case of Delisle v. Canada (Attorney General), 2006 FC 933, the Federal Court of Canada had to deal with applications for judicial review of decisions taken by the Canadian federal health authorities under the above ‑ mentioned special access programme (see paragraph 57 above). The court held that in deciding to restrict access to a drug previously available under the programme the authorities had failed to strike a proper balance, because they had not taken due account of humanitarian or compassionate concerns. It referred the matter back to the authorities with instructions to weigh the “valid objectives of public policy against the humanitarian factor”. The judgment was not appealed against, and in 2008 the case was settled, with the authorities agreeing to follow the court’s recommendations.", "3. In the United Kingdom", "66. In the case of B (a minor), R. (on the application of) v. Cambridge Health Authority [1995] EWCA Civ 43 (10 March 1995), the Court of Appeal held that the courts could not disturb a properly reasoned decision by the competent health authorities not to fund a round of experimental treatment for a terminally ill child. The Master of the Rolls, as he then was, Sir Thomas Bingham, made two general comments. He firstly pointed out that the case involved the life of a young patient, which was a fact which had to dominate all consideration of all aspects of the case, because British society was one in which a very high value was put on human life and no decision affecting human life could be regarded with other than the greatest seriousness. He secondly observed that the courts were not arbiters as to the merits of cases of that kind, because if they expressed opinions as to the likelihood of the effectiveness of medical treatment, or as to the merits of medical judgment, they would be straying far from their domain. He went on to say that difficult and agonising judgments had to be made as to how a limited budget was best allocated to the maximum advantage of the maximum number of patients. That was not a judgment which a court could make.", "67. In the case of Simms v Simms and an NHS Trust [2002] EWHC 2734 (Fam) (11 December 2002), the parents of two teenagers suffering from variant Creutzfeldt ‑ Jakob disease sought judicial declarations that their children could receive an experimental treatment which research on mice had shown could possibly inhibit the advance of their terminal condition. The High Court of Justice (Family Division) allowed the applications, holding, among other things, that the lack of an alternative treatment for the incurable disease meant that it was reasonable to use an experimental treatment that presented no significant risk to the patient. The President of the Family Division, Dame Elizabeth Butler ‑ Sloss, observed that the treatment was an untried one, and that until then there had been no validation of experimental work done abroad. However, she went on to say that if one waited for full certainty in experimental treatments, no innovative work such as the use of penicillin or heart transplant surgery would ever have been attempted. Referring to, inter alia, Articles 2 and 8 of the Convention and “a very strong presumption in favour of a course of action which will prolong life”, and having regard to the patients’ prospects with and without treatment and the fact that no alternative treatment was available, she concluded that it was in their best interest that the treatment should be carried out. In reaching that conclusion, she also considered the wishes and feelings of the families, finding that their advocacy of treatment “should carry considerable weight”.", "THE LAW", "I. PRELIMINARY ISSUE", "68. The Government requested that the applications be partly struck out of the list of cases in accordance with Article 37 § 1 (c) of the Convention, challenging the right of the heirs of the four applicants who had died in the course of the proceedings (Mr Hristozov, Mr Petrov, Ms Pencheva and Mr Behar, see paragraph 4 above) to pursue the applications in their stead. In their view, those heirs could not claim to be indirect victims, and did not have a valid interest in obtaining a ruling by the Court, because the alleged breaches of Articles 2, 3 and 8 of the Convention did not affect them, for two reasons. First, the authorities’ refusal to allow the applicants access to the unauthorised medicinal product that they wished to have administered did not affect other individuals, such as their heirs. Secondly, the rights invoked by the applicants were deeply personal in nature. Moreover, it was not the Court’s task to determine in the abstract whether the relevant domestic law provisions were in line with the Convention.", "69. The applicants did not comment on that point.", "70. Article 37 § 1 of the Convention provides, in so far as relevant:", "“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ...", "(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.", "However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”", "71. In a number of cases in which applicants have died in the course of the proceedings the Court has taken into account statements by their heirs or close family members expressing the wish to pursue the proceedings, or the existence of a legitimate interest claimed by another person wishing to pursue the application (see, for example, X v. France, 31 March 1992, § 26, Series A no. 234 ‑ C; Lukanov v. Bulgaria, 20 March 1997, § 35, Reports of Judgments and Decisions 1997 ‑ II; and Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII, with further references). Conversely, the Court and the former Commission have struck applications out of their lists in situations where the applicants have died in the course of the proceedings and either no one has come forward with a wish to pursue the application (see, for example, Öhlinger v. Austria, no. 21444/93, Commission’s report of 14 January 1997, unreported, § 15; Ibish v. Bulgaria (dec.), no. 29893/06, 31 January 2011; and Korzhenevich v. Russia (dec.), no. 36799/05, 28 June 2011), or the persons who have expressed such a wish are not heirs or sufficiently close relatives of the applicants, and cannot demonstrate that they have any other legitimate interest in pursuing the application (see Scherer v. Switzerland, 25 March 1994, §§ 31 ‑ 32, Series A no. 287; S.G. v. France (striking out), no. 40669/98, §§ 6 and 16, 18 September 2001; Thévenon v. France (dec.), no. 2476/02, ECHR 2006 ‑ III; Léger v. France (striking out) [GC], no. 19324/02, §§ 47 ‑ 51, 30 March 2009; Mitev v. Bulgaria (dec.), no. 42758/07, 29 June 2010; and Yanchev v. Bulgaria (dec.) [Committee], no. 16403/07, 20 March 2012).", "72. In the present case, the requests to pursue the proceedings were submitted by persons who had provided evidence of their status as both direct heirs and very close relatives of the deceased applicants (see paragraph 4 above).", "73. It is true that under Article 34 the existence of a victim of a violation is indispensable for the Convention’s protection mechanism to be put in motion. However, this criterion cannot be applied in a rigid, mechanical and inflexible way throughout the proceedings (see, as a recent authority, OAO Neftyanaya kompaniya YUKOS v. Russia (dec.), no. 14902/04, § 441, 29 January 2009). The Court’s approach to cases introduced by applicants themselves and only continued by their relatives after their deaths differs from its approach to cases in which the application has been lodged after the death of the direct victim (see Fairfield and Others v. the United Kingdom (dec.), 24790/04, 8 March 2005; Biç and Others v. Turkey, no. 55955/00, § 20, 2 February 2006; Direkçi v. Turkey (dec.), no. 47826/99, 3 October 2006; Grădinar v. Moldova, no. 7170/02, § 91, 8 April 2008; Dvořáček and Dvořáčková v. Slovakia, no. 30754/04, § 39, 28 July 2009; and Kaburov v. Bulgaria (dec.), no. 9035/06, § 52, 19 June 2012). Moreover, the transferability or otherwise of the applicant’s claim is not always decisive, for it is not only material interests which the successors of deceased applicants may pursue by their wish to maintain the application (see Capital Bank AD v. Bulgaria, no. 49429/99, § 78, ECHR 2005 ‑ XII (extracts)). Cases before the Court generally also have a moral or principled dimension, and persons close to an applicant may thus have a legitimate interest in obtaining a ruling even after that applicant’s death (see Malhous, cited above). This is particularly true in the present case, for two reasons. First, it concerns the application of the most fundamental provisions in the Convention system. Secondly, its subject matter is closely connected with the four applicants’ deaths. In these circumstances, it would be contrary to the Court’s mission to refrain from ruling on the complaints raised by the deceased applicants just because they did not, owing to their serious diseases, have the strength or the time to await the outcome of the proceedings before it.", "74. It cannot therefore be said that it is no longer justified to continue the examination of the applications in so far as they concern the four deceased applicants.", "75. In view of this conclusion, the Court does not consider it necessary to address the question whether respect for human rights requires the continued examination of the applications in so far as they concern the four deceased applicants (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003 ‑ IX, and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 58, 23 February 2012).", "II. ADMISSIBILITY OF THE COMPLAINTS UNDER ARTICLES 2, 3 AND 8 OF THE CONVENTION", "A. Victim status", "76. The Government submitted that the applicants could not claim to be victims of a violation, for three reasons. First, they had received adequate medical treatment, had not been denied such treatment, and there was no indication that their state of health had worsened. Secondly, Bulgarian law allowed “compassionate use” of unauthorised medicinal products. Thirdly, the applicants had not enrolled in a clinical trial that would have allowed them access to such products. Under European Union law there was no obligation, but simply a recommendation, to have a harmonised approach to the “compassionate use” of unauthorised medicinal products. MBVax Coley Fluid had not been authorised in any country and did not meet the criteria for “compassionate use” under European Union law.", "77. The Government further argued that Ms Staykova ‑ Petermann could not claim to be a victim of a violation in her own right.", "78. The applicants did not comment on those points.", "79. The Court observes that the issues raised by the first limb of the Government’s objection are closely bound up with the merits of the complaints (see, mutatis mutandis, Doğan and Others v. Turkey, nos. 8803 ‑ 8811/02, 8813/02 and 8815 ‑ 8819/02, § 93, ECHR 2004 ‑ VI (extracts); Al ‑ Skeini and Others v. the United Kingdom [GC], no. 55721/07, §§ 106 ‑ 07, ECHR 2011 ‑ ...; and Hirsi Jamaa and Others, cited above, § 111). The Court will therefore deal with those points when examining the substance of the complaints.", "80. As regards the second limb of the objection, the Court finds that, sadly, at this juncture the question whether Ms Staykova ‑ Petermann may personally claim to be a victim is of no practical importance, because her late son was also an applicant and because, following his death, she expressed the wish to pursue the proceedings in his stead, and the Court accepted that she was entitled to do so (see paragraphs 4, 73 and 74 above, and Georgel and Georgeta Stoicescu v. Romania, no. 9718/03, §§ 41 ‑ 43, 26 July 2011).", "81. The Government’s objection must therefore be rejected.", "B. Exhaustion of domestic remedies", "1. The parties’ submissions", "82. The Government submitted that the applicants had failed to exhaust domestic remedies in respect of their complaints under Articles 2, 3 and 8 of the Convention, because they had not sought judicial review of the decisions denying them the opportunity to use MBVax Coley Fluid. They said that they were not aware of cases in which the Bulgarian courts had dealt with the “compassionate use” of unauthorised medicinal products, and pointed out that those courts were not competent to declare what type of medical treatment should be applied in a particular case. It was nevertheless possible to refer the question raised by the case to a domestic court, and rely on arguments based on the Convention or on European Union law, inasmuch as the Convention had been incorporated in Bulgarian law and the relevant rules of European Union law were directly applicable. The Government went on to draw attention to the conditions under which patients could seek access to unauthorised medicinal products, and expressed the view that in the applicants’ cases those conditions had not been met.", "83. In their additional observations on this point, the Government again argued that the applicants could have sought judicial review of the decisions denying them the opportunity to use MBVax Coley Fluid, or of the regulations on which those decisions had been based. In such proceedings the applicants could have relied on the Convention: the Bulgarian courts had on a number of occasions set aside administrative decisions or struck down regulations as inconsistent with the Convention or European Union law. The Government conceded that they could not speculate as to the outcome of such proceedings, but emphasised that in their view neither the decisions nor the regulations in issue were in breach of the Medicinal Products in Human Medicine Act 2007 or of European Union law. The Act itself was fully consistent with the relevant European Union law, and therefore not in breach of the Convention. Regulations no. 2 and Regulations no. 10 both required that the medicinal product in issue be authorised in another country, which was not the applicants’ case. However, this was fully in line with Article 83 of Regulation (EC) no. 726/2004, which required that the product concerned either be the subject of an application for marketing authorisation or be undergoing clinical trials, which was again not the applicants’ case.", "84. The applicants replied that an application for judicial review of the decisions of the Director of the Medicines Executive Agency was not an effective remedy, for three reasons. First, in view of the wording of the applicable regulations, it would not have had any reasonable prospects of success. Secondly, its examination would have taken too long. Thirdly, the national courts would not have been in a position to obtain impartial expert opinions. An application for judicial review of the regulations themselves was not an effective remedy either, because such proceedings could have resulted only in the regulations being struck down, not their modification.", "85. In their additional observations on this point, the applicants again argued that an application for judicial review of the decisions of the Medicines Executive Agency would not have had a reasonable prospect of success, for several reasons. First, the requirements laid down in the applicable regulations were vague. Secondly, because of the absence from Regulations no. 2 of provisions dealing with the possibility of judicial review, and of any case ‑ law under that regulation or under the regulations that preceded it, it was unclear which would be the competent court, and even whether the courts would consider the Agency’s pronouncements to be administrative decisions subject to judicial review. Thirdly, there was no guarantee that the applicants would be able to obtain unbiased expert opinions. The impossibility of securing objective opinions by medical experts was a systemic problem in Bulgaria, as illustrated by a number of cases concerning medical negligence and reports in the press. Fourthly, all those procedural uncertainties made it very likely that any legal challenges brought by the applicants would not have been determined before their deaths. In support of that assertion the applicants pointed to several cases in which proceedings brought by patients in connection with the State’s failure to provide them with medicines had been marred by delays and had dragged on for years; in some of those cases the claimants had died long before the courts had dealt with their claims. As regards proceedings concerning challenges to statutory instruments, their average duration was two years. Fifthly, the regulations in issue were not contrary to Bulgarian law, and thus could be challenged only on Convention grounds. However, as was evident from their case ‑ law, the Bulgarian courts were likely to take into account Convention ‑ related arguments only if they were based on clear and consistent case ‑ law of this Court in relation to Bulgaria, which was not the case. There was an abundance of Bulgarian judicial decisions which had given short shrift to Convention ‑ based arguments. In sum, the prospect of a national court providing redress to the applicants before their deaths was illusory. Nor could they realistically hope to obtain from the authorities a different decision under newly issued Regulations no. 10, which likewise required that the medicinal product in issue be authorised in another country.", "2. The Court’s assessment", "86. Concerning the possibility of seeking judicial review of the decisions of the Director of the Medicines Executive Agency, the Court observes that at the relevant time the impossibility for the applicants to obtain access to the unauthorised medicinal product that they wished to have administered flowed directly from the wording of Regulation 2 of Regulations no. 2 of 10 January 2001, preceded and superseded by similar texts (see paragraphs 25 and 30 above). Under the express terms of that Regulation, and of the Regulations that preceded and superseded it, medicinal products which had not been authorised in another country – which was the case here – could not exceptionally be permitted for use in Bulgaria (see paragraphs 26, 27 and 31 above). It has not been disputed that in his decisions in respect of each of the applicants the Agency’s Director applied that provision correctly; this is confirmed by the opinion expressed by the Ombudsman of the Republic (see paragraph 16 above) and by the Government’s submissions (see, mutatis mutandis, Immobiliare Saffi v. Italy [GC], no. 22774/93, § 42 in limine, ECHR 1999 ‑ V; Urbárska Obec Trenčianske Biskupice v. Slovakia, no. 74258/01, § 86, 27 November 2007; Ognyan Asenov v. Bulgaria, no. 38157/04, § 32, 17 February 2011; and Valkov and Others v. Bulgaria, nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05, § 72, 25 October 2011). As regards the possibility of relying on the direct application of European Union law, the Court takes note of the examples cited by the Government in which the Bulgarian courts relied on that law to set aside administrative decisions (see paragraphs 38 and 39 above). However, the Court observes that, as evident from the terms of its relevant provisions, European Union law enables, but does not require, the Union’s member States to allow “compassionate use” of unauthorised medicinal products (see paragraphs 45 ‑ 51 above). There is therefore no basis on which to argue that the Director’s decisions were in breach of that law. Lastly, the Court is not persuaded that the applicants could have successfully challenged those decisions on the strength of Convention ‑ based arguments. It takes note of the examples cited by the Government in which the Bulgarian courts relied on the Convention and the Court’s case ‑ law to set aside administrative decisions, or to hold that they had jurisdiction to review such decisions (see paragraphs 39 and 40 above). However, it cannot be overlooked that in all those examples the Bulgarian courts based their decisions on established case ‑ law of this Court, whereas there is to date no firm basis in the Court’s case ‑ law on which to hold that impossibility of access to unauthorised medicinal products on a “compassionate use” basis is in breach of the Convention. The issue is novel and not free from doubt. The Court is mindful that its role is intended to be subsidiary to that of national systems safeguarding human rights, and that the national courts should normally have the initial opportunity to determine whether domestic law is compatible with the Convention (see Burden v. the United Kingdom [GC], no. 13378/05, § 42, ECHR 2008 ‑ ...). However, it considers that the examples cited by the Government cannot lead to the conclusion that in the specific circumstances of this case a domestic legal challenge based on Convention ‑ related arguments would have had a reasonable prospect of success (see, mutatis mutandis, Slavgorodski v. Estonia (dec.), no. 37043/97, 9 March 1999, and Odièvre v. France [GC], no. 42326/98, §§ 21 and 23, ECHR 2003 ‑ III). The Court also notes that, by the Government’s own admission, the Bulgarian courts have never dealt with the use of unauthorised medicinal products; it appears that since 1995, when the Minister of Health laid down regulations on this matter for the first time, no cases have been reported under those regulations (see paragraph 34 above).", "87. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that the remedy to which they refer offered a reasonable prospect of success (see, as a recent authority, Nada v. Switzerland [GC], no. 10593/08, § 141, 12 September 2012). In view of the above reasons, the Court is not satisfied that an application for judicial review of the decisions of the Director of the Medicines Executive Agency can be regarded as offering such a prospect.", "88. Nor is the Court persuaded that the applicants would have been able successfully to seek judicial review of the regulations on which those decisions were based. Those regulations do not appear to run counter to a higher ‑ ranking statutory or constitutional rule, or to a rule of European Union law. There is thus no basis in domestic law or European Union law for a challenge to them. The Court is not persuaded that the applicants could have successfully challenged the regulations on the strength of Convention ‑ based arguments either. It is true that the Supreme Administrative Court has previously struck down statutory instruments on the ground that they were contrary to the Convention, when the discrepancy between the two was clear (see the decisions cited in paragraph 37 above, and in Bochev v. Bulgaria, no. 73481/01, § 45, 13 November 2008). However, in cases where the incompatibility was not immediately apparent, it has refused to do so (see the decisions cited in Ponomaryovi v. Bulgaria, no. 5335/05, §§ 23 ‑ 24, ECHR 2011 ‑ ...). As already noted, in the present case it is far from clear that the impossibility of access to unauthorised medicinal products on a “compassionate use” basis is in breach of the Convention.", "89. In view of these conclusions, the Court does not find it necessary to enquire whether the effectiveness of the remedy proposed by the Government would have been hindered by uncertainties as to whether a legal challenge to the Director’s decisions or the underlying regulations would have been heard on the merits, or by the alleged impossibility of obtaining impartial expert opinions, or by the allegedly limited powers of the Supreme Administrative Court in proceedings for review of statutory instruments. Nor is it necessary to speculate as to whether such judicial review proceedings would have lasted so long as to render a ruling in the applicants’ favour devoid of practical purpose.", "90. The Government’s objection must therefore be rejected.", "C. Compatibility ratione materiae", "91. The Government submitted that the complaint under Article 2 was incompatible ratione materiae with the provisions of the Convention, because that Article could not be construed as requiring the State to allow access to unauthorised medicinal products. The same was true for the complaint under Article 3 of the Convention. The refusal to allow the applicants access to the experimental product MBVax Coley Fluid, whose safety and efficacy had not been established, could not be regarded as inhuman treatment.", "92. The applicants did not comment on this submission.", "93. The Court notes that the Government’s arguments concern the interpretation and application of Articles 2 and 3 of the Convention, and in particular the extent of the State’s positive obligations under those Articles in relation to the provision of unauthorised medicinal products to terminally ill patients. Considered in those terms, the objection that the complaints are incompatible ratione materiae with the provisions of the Convention is closely linked to the substance of the complaints, and is more appropriately addressed at the merits stage (see, mutatis mutandis, Bozano v. France, 18 December 1986, § 42, Series A no. 111; Vo v. France [GC], no. 53924/00, § 44, ECHR 2004 ‑ VIII; Rantsev v. Cyprus and Russia, no. 25965/04, § 211, 7 January 2010; and Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 50, 15 March 2012).", "D. The Court’s conclusion as to the admissibility of the complaints", "94. The Court further considers that these complaints are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring them inadmissible has been established. They must therefore be declared admissible.", "III. MERITS OF THE COMPLAINTS UNDER ARTICLES 2, 3 AND 8 OF THE CONVENTION", "95. The applicants complained under Article 2 § 1 of the Convention that under Bulgarian law individuals who were terminally ill and who had unsuccessfully exhausted all conventional methods of treatment could not exceptionally be allowed to use unauthorised medicinal products. They further complained that the authorities’ response to their requests to obtain such permission had been both incoherent and slow, arguing that this had been due to the lack of clear rules in that domain.", "96. The applicants also complained under Article 3 of the Convention that by denying them access to the experimental medicinal product that they wished to use the authorities had subjected them to inhuman and degrading treatment.", "97. Lastly, they complained under Article 8 of the Convention that the authorities’ refusal to allow them to use the product had been an unjustified interference with their right to respect for their private and family life.", "98. Articles 2, 3 and 8 of the Convention provide, in so far as relevant:", "Article 2 (right to life)", "“1. Everyone’s right to life shall be protected by law ...”", "Article 3 (prohibition of torture)", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 8 (right to respect for private and family life)", "“1. Everyone has the right to respect for his private and family life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well ‑ being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The parties’ submissions", "1. Concerning Article 2 of the Convention", "99. The Government pointed out that Bulgarian law made provision for “compassionate use” of unauthorised medicinal products. However, they emphasised that such products carried serious risks, which required them to be carefully regulated. The State was entitled to refuse permission for the use of an unauthorised medicinal product, and this did not breach the right to life, but safeguarded it. The positive obligations under Article 2 of the Convention had limits, and could not exceed what was reasonable. The applicants had been given conventional medical treatment. There was no further duty to allow them to use a product which was not authorised in any member State of the European Union or had not been subjected to a clinical trial. A State could not be obliged to make available all possible drugs, let alone products whose contents and origins were not clearly known, and which had not been authorised in developed countries with strong health care systems. The product at issue did not comply with the requirements for “compassionate use” under Article 83 of Regulation (EC) no. 726/2004. If its producer met the applicable requirements, the authorities could envisage allowing its use in the future. In that sense, the applicants were not left with no hope at all.", "100. The applicants submitted that the refusal to allow them to use the product had been in breach of their right to life. They highlighted the similarities and differences between their case and previous cases in which the Court had dealt with complaints under Article 2 of the Convention in relation to health care. They argued that, properly framed, the issue in their case was whether the State had taken appropriate steps to safeguard the lives of those under its jurisdiction. In their view it had not, because the rules governing “compassionate use” were not adequate, in that they did not allow the authorities to have regard to specific circumstances. All individuals in Bulgaria who, like the applicants, had cancer which was terminal and which was no longer responding to conventional treatment, were being denied access to experimental medicinal products. In the applicants’ case, this was not justified by lack of budgetary resources, because the company which had developed the product was willing to provide it free of charge. There were indications that the condition of some cancer patients had improved as a result of its use. This had given the applicants hope that it might help them as well.", "2. Concerning Article 3 of the Convention", "101. The Government drew attention to the minimum threshold bringing Article 3 of the Convention into play, which in their view had not been reached, and to the limited extent of the State’s positive obligations under that Article. They pointed out that there had been no intention to deny the applicants access to safe medicinal products. The experimental product that they wished to use had not been authorised in any country, and had not undergone clinical trials. Its safety and efficacy had not been established. Not being given the opportunity to use it could not therefore be regarded as inhuman treatment. On the contrary, its use, which would have amounted to a medical experiment, might have resulted in a breach of Article 3.", "102. The applicants submitted that they had been forced to await their deaths in spite of being aware of the existence of an experimental product which might improve their health and prolong their lives. Those of them who had died had had to endure pain and suffering before their death, in the knowledge that the use of the product in other countries had in some cases even led to complete remission from the disease.", "3. Concerning Article 8 of the Convention", "103. The Government submitted that any interference with the applicants’ rights under Article 8 of the Convention had been lawful and necessary. The refusals to allow them to use the experimental product had been reasoned, made by an independent authority, and based on legal provisions which were fully in line with European Union law. It could therefore be presumed that they were compliant with the Convention. Those provisions, which took into account the need to strike a balance between the public interest and personal autonomy, sought to protect the health and life of those concerned by preventing abuses and the risks accompanying the use of untested products. For that purpose they had laid down certain conditions, which in the applicants’ cases had not been met. That regulatory arrangement could not be described as a blanket prohibition on the “compassionate use” of unauthorised medicinal products.", "104. The applicants highlighted the similarities and differences between their case and previous cases in which the Court had dealt with similar issues under Article 8 of the Convention. They pointed out that they were not trying to derive from that provision a right to die, but on the contrary a right to try to prolong life and avert death. The refusals to allow them access to an experimental medicinal product which might help them do so amounted to interference with their rights under that Article. The manner in which a person chose to live, even if that choice could entail harmful consequences, was part of that person’s private life. The refusals had been of a blanket nature, not taking into account the specifics of each case. They had been based on inadequate legal provisions which did not permit an individualised assessment, and did not correspond to a pressing social need. They had not been intended to protect the applicants’ lives, because all of them were terminally ill and, without recourse to some new medicinal product, had only a short span of life left. In that connection, it had to be borne in mind that the exception sought would simply have given the applicants a chance to prolong their lives, and would not have shielded anyone else from criminal liability. It might have helped them avert suffering and death, as had happened with some patients in other countries.", "B. The Court’s assessment", "1. The scope of the case", "105. The Court’s task in cases arising from individual applications is not to review domestic law in the abstract, but to examine the manner in which that law has been applied to the applicants (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, § 153, Series A no. 324; Pham Hoang v. France, 25 September 1992, § 33, Series A no. 243; Sommerfeld v. Germany [GC], no. 31871/96, § 86, ECHR 2003 ‑ VIII; and S.H. and Others v. Austria [GC], no. 57813/00, § 92, ECHR 2011 ‑ ...). The Court must also confine its attention, as far as possible, to the particular circumstances of the case before it (see, among other authorities, Wettstein v. Switzerland, no. 33958/96, § 41, ECHR 2000 ‑ XII, and Sommerfeld, cited above, § 86). It is therefore not called upon in the present case to pass judgment on the system of rules governing access to unauthorised medicinal products in Bulgaria, or to decide whether refusal of access to medicinal products is in principle compatible with the Convention. Moreover, the Court is not competent to express an opinion as to the suitability of a particular medical treatment. Lastly, the Court does not have to establish whether the product that the applicants wished to use met the requirements of European Union law, and in particular the requirement of Article 83 § 2 of Regulation (EC) no. 726/2004 to be undergoing clinical trials (see paragraphs 10, 45 and 50 above); the Court is competent only to apply the Convention, and it is not its task to review compliance with other international instruments (see Di Giovine v. Portugal (dec.), no. 39912/98, 31 August 1999; Hermida Paz v. Spain (dec.), no. 4160/02, 28 January 2003; Somogyi v. Italy, no. 67972/01, § 62, ECHR 2004 ‑ IV; Calheiros Lopes and Others v. Portugal (dec.), no. 69338/01, 3 June 2004; and Böheim v. Italy (dec.), no. 35666/05, 22 May 2007). In the present case, the Court must determine only whether the refusals to allow the applicants access to the product at issue were compatible with their Convention rights.", "2. Alleged violation of Article 2 of the Convention", "106. The first sentence of Article 2 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, among other authorities, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 48, ECHR 2002 ‑ I, and Wiater v. Poland (dec.), no. 42290/08, § 33, 15 May 2012). The Court has previously held that it cannot be excluded that acts and omissions of the authorities in the field of health care policy may in some circumstances engage the State’s responsibility under Article 2 (see Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000 ‑ V; Nitecki v. Poland (dec.), no. 65653/01, 21 March 2002; Trzepałko v. Poland (dec.), no. 25124/09, § 23, 13 September 2011; and Wiater, cited above, § 34). It has also held that, with respect to the scope of the State’s positive obligations in the provision of health care, an issue may arise under Article 2 where it is shown that the authorities have put an individual’s life at risk through the refusal of health care which they have undertaken to make available to the general population (see Cyprus v. Turkey [GC], no. 25781/94, § 219, ECHR 2001 ‑ IV; Nitecki, cited above; Pentiacova and Others v. Moldova (dec.), no. 14462/03, ECHR 2005 ‑ I; Gheorghe v. Romania (dec.), no. 19215/04, 22 September 2005; and Wiater, cited above, § 35).", "107. In the present case, it is not being argued that the applicants have been refused health care which is otherwise generally available in Bulgaria. Nor are the applicants suggesting that the State should pay for a particular form of conventional treatment because they are unable to meet its costs (contrast Nitecki; Pentiacova and Others; Gheorghe; and Wiater, all cited above). The applicants’ claim is rather that, because conventional treatments did not work in their cases, domestic law should be framed in such a way as to entitle them, exceptionally, to have access to an experimental and yet untested product that would be provided free of charge by the company which is developing it.", "108. It is true that the positive obligations under Article 2 may include the duty to put in place an appropriate legal framework, for instance regulations compelling hospitals to adopt appropriate measures for the protection of their patients’ lives (see Calvelli and Ciglio, cited above, § 49), or regulations governing dangerous industrial activities (see Öneryıldız v. Turkey [GC], no. 48939/99, § 90, ECHR 2004 ‑ XII). Nevertheless, it cannot be said that Bulgaria does not have in place regulations governing access to unauthorised medicinal products in cases where conventional forms of medical treatment appear insufficient. Such regulations exist and have recently been updated (see paragraphs 23 ‑ 32 above). The applicants rather take issue with the terms of those regulations, arguing that they are overly restrictive. However, in the Court’s view Article 2 of the Convention cannot be interpreted as requiring access to unauthorised medicinal products for the terminally ill to be regulated in a particular way. It should be noted in this connection that in the European Union this matter remains within the competence of the member States (see paragraphs 45 ‑ 51 above), and that the Contracting States deal differently with the conditions and manner in which access to unauthorised medicinal products is provided (see paragraphs 54 ‑ 55 above).", "109. There has therefore been no violation of Article 2 of the Convention.", "3. Alleged violation of Article 3 of the Convention", "110. Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture and inhuman or degrading treatment or punishment. However, to fall under that provision a given form of treatment must attain a minimum level of severity. The assessment of this minimum level is relative. It depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, as a recent authority, A, B and C v. Ireland [GC], no. 25579/05, § 164, ECHR 2010 ‑ ...). In considering whether a treatment is “degrading”, the Court will have regard to whether its object was to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see, among other auhtorities, Wainwright v. the United Kingdom, no. 12350/04, § 41, ECHR 2006 ‑ X).", "111. An examination of the Court’s case ‑ law shows that Article 3 has been most commonly applied in contexts in which the risk of being subjected to a proscribed form of treatment has emanated from intentionally inflicted acts of State agents or public authorities. It may be described in general terms as imposing a primarily negative obligation on States to refrain from inflicting serious harm on persons within their jurisdiction. However, in view of the fundamental importance of Article 3, the Court has reserved to itself sufficient flexibility to address its application in other situations (see Pretty v. the United Kingdom, no. 2346/02, § 50, ECHR 2002 ‑ III). For instance, suffering which flows from a naturally occurring illness may be covered by Article 3 where it is, or risks being, exacerbated by treatment stemming from measures for which the authorities can be held responsible (see N. v. the United Kingdom [GC], no. 26565/05, § 29, ECHR 2008 ‑ ...). However, the threshold in such situations is high, because the alleged harm emanates not from acts or omissions of the authorities but from the illness itself (ibid., § 43).", "112. In the present case, there is no complaint that the applicants have not received adequate medical treatment. It appears that all of them have benefited from such treatment, which has sadly proved insufficient to treat their medical conditions. Their situation is therefore not comparable to those of persons in custody who complain of a lack of medical treatment (see, for example, Keenan v. the United Kingdom, no. 27229/95, §§ 109 ‑ 16, ECHR 2001 ‑ III; McGlinchey and Others v. the United Kingdom, no. 50390/99, §§ 47 ‑ 58, ECHR 2003 ‑ V; and Sławomir Musiał v. Poland, no. 28300/06, §§ 85 ‑ 98, 20 January 2009), seriously ill persons who would be unable to obtain treatment if removed to a country which lacks adequate medical facilities (see N. v. the United Kingdom, cited above, §§ 32 ‑ 51, and the cases cited therein), or persons in a vulnerable situation who have, as a result of rank indifference on the part of health care professionals, been denied access to otherwise available diagnostic services to which they were entitled as a matter of law (see R.R. v. Poland, no. 27617/04, §§ 148 ‑ 62, 26 May 2011).", "113. The applicants rather claim that the refusal by the authorities to allow them access to an experimental product which, according to them, was potentially life ‑ saving, amounted to inhuman and degrading treatment for which the State was responsible, as it thereby failed to protect them from the suffering resulting from the final stages of their illness. However, as in Pretty (cited above, § 54), the Court considers that this claim puts an extended construction on the concept of inhuman or degrading treatment that it cannot accept. It cannot be said that by refusing the applicants access to a product – even if potentially life ‑ saving – whose safety and efficacy are still in doubt, the authorities directly added to the applicants’ physical suffering. It is true that the refusals, inasmuch as they prevented the applicants from resorting to a product which they believed might improve their chances of healing and survival, caused them mental suffering, especially in view of the fact that the product appears to be available on an exceptional basis in other countries. However, the Court does not consider that the authorities’ refusal reached a sufficient level of severity to be characterised as inhuman treatment (see, mutatis mutandis, A, B and C v. Ireland, cited above, §§ 163 ‑ 64). It notes in this connection that Article 3 does not place an obligation on the Contracting States to alleviate the disparities between the levels of health care available in various countries (see, mutatis mutandis, N. v. the United Kingdom, cited above, § 44). Lastly, the Court does not consider that the refusals can be regarded as humiliating or debasing the applicants.", "114. Whether the refusals unduly interfered with the applicants’ right to respect for their physical integrity is a point which the Court will examine below by reference to Article 8 of the Convention (see, mutatis mutandis, Tysiąc v. Poland, no. 5410/03, § 66, ECHR 2007 ‑ I, and L. v. Lithuania, no. 27527/03, § 47, ECHR 2007 ‑ IV).", "115. There has therefore been no violation of Article 3 of the Convention.", "4. Alleged violation of Article 8 of the Convention", "(a) Applicability of Article 8", "116. The essence of the applicants’ grievance is that there is a regulatory limitation on their capacity to choose, in consultation with their doctors, the way in which they should be medically treated with a view to possibly prolonging their lives. This complaint clearly falls to be examined under Article 8, whose interpretation, so far as the notion of “private life” is concerned, is underpinned by the notions of personal autonomy and quality of life (see Pretty, cited above, §§ 61 in fine and 65, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002 ‑ VI). It is by reference to that provision that the Court and the former Commission have most often examined the extent to which States can use compulsory powers to protect people from the consequences of their own conduct, including when that conduct poses a danger to health or is of a life ‑ threatening nature (see, for example, concerning involvement in consensual sado-masochistic activities, Laskey, Jaggard and Brown v. the United Kingdom, 19 February 1997, §§ 35 ‑ 36, Reports 1997 ‑ I, and K.A. and A.D. v. Belgium, no. 42758/98 and 45558/99, §§ 78 and 83, 17 February 2005; concerning imposition of medical treatment without consent, Acmanne and Others v. Belgium, no. 10435/83, Commission decision of 10 December 1984, DR 40, p. 251; Glass v. the United Kingdom, no. 61827/00, §§ 82 ‑ 83, ECHR 2004 ‑ II; Storck v. Germany, no. 61603/00, §§ 143 ‑ 44, ECHR 2005 ‑ V; Jehovah’s Witnesses of Moscow v. Russia, no. 302/02, § 135, ECHR 2010 ‑ ...; and Shopov v. Bulgaria, no. 11373/04, § 41, 2 September 2010; and, concerning assisted suicide, Pretty, cited above, §§ 62 ‑ 67, and Haas v. Switzerland, no. 31322/07, § 51, ECHR 2011 ‑ ...).", "(b) Positive obligation or interference with a right?", "117. The parties argued the case in terms of interference with the applicants’ rights under Article 8. In the Court’s view, however, the point is not so clear-cut. The central issue in the case may be seen as either a curtailment of the applicants’ choice of medical treatment, to be analysed as an interference with their right to respect for their private life (compare, mutatis mutandis, Pretty, cited above, § 67; A, B and C v. Ireland, cited above § 216; and S.H. and Others v. Austria, cited above, §§ 85 ‑ 88), or as an allegation of a failure on the part of the State to provide an appropriate regulatory framework securing the rights of persons in the applicants’ situation, to be analysed in terms of the State’s positive duty to ensure respect for their private life (compare, mutatis mutandis, Christine Goodwin, § 71; Tysiąc, §§ 107 ‑ 08; Haas, §§ 52 ‑ 53; A, B and C v. Ireland, §§ 244 ‑ 46; and R.R. v. Poland, § 188, all cited above). The Court does not find it necessary to determine this point. Although the boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition, the applicable principles are similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole (see, among other authorities, Powell and Rayner v. the United Kingdom, 21 February 1990, § 41, Series A no. 172; Evans v. the United Kingdom [GC], no. 6339/05, § 75, ECHR 2007 ‑ I; and Dickson v. the United Kingdom [GC], no. 44362/04, § 70, ECHR 2007 ‑ V). The salient issue in this case is precisely whether such a balance has been struck, regard being had to the State’s margin of appreciation in this domain.", "(c) The competing interests and the applicable margin of appreciation", "118. In its recent judgment in S.H. and Others v. Austria (cited above, § 94), the Court summarised the principles for determining the breadth of the State’s margin of appreciation under Article 8 as follows. A number of factors must be taken into account. Where a particularly important facet of an individual’s existence or identity is at stake, the margin will normally be restricted. Where, however, there is no consensus within the Contracting States, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider. There will usually be a wide margin if the State is required to strike a balance between competing private and public interests or Convention rights.", "119. The Court starts with the general point that matters of health-care policy are in principle within the margin of appreciation of the domestic authorities, who are best placed to assess priorities, use of resources and social needs (see Shelley v. the United Kingdom (dec.), no. 23800/06, 4 January 2008).", "120. Turning to the competing interests, the Court observes that it is undeniable that the applicants’ interest in obtaining medical treatment capable of mitigating their illness or of helping them defeat it is of the highest order. However, the analysis cannot stop there. When it comes to experimental medicinal products, it is in the nature of things that their quality, efficacy and safety are open to doubt. The applicants do not deny this. They rather seek to argue that because of the dire prognosis attaching to their medical condition, they should have been allowed to assume the risks attendant on a potentially life ‑ saving experimental product. Framed in these terms, the applicants’ interest is of a different nature. It may be described as the freedom to opt, as a measure of last resort, for an untested treatment which may carry risks but which the applicants and their doctors consider appropriate to their circumstances, in an attempt to save their lives.", "121. That said, the Court nonetheless accepts that, in view of their medical condition and the prognosis for its development, the applicants had a stronger interest than other patients in obtaining access to experimental treatment whose quality, safety and efficacy have not yet been subjected to comprehensive testing.", "122. The countervailing public interest in regulating the access of terminally ill patients such as the applicants to experimental products appears to be based on three premises. Firstly, to protect them, in view of their vulnerable state and the lack of clear data on the potential risks and benefits of experimental treatments, against a course of action which may prove harmful to their own health and life, their terminal condition notwithstanding (see, mutatis mutandis, Haas, cited above, § 54). The Court notes in this connection that it has emphasised, albeit in a different context, the importance of informed consent to medical procedures (see V.C. v. Slovakia, no. 18968/07, §§ 107 ‑ 17 and 152, ECHR 2011 ‑ ... (extracts), and N.B. v. Slovakia, no. 29518/10, §§ 76 ‑ 78 and 96, 12 June 2012). Secondly, to ensure that the prohibition laid down in section 7(1) of the Medicinal Products in Human Medicine Act 2007 (see paragraph 22 above) against the production, importation, trade in, advertisement, or use for medical treatment, prophylaxis or diagnostics of products which have not been granted authorisation under the appropriate regulatory channels is not diluted or circumvented. Thirdly, to ensure that the development of new medicinal products is not compromised by, for instance, diminished patient participation in clinical trials. All those interests are related to the rights guaranteed under Articles 2, 3 and 8 the Convention, the first very specifically and the second and third more generally. Moreover, balancing them against the applicants’ interest touches upon complex ethical and risk-assessment issues, against a background of fast-moving medical and scientific developments.", "123. As regards the consensus within the Contracting States, the Court observes that, according to the comparative-law information available to it, a number of those States have made provision in their laws for exceptions, in particular in the case of terminally ill patients, to the rule that only authorised medicinal products may be used for medical treatment. They have, however, made this option subject to conditions of varying strictness (see paragraphs 54 ‑ 55 above). On that basis, and on the basis of the manner in which the issue is regulated in the law of the European Union (see paragraphs 44 ‑ 51 above), the Court concludes that there is now a clear trend in the Contracting States towards allowing, under certain exceptional conditions, the use of unauthorised medicinal products. However, that emerging consensus is not based on settled principles in the law of the Contracting States. Nor does it appear to extend to the precise manner in which that use should be regulated.", "124. On the basis of the above considerations, the Court concludes that the margin of appreciation to be afforded to the respondent State must be a wide one, especially as regards the detailed rules it lays down with a view to achieving a balance between competing public and private interests (see, mutatis mutandis, Evans, § 82, and S.H. and Others v. Austria, § 97, both cited above).", "(d) Balancing the interests", "125. The Bulgarian authorities have chosen to balance the competing interests by allowing patients who cannot be satisfactorily treated with authorised medicinal products, including terminally ill patients such as the applicants, to obtain, under certain conditions, medicinal products which have not been authorised in Bulgaria, but only if those products have already been authorised in another country (see paragraphs 26 and 31 above). That was apparently the main reason for the refusals by the Medicines Executive Agency in the applicants’ cases (see paragraph 14 above). Such a solution tilts the balance between potential therapeutic benefit and medicine risk avoidance decisively in favour of the latter, because medicinal products authorised in another country are likely already to have been subjected to comprehensive safety and efficacy testing. At the same time, this solution leaves products which are still in the various stages of development entirely inaccessible. In view of the authorities’ broad margin of appreciation in this domain, the Court considers that regulatory solution did not fell foul of Article 8. It is not for an international court to determine in place of the competent national authorities the acceptable level of risk in such circumstances. The salient question in terms of Article 8 is not whether a different solution might have struck a fairer balance, but whether, in striking the balance at the point at which they did, the Bulgarian authorities exceeded the wide margin of appreciation afforded to them (see, mutatis mutandis, Evans, § 91, and S.H. and Others v. Austria, § 106, both cited above). In view of the considerations set out above, the Court is unable to find that they did.", "126. The applicants’ other criticism of the regulatory arrangement was that it did not sufficiently allow individual circumstances to be taken into account. However, the Court finds that this was not necessarily inconsistent with Article 8. It is not in itself contrary to the requirements of that provision for a State to regulate important aspects of private life without making provision for the weighing of competing interests in the circumstances of each individual case (see, mutatis mutandis, Pretty, §§ 74 ‑ 76; Evans, § 89; and S.H. and Others v. Austria, § 110, all cited above).", "127. The Court therefore concludes that there has been no violation of Article 8 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "128. The applicants complained that they did not have effective remedies in respect of the alleged breaches of Articles 2, 3 and 8 of the Convention. They relied on Article 13, which provides as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "129. The Government submitted that the applicants could have sought to vindicate their rights under Articles 2, 3 and 8 of the Convention by bringing claims in tort, either under the general law of tort or under the special provisions governing the authorities’ liability in tort. They could also have appealed against the refusals to the Minister of Health and then sought judicial review.", "130. The applicants referred to their submissions in relation to the exhaustion of domestic remedies.", "131. The Court observes that in so far as the alleged breaches of Articles 2, 3 and 8 of the Convention appear to stem from the state of Bulgarian law, no issue arises under Article 13 of the Convention (see Christine Goodwin, cited above, § 113; Appleby and Others v. the United Kingdom, no. 44306/98, § 56, ECHR 2003 ‑ VI; Iordachi and Others v. Moldova, no. 25198/02, § 56, 10 February 2009; and V.C. v. Slovakia, no. 18968/07, § 167, 8 November 2011).", "132. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1963 and lives in Călărași.", "6. On 26 October 2005 the applicant and her daughter drank water from taps in their apartment and shortly thereafter they felt unwell. On 29 October 2005 the applicant ’ s daughter, who was twelve at the time, was admitted to hospital with a diagnosis of “serious acute dysentery”. The applicant was admitted to hospital with the same diagnosis on 31 October 2005. She was released from hospital on 13 November 2005, a day later than her daughter.", "7. The applicant lodged a court action against the local utilities provider (“the provider”), a State-owned company, claiming 100,000 Moldovan lei (“MDL”, approximately 6,700 euros (EUR) at the time) in compensation for the harm caused to her health and for the related inconveniences, including subsequent investigations and disinfection.", "8. On 1 March 2006 the Călăraşi District Court found in her favour. It found that various sanitary, medical and technical reports had established that in the vicinity of the applicant ’ s apartment block the sewage pipe was situated above the drinking water pipe and was leaking. The water pipe had cracked on 26 October 2005 and sewage water had infiltrated the drinking water pipe. The court also established that the pipes had been used since 1977 and that their expected lifespan was fifteen years. A total of five people, all of whom had drunk water from taps connected to the same water pipe, had been admitted to hospital with the same diagnosis at approximately the same time as the applicant. Taking into consideration such elements as the amount of physical and mental suffering caused to the applicant and her daughter, the court awarded her MDL 10,000 ( approximately EUR 648 at the time ).", "9. The parties appealed. On 26 April 2006 the Chişinău Court of Appeal rejected the applicant ’ s appeal and partly accepted the provider ’ s appeal. It reduced the award to MDL 5,000 (EUR 310) because it found exaggerated “both the sum claimed by [the applicant] and that awarded to [her]”.", "10. The parties appealed. On 25 October 2006 the Supreme Court of Justice upheld the judgment of 26 April 2006. It found that the lower court had taken into consideration the nature and seriousness of the mental suffering caused to the applicant, as well as the degree of guilt of the defendant. That judgment was final." ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "11. The applicant complained that her health had been endangered as a result of having drunk contaminated water. She considered that there had been a violation of Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "12. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "13. The applicant submitted that although the domestic courts had found a violation of her rights, the award made in her favour had been too small to compensate for the physical and mental suffering caused to her and her family. Moreover, she submitted documents confirming that she had continued to have health problems after the events of 2005, such as an acute ulcer, chronic cholecystitis, uncompensated hypothyroidism and a metabolic disorder. She had been regularly treated since then for these conditions.", "14. The Government submitted that the domestic courts had in essence established a violation of the applicant ’ s rights under Article 8 of the Convention. Moreover, they had decided the amount of compensation based on their direct knowledge of the case and on the basis of the parties ’ arguments and evidence. The applicant had been awarded compensation in respect of this breach of Article 8 and consequently no longer had victim status. The award made by the domestic courts had been reasonable in the light of the relatively short period of the applicant ’ s in-patient treatment and the lack of evidence of any long-lasting effects on the applicant.", "2. The Court ’ s assessment", "15. As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers, inter alia, the physical and psychological integrity of a person (see, for instance, X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91, Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III and G.B. and R.B. v. the Republic of Moldova, no. 16761/09, § 29, 18 December 2012 ). It has also found that “there is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8” (see, for instance, Powell and Rayner v. the United Kingdom, 21 February 1990, § 40, Series A no. 172, López Ostra v. Spain, 9 December 1994, § 51, Series A no. 303 ‑ C, Guerra and Others v. Italy, 19 February 1998, § 57, Reports of Judgments and Decisions 1998 ‑ I and Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003 ‑ VIII ). Moreover, “Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure to regulate private industry properly. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants ’ rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar” ( Hatton and Others, cited above, § 98 ).", "16. The Court recalls that it falls first to the national authorities to redress any alleged violation of the Convention. The question whether a person may still claim to be the victim of an alleged violation of the Convention essentially entails on the part of the Court an ex post facto examination of his or her situation. A decision or measure of the domestic authorities favourable to the applicant is not in principle sufficient to deprive her of her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for instance, Ciorap v. Moldova (no. 2), no. 7481/06, § 18, 20 July 2010 ). The question whether the victim of a violation of the Convention has received reparation for the damage caused – comparable to just satisfaction as provided for under Article 41 of the Convention – is an important issue. It is the Court ’ s settled case-law that where the national authorities have found a violation and their decision constitutes appropriate and sufficient redress, the party concerned can no longer claim to be a victim within the meaning of Article 34 of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 179-181, ECHR 2006 ‑ V).", "17. In the present case, the Court notes that the parties did not dispute the domestic courts ’ findings concerning the violation of the applicant ’ s rights by the State-owned company. Considering the materials in the file, the Court finds that an interference with the applicant ’ s rights protected under Article 8 of the Convention has taken place since her physical integrity has been affected by an unhealthy environment (see paragraph 15 above). In assessing whether the Moldovan authorities discharged their positive obligation under that provision, the Court notes that the domestic courts provided a remedy in the form of establishing the company ’ s responsibility and awarding compensation. Without expressly relying on the Convention but referring to the in-hospital treatment and the physical and mental suffering caused to the applicant (see paragraph 8 above), those courts ’ judgments could be interpreted as finding in fact a breach of the applicant ’ s Article 8 rights, as also argued by the Government (see paragraph 14 above). The Court sees no reason to depart from those findings in this respect.", "18. The only issue which remains to be determined is the amount of compensation. The first-instance court awarded the applicant the equivalent of EUR 648 in respect of non-pecuniary damage, referring to such criteria as the amount of physical and mental suffering caused (see paragraph 8 above). While confirming the findings of the first-instance court, the higher court halved the award made and the Supreme Court of Justice upheld that reduced award. The higher courts relied on the same elements (degree of harm), but arrived at a different conclusion concerning the amount to be awarded. No specific reasons were given for this reduction, except a reference to the degree of responsibility of the defendant.", "19. The Court takes into account the Government ’ s argument concerning the relatively short period of in-patient treatment and the absence of evidence of long-term effects on the applicant. Nevertheless, she was kept in hospital for two weeks, which implies that she sustained a certain degree of mental and physical suffering. Moreover, it considers that the sum awarded by the domestic courts is considerably below the minimum generally awarded by the Court in cases in which it has found a violation of Article 8 in respect of the Republic of Moldova, even taking into account the differences between these decisions.", "20. In the light of the foregoing, the Court considers that the applicant can still claim to be a victim of a violation of Article 8 of the Convention. Furthermore, in the light of the conclusions of the domestic courts, it finds that there has been a violation of Article 8.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "21. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "22. The applicant claimed EUR 50,000 in respect of non-pecuniary damage.", "23. The Government disagreed, arguing that this amount was unfounded and that the claim should thus be dismissed.", "24. Having regard to the violation found above and the award made in the applicant ’ s favour by the domestic courts, the Court considers that an award of compensation for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR 4, 0 00.", "B. Costs and expenses", "25. The applicant made no claim in this respect.", "C. Default interest", "26. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. The applicant was born in 1960 and lives in the city of Chernigiv.", "1. The applicant ’ s criminal case and derivative proceedings", "a. Criminal charge against the applicant", "5. On 3 May 1999 the Chernigiv City Prosecutor ’ Office (hereinafter the Prosecutor ’ Office) instituted criminal proceedings against the applicant for abuse of power and forgery of official documents. The prosecution ’ s case was that the applicant, while acting in his capacity as a private notary, had fraudulently certified a title and real-estate transactions using invalid registration forms.", "6. On 21 May 1999 the Chernygiv City Prosecutor issued a search warrant in respect of the applicant ’ s office. The search was carried out the same day. According to the record drawn up on this occasion, the authorities seized at the office notary stamps and documents, a number of accounting records and a metal strong-box. The latter was opened on 2 July 1999 at the premises of the Prosecutor ’ s Office. The relevant record stated that there had been found, inter alia, personal items belonging to the applicant.", "7. On 28 July 1999 an investigator from the Prosecutor ’ s Office closed the applicant ’ s case given the lack of any corpus delicti.", "8. On 20 September 2000 the acting Chernigiv City Prosecutor overruled the investigator ’ s decision, as it had been proved that the applicant had committed the imputed offence, but ordered the discontinuation of proceedings due to the insignificance of the offence. The applicant challenged this finding, claiming that he had not committed any offence. On 21 December 2000 the Desniansky District Court of Chernigiv (hereafter “the Desniansky Court ”) rejected the applicant ’ s complaint.", "9. On 26 February 2001 the Presidium of the Chernigiv Regional Court, in the course of supervisory proceedings, quashed the decision of the Desniansky Court and remitted the case.", "10. On 4 April 2001 the Desniansky Court quashed the City Prosecutor ’ s ruling of 20 September 2000 and ordered a further pre-trial investigation.", "11. On 26 May 2001 an investigator terminated the criminal proceedings on substantially the same grounds as in the September 2000 ruling. On 4 July 2001 the Chernigiv City Prosecutor quashed this decision and ordered further inquiries in the case.", "12. On 4 August 2001 the criminal case was closed due to the insignificance of the offence which had been committed. The applicant ’ s complaint against this ruling was rejected on 6 November 2001 by the Desniansky Court as being unsubstantiated. In particular, the court indicated that the applicant ’ s guilt had been proved by the evidence collected in the course of the investigation.", "13. On 24 January 2002 the Chernigiv Regional Court of Appeal (hereafter “the Court of Appeal”) quashed the decision of 6 November 2001 as the local court had failed to specify the evidence in support of its opinion as to the applicant ’ s guilt. The case was remitted for a fresh consideration.", "14. On 26 June 2002 the Desniansky Court rejected the applicant ’ s complaint against the ruling of 4 August 2001. The court indicated that the investigation case file contained sufficient evidence to establish that the applicant had forged a certain notary document and wittingly carried out an invalid notarial action. However, having regard to the insignificance of the offence, further criminal prosecution was impractical. As regards the applicant ’ s submissions concerning the inadmissibility of the evidence obtained by the search of his office, the court found that such complaints could be raised during the trial on the merits and considered itself incompetent to examine them in the course of the proceedings before it.", "On 9 September 2002 the Court of Appeal upheld this decision. On 13 December 2002 the Supreme Court rejected the applicant ’ s request for leave to appeal under the cassation procedure.", "b. Compensation proceedings", "15. In January 2000 the applicant instituted proceedings against the Prosecutor ’ s Office, seeking monetary compensation for the material and moral damage suffered as a result of the allegedly unlawful search of his office (i.e. loss of or damage to personal items and the seizure of documents essential for his professional activity).", "16. On 28 August 2000 the Novozavodsky District Court of Chernigiv (hereafter “the Novozavodsky Court ”) granted this claim. The court declared the search of the applicant ’ s office “to have been conducted unlawfully” ( визнати проведення обшуку незаконним ). In particular, it established that in breach of Article 183 of the Code of Criminal Procedure (hereafter “the CCP”) the investigator, being well aware of the applicant ’ s whereabouts (at that time he was undergoing hospital treatment), had failed to serve the search warrant on him. Moreover, contrary to Article 186 of the CCP, the authorities, instead of collecting the evidence relating to the criminal case, had seized all the official documents and certain personal items in the applicant ’ s office. This had effectively denied the applicant the possibility of performing his professional duties until 6 August 1999, when the relevant documents and items were returned to him. The court awarded the applicant UAH 14,140 [1] in material and UAH 1,000 [2] in moral damages.", "17. On 16 January 2001 the Chernygiv Regional Court, on an appeal by the Prosecutor ’ s Office, quashed the decision of 28 August 2000 and remitted the case for fresh consideration because the legal basis for the decision (namely the termination of the criminal proceedings on “exonerative” grounds ) had ceased to exist.", "18. On 26 December 2001 the Novozavodsky Court examined the applicant ’ s claim and rejected it as being unsubstantiated. The court, referring to the Prosecutor ’ s Office ’ s ruling of 4 August 2001, found that the applicant ’ s case had been closed on non-exonerative grounds, within the meaning of Article 2 of the Law of Ukraine “on the procedure for compensation of damage caused to the citizen by unlawful actions of bodies of inquiry, pre-trial investigation, prosecutors and courts” 1994, and therefore the applicant had no standing to claim compensation for any acts or omissions allegedly committed by the authorities in the course of the investigation.", "19. On 23 May 2002 the Court of Appeal stayed the appeal proceedings until the determination of the applicant ’ s complaint against the ruling of the Prosecutor ’ s Office of 4 August 2001 ( i. e. the grounds for the termination of his criminal case). On 3 January 2003 the appeal proceedings were renewed and the applicant ’ s appeal against the judgment of 26 December 2001 was rejected.", "2. Defamation proceedings", "20. In December 2001 the applicant instituted proceedings in the Novozavodsky Court against the Chernigiv Law College and its Principal for defamation. The applicant alleged that, during the Attestation Commission ’ s hearing on 14 May 2001, the Principal had made three statements about him which were libellous and abusive, including one rudely questioning his mental health. The applicant demanded apologies and compensation for moral damage.", "21. During the trial, one of the applicant ’ s main arguments was that he had never suffered any mental health problems. He adduced to this effect a certificate supposedly issued by a psychiatric hospital, attesting that the applicant had never been treated there.", "22. The case of the defence was that the Principal had never uttered the obscenities attributed to him by the applicant. However, they challenged the authenticity of the above certificate and asked the court to verify the applicant ’ s assertions. On 21 March 2002 this application was granted and the Chernigiv Regional Psycho-Neurological Hospital was requested to provide information as to whether the applicant had undergone any psychiatric treatment. On 3 April 2002 the hospital submitted to the court a certificate to the effect that for several years the applicant had been registered as suffering from a certain mental illness and underwent in-patient treatment in different psychiatric establishments. However, several years earlier his psychiatric registration had been cancelled due to long-term remission (a temporary lessening of the severity) of the disease. This information was read out by a judge at one of the subsequent hearings; however, no reference to this evidence was made in the final judgment.", "23. On 3 June 2002 the Novozavodsky Court rejected the applicant ’ s claim as unsubstantiated. The court found, inter alia, that the applicant had failed to prove that the defendant had made any remarks about his sanity.", "24. The applicant appealed, challenging, inter alia, the lawfulness of the court ’ s request for information about his mental state.", "25. On 1 October 2002 the Court of Appeal upheld the judgment in substance. On the same day the court issued a separate ruling to the effect that the first instance court ’ s request for information concerning the applicant ’ s mental health from the public hospital was contrary to Article 32 of the Constitution, Articles 23 and 31 of the Data Act 1992 and Article 6 of the Psychiatric Medical Assistance Act 2000. In particular, it was indicated that information about a person ’ s mental health was confidential, and its collection, retention, use and dissemination fell under a special regime. Moreover, the court held that the requested evidence had no relevance to the case.", "Summing up the above considerations, the Court of Appeal found that the judges of the lower courts lacked training in the field of confidential data protection and notified the Regional Centre for Judicial Studies about the need to remedy this lacuna in their training programme.", "26. On 24 June 2003 the Supreme Court rejected the applicant ’ s request for leave to appeal under the cassation procedure." ]

[ "II. RELEVANT DOMESTIC LAW", "1. Constitution of Ukraine, 1996", "27. The relevant provisions of the Constitution read as follows:", "Article 30", "“ Everyone is guaranteed the inviolability of his or her home.", "Entry into a home or other possessions of a person, and the examination or search thereof, shall not be permitted, other than pursuant to a reasoned court decision.", "In urgent cases related to the preservation of human life and property or to the direct pursuit of persons suspected of committing a crime, another procedure established by law is possible for entry into a home or other possessions of a person, and for the examination and search thereof.", "Article 32", "No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine.", "The collection, retention, use and dissemination of confidential information about a person without his or her consent shall not be permitted, except in cases determined by law, and only in the interests of national security, economic welfare and human rights ... ”", "2. Code of Criminal Procedure, 1960", "28. Article 6 of the Code enumerates the reasons for the termination of criminal proceedings, including the absence of any corpus delicti. Article 7 of the Code provides that the case can be closed on the ground of the insignificance of an offence which had been committed.", "Article 327 § 4 of the Code provides that the trial court acquits the defendant in the following cases:", "- if the event of the crime has not been established;", "- if the defendant ’ s actions do not constitute any corpus delicti;", "- if there is a lack of evidence that the defendant was involved in the offence.", "The same grounds, called the “exonerating circumstances” ( реабілітуючи обставини ) constitute a basis for compensation for unlawful prosecution (see paragraph 35 below). The remainder of the grounds for the termination of criminal proceedings, set out in Articles 6, 7 and 7-1 of the Code (including the insignificance of an offence ) are called “non-exonerating circumstances” ( нереабілітуючи обставини ) and do not give rise to a right for compensation for any alleged wrongs committed by the authorities during the investigation.", "29. Article 212 of the Code provides that, on completion of the investigation, the investigator either draws up an indictment or terminates the case.", "According to Article 213 of the Code the case can be closed by the investigator on both exonerating and non-exonerating grounds.", "30. Article 227 § 2 of the Code empowers the prosecutor to quash any investigator ’ s decision and to give binding instructions to the investigating authorities if he/she finds that the proceedings were conducted contrary to the procedural or sustentative law. However, the prosecutor does not have power to award any damages to a defendant for the established wrongdoing on the part of the investigating authorities.", "31. The relevant provisions of the Code provide as follows:", "Article 177", "“ The search shall be carried out if there are sufficient grounds to believe that the means of committing an offence ... and other items and documents important for the case are kept in certain premises.", "Article 183", "At the beginning of a search the investigator shall provide the [search] warrant to persons who occupy the premises ... and shall propose to them to produce the items or documents specified in the warrant ... If they refuse to do so, the investigator shall carry out the compulsory search.", "... When conducting the search the investigator shall have the right to open locked premises if the occupier refuses to open them. The investigator, however, shall avoid inflicting unnecessary damage to doors, locks and other property...", "Article 186", "During the search ... there shall be seized only those documents and items which are important for the case, as well as property of the accused or defendant in order to secure civil claim or possible confiscation. Items and documents, removed by law from circulation, shall be seized irrespective of their relation to the case.", "Article 236-6", "The complaint in respect of the decision [ruling] of the body of inquiry, investigator or the prosecutor to terminate the criminal case is examined by the judge within 5 ... days.", "The judge requests the case file, studies it and, if necessary, hears the person who lodged the complaint.", "... Having examined the complaint, the judge, depending on whether Articles 213 and 214 [3] of this Code have been complied with, takes one of the following decisions:", "1) dismisses the complaint;", "2) quashes the ruling ... and remits the case for further investigation. ”", "3. Code of Civil Procedure, 1963", "32. Article 10 of the Code provides:", "Hearings in all courts shall be public except when this conflicts with interests of the protection of the State or another secret protected by law.", "The in camera consideration of the case can also be ordered by the reasoned decision of the court with a view to preventing the dissemination of data relating to the intimate details of the life of the persons who participate in the hearing.", "In the in camera hearing participate the parties and their representatives ... and, if necessary, witnesses, experts and translators.", "The in camera hearing is conducted in accordance with all procedural rules. The judgments in all cases are pronounced publicly.", "4. Data Act, 1992", "33. The relevant provisions of the Act provide:", "Article 23", "“ Personal information is a complex of documented or publicly acclaimed data about a person.", "The main personal data are ... state of health", "The sources of the documented personal information are the documents issued on the person ’ s request, signed by him or her, as well as data about a person collected by the State and municipal authorities, acting within their competence.", "The collection of data about a person without his or her permission is prohibited except in accordance with law.", "Article 31", "The State authorities and organisations, municipal and local authorities whose information system, retain data about citizens are obliged to ensure that they have an unrestricted access to this information, except in accordance with law, as well as to undertake to secure it from the unauthorised access.", "The access of unauthorised persons to information about another person, collected in accordance with law by the State authorities, organisations and officials is prohibited.", "... The necessary amount of data about citizens that can be lawfully received should be strictly limited and can be used only for lawful ends.", "Article 37", "The following official documents are exempt from the general rule of obligatory provision on the information requests:", "... confidential information;", "... information that concerns private life of citizens. ”", "5. Psychiatric Medical Assistance Act, 2000", "34. Article 6 of the Act insofar as relevant provides as follows:", "“ Members of medical staff ... who in connection with their work or studies became aware about a person ’ s mental disorder, his or her request for psychiatric aid or treatment in psychiatric establishments ... as well as other information concerning the mental state of a person, his or her private life, cannot disclose this information except in accordance with ... this Article.", "... Disclosure of information concerning the state of a person ’ s mental health and provision to him or her of psychiatric aid can take place without the person ’ s consent if:", "... 2) it is important for an inquiry, pre-trial investigation or trial, on a written request from ... a judge.", "The documents that comprise information concerning the state of a person ’ s mental health and provision to him or her of psychiatric aid must be stored in compliance with requirements which secure the confidentiality of this information. The provision of the originals of these documents and the making of copies can be carried out only in accordance with law. ”", "6. The Law of Ukraine “on the procedure for compensation of damage caused to the citizen by unlawful actions of bodies of inquiry, pre-trial investigation, prosecutors and courts”, 1994", "35. The relevant extract of the Law provides:", "Article 2", "“The right to compensation for damages in the amount and in accordance with the procedure established by this Law shall arise in the cases of:", "- acquittal by a court;", "- termination of a criminal case on grounds of an absence of event of a crime, absence of corpus delicti, or lack of evidence of the accused ’ s participation in the commission of the crime. ”", "THE LAW", "I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS", "1. Criminal case", "36. The Government pleaded non-compliance with the six-month rule and non-exhaustion of domestic remedies. They stated that the final decision in the criminal case against the applicant was given by the Desniansky Court on 21 December 2000 (i.e. more than six months before the application was lodged with the Court), which decision the applicant had failed to challenge in ordinary appeal proceedings. The Government maintained that the subsequent reversal of this decision could not be taken into account as it was effected in the course of the supervisory review. The applicant disagreed.", "37. The Court notes that on 26 February 2001, following the applicant ’ s request, the Presidium of the Chernigiv Regional Court overruled the above-mentioned decision of the Desniansky Court and recommenced the proceedings in the applicant ’ s criminal case. Subsequently, on 26 June 2002, the Desniansky Court delivered a new judgment in the case, which apparently replaced the one referred to by the Government and was upheld on appeal and by the cassation instance on 9 September 2002 and 13 December 2002 respectively. The Government have failed to advance any argument as to why the Court should disregard these proceedings (cf. Pavlyulynets v. Ukraine, no. 70767/01, §§ 41 and 42, 6 September 2005 ).", "38. The Court, therefore, dismisses this objection.", "2. Civil case", "39. The Government submitted that the applicant had failed to exhaust domestic remedies, in that he had never requested the trial or appellate courts to consider his case in private, which he was free to do under the domestic procedural law. The applicant considered this remedy ineffective.", "40. The Court notes that this objection is closely linked to the relevant complaints of the applicant under Articles 8 and 13 of the Convention. In these circumstances, it joins the preliminary objection to the merits of the applicant ’ s complaints.", "3. Conclusion", "41. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "42. The applicant complained that the unlawful search of his office and the disclosure at a court hearing of confidential information regarding his mental state and psychiatric treatment violated his rights guaranteed by Article 8 the Convention, which, insofar as relevant provides as follows:", "1. Everyone has the right to respect for his private ... life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime, ... ”", "A. Search of the applicant ’ s office", "1. The parties ’ submissions", "43. The Government, while accepting that the impugned search interfered with the applicant ’ s right to respect for his home, maintained however that, since the premises in issue were used by the applicant exclusively for business purposes, the State ’ s margin of appreciation was wider than in the case of a search of a dwelling. They further maintained that the interference was in accordance with law, namely Chapter 16 of the CCP.", "44. Although at the material time the search was authorised by a prosecutor, not a judge, the applicant nevertheless enjoyed a wide range of safeguards afforded by the CCP. In particular, the search had to be carried out in the presence of two witnesses and a person who occupied the premises or, in his/her absence, in the presence of an official from the relevant House Maintenance Authority.", "45. The Government submitted that the search pursued the legitimate aim of the prevention of crime and was necessary in a democratic society.", "46. The applicant countered these submissions, stating that the search of his office was neither lawful nor did it pursue any legitimate aim, as he had never committed the crimes imputed to him by the authorities.", "2. The Court ’ s assessment", "47. In so far as the Government maintained that the State had a wider margin of appreciation vis-à-vis searches of business premises compared to those of dwellings, the Court finds it unnecessary to embark on a discussion of this issue, the outcome of which would be of no relevance in the present case. It suffices for the Court to find that in any event (and this was common ground) the search of the applicant ’ s office amounted to an interference, within the meaning of Article 8 of the Convention, with his right to respect for his home (cf. Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251 ‑ B, § 30; Roemen and Schmit v. Luxembourg, no. 51772/99, § 64, ECHR 2003 ‑ IV; and Ernst and Others v. Belgium, no. 33400/96, § 109, 15 July 2003 ).", "48. The question remains whether this interference was justified under paragraph 2 of Article 8 and, more particularly, whether the measure was “in accordance with the law” for the purposes of that paragraph.", "49. The Court reiterates that the expression “in accordance with the law” in Article 8 § 2 of the Convention essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof ( mutatis mutandis, Elci and Others v. Turkey, nos. 23145/93 and 25091/94, § 697, 13 November 2003 ).", "50. In the instant case the Court notes, firstly, that the applicant was charged with abuse of power and forgery of official documents, i.e. offences punishable under the 1960 Criminal Code. To enable criminal offences to be detected, Chapter 16 of the CCP provides that searches may be carried out “if there are sufficient grounds to believe that the means of committing an offence ... and other items and documents important for the case are kept in certain premises”. The CCP contains safeguards against arbitrary interference by the authorities with the right to respect for home, including, inter alia, the obligation to serve the search warrant in advance on a person occupying the relevant premises and the prohibition on seizing any documents and items which do not directly relate to the case under investigation (paragraph 28 above).", "51. The Court observes, however, that on 28 August 2000 the Novozavodsky Court found that the impugned search “was conducted unlawfully” on account of the authorities ’ failure to comply with the above -mentioned statutory safeguards (paragraph 16 above). Thus, the prosecution officials, although aware of the applicant ’ s whereabouts, did not attempt to serve the search warrant on him. Furthermore, instead of selecting the evidence necessary for the investigation, they seized all documents from the office and certain personal items belonging to the applicant which were clearly unrelated to the criminal case.", "52. It is to be noted that the substance of this conclusion has never been overruled by higher courts, although this decision was subsequently quashed on other grounds ( paragraph 17 above). Moreover, the Government in their observations did not question these findings or produce any evidence proving otherwise.", "53. In these circumstances, the Court concludes that the interference in question has not been shown to be “in accordance with the law” and that there has accordingly been a violation of Article 8 on this ground. In view of this conclusion, the Court does not find it necessary to examine the issue of justification arising under this provision.", "B. Disclosure of confidential psychiatric information", "1. The parties ’ submissions", "54. The Government maintained that, although any request for confidential information regarding mental state or psychiatric treatment of a person normally constitutes an interference with one ’ s private life, in the present case there had been no such interference. They referred in this respect to the fact that the request in issue was made by the court, not by, for example, the media, and it was not aimed at the dissemination of the information obtained. The Government further maintained that the applicant himself had incited the court to undertake this measure in order to verify a document, adduced by him, the authenticity of which was regarded as doubtful.", "55. The applicant submitted that the requested information was irrelevant to the outcome of the trial before the Novozavodsky Court. He further stated that the measure in issue was in breach of the Constitution, which rendered it “unlawful” within the meaning of Article 8 of the Convention.", "2. The Court ’ s assessment", "a. Whether there was an interference", "56. The Court points out that both the storing by a public authority of information relating to an individual ’ s private life and the use of it amount to interference with the right to respect for private life secured in Article 8 § 1 of the Convention (cf. Rotaru v. Romania [GC], no. 28341/95, § 46, ECHR 2000 ‑ V).", "57. In the instant case, the domestic court requested and obtained from a psychiatric hospital confidential information regarding the applicant ’ s mental state and relevant medical treatment. This information was subsequently disclosed by the judge to the parties and other persons present in the courtroom at a public hearing.", "58. The Court finds that those details undeniably amounted to data relating to the applicant ’ s “private life” and that the impugned measure led to the widening of the range of persons acquainted with the details in issue. The measures taken by the court therefore constituted an interference with the applicant ’ s rights guaranteed under Article 8 of the Convention ( Z v. Finland, judgment of 25 February 1997, Reports of Judgments and Decisions 1997 ‑ I, § 71 ).", "b. Whether the interference was “in accordance with the law”", "59. The principal issue is whether this interference was justified under Article 8 § 2, notably whether it was “in accordance with the law” and “necessary in a democratic society”, for one of the purposes enumerated in that paragraph.", "60. The Court recalls that the phrase “in accordance with the law” requires that the measure complained of must have some basis in domestic law ( cf. Smirnova v. Russia, nos. 46133/99 and 48183/99, § 99, ECHR 2003 ‑ IX (extracts) ).", "61. It is to be noted that the Court of Appeal, having reviewed the case, came to the conclusion that the first instance judge ’ s treatment of the applicant ’ s personal information had not complied with the special regime concerning collection, retention, use and dissemination afforded to psychiatric data by Article 32 of the Constitution and Articles 23 and 31 of the Data Act 1992, which finding was not contested by the Government (paragraph 25 above). Moreover, the Court notes that the details in issue being incapable of affecting the outcome of the litigation (i.e. the establishment of whether the alleged statement was made and the assessment whether it was libellous; compare and contrast, Z v. Finland, cited above, §§ 102 and 109), the Novozavodsky Court ’ s request for information was redundant, as the information was not “ important for an inquiry, pre-trial investigation or trial ”, and was thus unlawful for the purposes of Article 6 of the Psychiatric Medical Assistance Act 2000.", "62. The Court finds for the reasons given above that there has been a breach of Article 8 of the Convention in this respect. It does not consider it necessary to examine with respect to this measure whether the other conditions of paragraph 2 of that Article were complied with.", "III. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION", "63. The applicant complained that the authorities ’ refusal to pay him damages under the “compensation for unlawful criminal prosecution” scheme contravened the presumption of innocence. He relied on Article 6 § 2 of the Convention, which provides as follows:", "“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”", "64. The Government maintained that there was no violation of Article 6 § 2, as the prosecution ’ s decision to close the case on non-exonerating grounds was tested and ultimately upheld by the courts. The applicant disagreed.", "65. The Court reiterates that the Convention must be interpreted in such a way as to guarantee rights that are practical and effective as opposed to theoretical and illusory (e.g., Multiplex v. Croatia, no. 58112/00, § 44, 10 July 2003); that also applies to the right enshrined in Article 6 § 2 (see Allenet de Ribemont v. France, judgment of 10 February 1995, Series A no. 308, § 35).", "66. The Court recalls that, according to its settled case-law, neither Article 6 § 2 nor any other provision of the Convention gives a person “charged with a criminal offence” a right to reimbursement of his costs or a right to compensation for lawful detention on remand where proceedings against him have been discontinued ( Narciso Dinares Peñalver v. Spain ( dec. ), no. 44301/98, 23 March 2000; also Englert v. Germany, judgment of 25 August 1987, Series A no. 123-B, § 36, and Sekanina v. Austria, judgment of 25 August 1993, Series A no. 266-A, § 25 ). Merely refusing compensation does not therefore in itself infringe the presumption of innocence ( mutatis mutandis, the previously cited Nölkenbockhoff and Minelli judgments, § 36 and §§ 34/35 respectively ).", "67. However, the Court ’ s case-law also establishes that the presumption of innocence is infringed if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty without his having been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty. The scope of Article 6 § 2 is moreover not limited to pending criminal proceedings but extends to judicial decisions taken after a prosecution has been discontinued (see Minelli v. Switzerland, judgment of 25 March 1983, Series A no. 62; the previously cited Englert judgment; Nölkenbockhoff v. Germany, judgment of 25 August 1987, Series A no. 123-C; and Capeau v. Belgium, no. 42914/98, § 25, ECHR 2005 ‑ I ) or after an acquittal (see, in particular, the previously cited Sekanina judgment; Rushiti v. Austria, no. 28389/95, 21 March 2000; Lamanna v. Austria, no. 28923/95, 10 July 2001; O. v. Norway, no. 29327/98, ECHR 2003-II; and Hammern v. Norway, no. 30287/96, 11 February 2003).", "68. The Court is, therefore, required to determine whether in the present case the outcome of the criminal proceedings against the applicant and the subsequent rejection of his claim for compensation for unlawful prosecution allowed doubt to be cast on the applicant ’ s innocence, although he had not been proved guilty.", "69. The Court notes that the applicant ’ s case was terminated at the pre-trial stage by the investigative authorities, on the ground that the minor character of the offence committed by the applicant made its prosecution impractical. The domestic courts, having reviewed this decision, agreed that the (unnamed) evidence in the case file was sufficient to conclude that the applicant had committed an offence as well as the minor character of that offence.", "70. It is true that the voicing of suspicions regarding an accused ’ s innocence is conceivable as long as the conclusion of criminal proceedings has not resulted in a decision on the merits of the accusation ( Sekanina, cited above, § 30). However, in its decision of 26 December 2001, the Novozavodsky Court rejected the applicant ’ s compensation claim with reference to the fact that the criminal proceedings against him had been discontinued on non-exonerating grounds (see paragraph 28 above). This decision was confirmed by the Court of Appeal after the applicant ’ s complaint against the decision to discontinue the criminal proceedings on non-exonerative grounds had finally been rejected (see § 19 above). The Court does not consider it necessary to determine in the present case whether in principle the refusal to award compensation on the basis that the criminal proceedings were terminated on “non-exonerative” grounds in itself violates the presumption of innocence. It notes that in the present case the court decisions terminating the criminal proceedings against the applicant were couched in terms which left no doubt as to their view that the applicant had committed the offence with which he was charged. In particular, the Desniansky Court indicated that the investigation case file contained sufficient evidence to establish that the applicant had forged a notarial document and had wittingly carried out an invalid notarial action, its only reason for discontinuing the proceedings being the impracticality of prosecuting an insignificant offence. This decision was upheld by the Court of Appeal and the Supreme Court rejected the applicant ’ s request for leave to appeal in cassation. In the Court ’ s view, the language employed by the Desniansky Court was in itself sufficient to constitute a breach of the presumption of innocence. The fact that the applicant ’ s compensation claim was rejected on the basis of the findings reached in the criminal proceedings merely exacerbated this situation. Although the Desniansky Court reached its conclusion after a hearing held in the presence of the applicant, the proceedings before it were not criminal in nature and they lacked a number of key elements normally pertaining to a criminal trial. In that respect, it cannot be concluded that the proceedings before that court resulted, or were intended to result in the applicant being “proved guilty according to law”. In these circumstances, the Court considers that the reasons given by the Desniansky Court, as upheld on appeal, combined with the rejection of the applicant ’ s compensation claim on the basis of those same reasons, constituted an infringement of the presumption of innocence.", "71. In conclusion, there has been a violation of Article 6 § 2 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "72. The applicant complained under Article 13 of the Convention of the alleged lack of effective remedies in respect of the violations of Article 8.", "73. Article 13 of the Convention provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "1. The parties ’ submissions", "74. The Government maintained that the applicant could have challenged the lawfulness of the search before the higher prosecutor or the court at the trial. If he were acquitted of the charges, he would have had a possibility to receive compensation for unlawful prosecution. As regards the court ’ s request for information concerning his psychiatric history, the applicant, according to the Government, could have raised this issue in his appeal against the judgment.", "75. The applicant considered these remedies ineffective.", "2. The Court ’ s assessment", "a. General principles", "76. The Court recalls that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision Kaya v. Turkey, judgment of 19 February 1998, Reports of Judgments and Decisions 1998 ‑ I, pp. 329-30, § 106).", "77. The scope of the Contracting States ’ obligations under Article 13 varies depending on the nature of the applicant ’ s complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law (cf. Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI). The existence of such a remedy must be sufficiently certain not only in theory but also in practice, failing which it will lack the requisite accessibility and effectiveness (see, inter alia, Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002-VIII).", "b. The search", "78. Insofar as the Government invoked the possibility to seek reimbursement through the compensation for unlawful prosecution scheme, the Court does not consider that this procedure is pertinent to the instant case ( Afanasyev v. Ukraine, no. 38722/02, § 77, 5 April 2005 ). It notes, in particular, that the applicant ’ s claim lodged to this effect was rejected precisely on the ground that his criminal case had been terminated on non-exonerating grounds.", "79. As regards the possibility of challenging the lawfulness of the search during the trial, it should be noted that, as was indicated above as regards Article 6 § 2 of the Convention, the applicant ’ s case has never been considered on the merits. It was terminated at the pre-trial stage and the subsequent judicial review concerned purely procedural matters related to the investigator ’ s closing of the criminal case on the given grounds. Therefore, these proceedings did not and could not include the assessment of the lawfulness of the particular investigative actions.", "80. The Court further notes that the applicant could have applied to a higher prosecutor in order to have the search of his office declared unlawful. The Court recalls that the “authority” referred to in Article 13 does not necessarily have to be a judicial authority, but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective ( Kudła, cited above, § 157). In the present case, however, the Court notes that, even assuming that the prosecutor possessed the required independence, this remedy could not possibly have afforded any relief to the applicant ( paragraph 30 above).", "81. Accordingly, the Court holds that in the present case there has been a violation of Article 13 of the Convention in that the applicant had no domestic remedy whereby he could enforce his right to respect for his home as guaranteed by Article 8 of the Convention.", "c. The disclosure of the psychiatric information", "82. The Government in their preliminary objections referred to the applicant ’ s right to request the court to examine his case in private. The Court observes that the domestic law does not provide that there should necessarily be a party ’ s request for an in camera hearing of the case; the trial court can order it of its own motion (paragraph 32 above). The law does, however, oblige the authorities to take all possible measures to protect the private life of the individuals from unnecessary interference (paragraph 29 above).", "Moreover, the presence of the public in the courtroom during the judge ’ s reading out of the information received from the psychiatric hospital was only one of the elements affecting the applicant ’ s private life. In particular, such a request, even if granted, could neither have secured the confidentiality of the information disclosed to the parties and their representatives at the hearings nor limited access to the case file.", "83. As to the possibility of raising the relevant complaint before the appellate instance, the Court notes that the applicant has successfully availed himself of this remedy, which, however, proved ineffective in so far as the finding of unlawfulness did not result in the discontinuation of the disclosure of confidential psychiatric data in the court case file or any award to the applicant of compensation for damages suffered as the result of the unlawful interference with his private life.", "84. In view of these considerations, the Court dismisses the Government ’ s preliminary objection and finds that there has been a violation of Article 13 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "85. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "86. The applicant claimed 232,400 euros (EUR) in respect of pecuniary and non-pecuniary damage.", "87. The Government considered this amount exorbitant and unsubstantiated.", "88. The Court ’ s case-law establishes that there must be a clear causal link between the damage claimed by the applicant and the violation of the Convention (amongst other authorities, Barberà, Messegué and Jabardo v. Spain (former Article 50), judgment of 13 June 1994, Series A no. 285 ‑ C, pp. 57-58, §§ 16-20; Cakıcı v. Turkey, judgment of 8 July 1999, ECHR 1999-IV, § 127). The Court notes that the damage resulting from the unlawful search of the applicant ’ s apartment was established on 28 August 2000 by the Novozavodsky Court. On that basis the Court finds it equitable to award the applicant EUR 2,315 for pecuniary damage. The Court further finds it appropriate to make an award of EUR 3,000 for non-pecuniary damage.", "B. Costs and expenses", "89. The applicant did not submit any claim under this head within the set time-limit; the Court therefore makes no award in this respect.", "C. Default interest", "90. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "A. The circumstances of the case", "4. The applicant was born in 1957 and lives in France.", "5. On 5 February 1996 the applicant ’ s wife filed a divorce petition with the appropriate tribunal de grande instance. In an interlocutory decision of 26 March 1996, the family-affairs judge, finding that the couple were not reconciled, gave the petitioner leave to bring divorce proceedings against her husband and ruled on the interim arrangements. The judge granted parental responsibility for the children, who were born in 1985 and 1988, jointly to their father and mother, decided that they should habitually live with their mother and made provisions for the applicant ’ s right of visiting contact. The judge also ordered a welfare report together with a medical and psychological examination of all the members of the family. The welfare report, filed on 9 July 1996, revealed that the applicant was present and active as a father and had developed a sound relationship with his children. It recommended that he be granted broad rights of visiting and staying contact.", "6. On 25 September 1996 the applicant ’ s wife brought divorce proceedings against him before the same tribunal de grande instance. She alleged that her husband had repeatedly subjected her to acts of violence and that he had chronic alcoholism.", "7. In a judgment of 4 September 1998, the tribunal de grande instance granted the divorce on grounds of fault by the applicant alone, confirmed the interim arrangements indicated in the interlocutory decision, acknowledged the father ’ s poor financial situation and exempted him from child maintenance obligations. It ruled as follows:", "“The wife has produced duly substantiated medical certificates attesting to the reality of the acts of violence to which she has been subjected and of which the only plausible origin lies in her husband ’ s behaviour towards her. Her husband, as she has also shown, suffers from alcoholism, and this may reasonably be said to constitute the primary cause of his behaviour.", "These acts imputable to the husband constitute serious and repeated breaches of his marital duties and obligations and have led to an irretrievable breakdown in the marriage. It is appropriate to grant the petition and pronounce the divorce on grounds of fault by the husband alone.", "...”", "8. The applicant appealed against the judgment before the appropriate Court of Appeal, requesting that the divorce be granted on grounds of fault by both spouses and seeking a more extensive right of contact with his children. As to the grounds of divorce, he alleged that he had been subjected to aggressive behaviour and harassment by his wife and disputed her claim that he was an alcoholic. In this connection, he principally requested the exclusion from the case file of a document from his medical records that his wife had, according to him, obtained by fraudulent means and on which she had relied to show that he was an alcoholic. The document in question was an operation report of 2 April 1994 concerning a splenectomy which the applicant had undergone. It had been sent on 20 April 1994 in a letter from Doctor C. ( a specialist in digestive surgery) to the applicant ’ s general practitioner. The applicant claimed, however, that he had never provided his wife with a copy of the document, nor had he released the doctor who signed it from his duty of medical confidentiality in that connection. As to the ancillary arrangements decided by the court below, he considered that the restrictions on his right of contact were unjustified, arguing that the welfare report and the additional documents he had produced proved his attachment to his children and the guarantees he was able to give in order to receive them. The applicant ’ s ex-wife, for her part, reiterated the complaints she had made before the court below. She also denied that she had obtained a medical document fraudulently, alleging that her husband had entrusted her with “the management of paperwork ”, rejected any accusation of violence, and considered that the applicant ’ s demands, in respect of his right of contact, were premature as he was living with his parents and had not yet overcome his drink problem.", "9. In a judgment of 21 February 2000, the Court of Appeal upheld the provisions of the judgment appealed against as regards the granting of the divorce, the exercise of parental responsibility and the children ’ s habitual residence, giving the following reasoning:", "“– The granting of the divorce :", "...", "Whilst certain testimony she has produced, concerning manifest drunkenness and resulting violent behaviour on the part of her husband at family gatherings, is very dated and not useful for the proceedings, she has nevertheless submitted to the Court testimony from two of his sisters concerning Mr [L.L.] ’ s alcohol addiction and his resulting aggressiveness.", "Mr [L.L.] ’ s alcoholism has been confirmed by medical documents and in particular a letter of 20 April 1994 to his general practitioner from Doctor C. – and there is no evidence to suggest that it was obtained fraudulently by his wife – referring to ‘ a bout of acute pancreatitis with a background of alcoholism ’ and indicating that the consequences of the pancreatitis could only be brought under control if the subject gave up alcohol.", "Mrs [L.L.] also produced medical certificates dated 26 July 1994, 2 September 1994, 15 September 1994 and 2 February 1996 in which various injuries were recorded – in particular a perforated eardrum – and from which violent acts by the husband must necessarily be inferred, as no other explanations have been suggested by Mr [L.L.].", "This conduct ... constitutes a serious and repeated breach of marital duties, leading to an irretrievable breakdown in the marriage, and the judgment appealed against must accordingly be upheld in so far as it granted the divorce petition filed by the wife. ...”", "10. As regards the applicant ’ s request for the extension of his rights of visiting and staying contact, the court considered it necessary to order, as an interlocutory measure, a medical and psychological report on the family group. After the expert ’ s report had been filed, on an undetermined date, the Court of Appeal, on 7 June 2001, granted the applicant ’ s request and accorded him a right of contact with which he was satisfied.", "11. On 14 June 2000 the applicant wrote a letter to the President of the Court of Cassation in which he expressed his intention to appeal on points of law against the judgment of 21 February 2000, considering that the “legislation [had ] not been correctly applied”. As regards the medical documents produced in the case, he criticised the courts that had ruled on his case for using those documents in spite of his protests, and added that such a practice was in breach of the Criminal Code since “ judges [could not] require hospital records to be produced without risking the disclosure of facts protected by professional confidentiality ”.", "12. For the purposes of his appeal on points of law, the applicant filed a request for legal aid with the Court of Cassation ’ s Legal Aid Board. His request was rejected by the Board on 10 May 2001, then by the President of the Court of Cassation on 11 July 2001, on the ground that “it [did] not appear from an examination of the material in the case file that a ground of appeal on points of law [could] be argued with any real prospect of success”.", "13. In the meantime, following a report of ill-treatment filed by the applicant with the Department for Prevention and Social Services, the children ’ s judge at the tribunal de grande instance, on 25 October 2000, initiated the procedure providing, in respect of the couple ’ s children, for a measure of guidance in the home community. That measure was extended on 4 December 2001 for a further one-year period.", "B. Relevant domestic law and practice", "14. At the material time the relevant provisions of the Civil Code read as follows:", "Article 9", "“Everyone has the right to respect for his private life. ...”", "Article 248", "“The proceedings on the cause of action, the consequences of the divorce and on the interim arrangements shall not be public.”", "Article 259", "“ Facts relied on as grounds for divorce or as a defence to a divorce petition may be established by any type of evidence, including confessions. ”", "Article 259-1", "“ A spouse may not produce in the proceedings any letters exchanged between his or her spouse and a third party that he or she may have obtained by duress or fraud .”", "Article 259-2", "“ Reports drawn up at the request of a spouse shall be declared inadmissible as evidence in the event of trespass on domestic premises or unlawful interference with private life .”", "15. Articles 259 and 259-1 of the Civil Code were amended by Law no. 2004-439 of 26 May 2004, which came into force on 1 January 2005. Those Articles now read as follows:", "Article 259 (as amended)", "“ Facts relied on as grounds for divorce or as a defence to a divorce petition may be established by any type of evidence, including confessions. However, evidence from descendants may never be heard in respect of the complaints submitted by the spouses .”", "Article 259-1 (as amended)", "“ A spouse may not produce in the proceedings any evidence that he or she may have obtained by duress or fraud .”", "16. In divorce proceedings, evidence of the complaints submitted is unrestricted and may be adduced by any means, unless it is shown that it has been obtained by duress or fraud (Article 259-1 of the Civil Code) or that reports drawn up at the request of a spouse have given rise to unlawful interference with private life or trespass on domestic premises (Article 259 ‑ 2 of the Civil Code).", "In this connection, where, for the purposes of adducing preliminary evidence of a spouse ’ s breach of his or her duty of fidelity, a report establishing adultery has been drawn up by a bailiff, with judicial authorisation, at the domicile of the other party to the adulterous relationship, such an act constitutes lawful interference with private life (Court of Cassation, Second Civil Division, 5 June 1985, Bulletin civil ( Bull. civ. ) no. 111). Similarly, a report drawn up without judicial authorisation, at the request of the husband, on premises of which he has possession, may be taken into consideration by the tribunals of fact (Court of Cassation, Second Civil Division, 14 December 1983). However, having regard to Article 9 of the Civil Code, the Court of Cassation has held that where a person has been spied on, watched and followed for several months, interference with that person ’ s private life, by a private detective acting on instructions to identify aspects of his or her way of life that might support a request for the discontinuance of a compensatory financial provision paid by the person ’ s former spouse, is disproportionate to the aim pursued (Court of Cassation, Second Civil Division, 3 June 2004, Bull. civ. no. 273).", "Conversely, having regard to Article 259-1 of the Civil Code, a court of appeal which held, on the basis of the evidence which it alone was empowered to assess, that a relationship detrimental to a husband carried on between his wife and a third party could be established by e-mails and by a private investigation report, rightly inferred therefrom, absent any evidence of duress or fraud, that serious and repeated breaches of marital duties were thus substantiated (Court of Cassation, First Civil Division, 18 May 2005, Bull. civ. I no. 213). In the same vein, a private investigation report is admissible when corroborated by other evidence such as comments written in a diary (Court of Cassation, Second Civil Division, 3 March 1983, unreported) or witness statements. As regards letters exchanged between one of the spouses and a third party within the meaning of the former Article 259-1 of the Civil Code, a court, in order to declare inadmissible letters from a wife to third parties, together with her diary, is not entitled to find that their production breached her privacy unless the husband obtained those documents by fraud or duress (Court of Cassation, Second Civil Division, 29 January 1997, Juris-classeur périodique 1997, Bull. civ. II no. 28). It has been held, however, that a diary should be declared inadmissible on the basis of Article 8 of the Convention ( Caen tribunal de grande instance, judgment of 9 June 2000).", "17. The relevant provisions of the new Code of Civil Procedure read as follows:", "Article 1440", "“ Registrars and custodians of public registers shall be required to issue a copy or an extract therefrom to any applicant, subject to the exercise of their rights. ”", "Article 1441", "“ In the event of refusal or where no response is obtained, the president of the tribunal de grande instance, or, where the refusal emanates from a registrar, the president of the court to which his office is attached, seised by way of application, shall adjudicate, after hearing representations from the applicant and the registrar or custodian, or after giving them notice to appear.", "Appeals shall be lodged, examined and determined as in non-contentious matters. ”" ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "18. The applicant complained that medical documents concerning him (operation report of 2 April 1994) had been produced and used before the court, without his consent and without a medical expert having been appointed for such purpose. He alleged that this had entailed a breach of professional confidentiality and serious and unjustified interference with his right to respect for his private life. He relied on Article 8 of the Convention, of which the relevant parts read as follows:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "19. The Government disputed this argument.", "A. Admissibility", "20. The Government raised two objections to the admissibility of the application.", "Firstly, they considered that the applicant had not submitted his complaints, either expressly or in substance, before the domestic courts. They did not deny that the complaint related to the protection of private and family life, within the meaning of Article 8 of the Convention, but observed that the applicant had simply relied in his grounds of appeal, in an elusive and laconic manner, on the fraudulent production of a medical document and a breach of medical confidentiality in order to justify the exclusion of the document in question. In those circumstances, having regard to the elusive, summary and indirect nature of the applicant ’ s arguments before the Court of Appeal and the Court of Cassation, the Government submitted, as their principal argument, that the applicant had failed to exhaust domestic remedies. In the alternative, the Government considered that the applicant had lost his victim status in the course of the proceedings. They observed that the applicant, in his presentation of the facts to the Court, had claimed that the production of the medical documents in issue had been decisive as regards his right of contact with his children and his line of argument was thus no longer going to the reclassification of the grounds of divorce as mutual fault. In this connection the Government pointed out that the Court of Appeal, in its judgment of 21 February 2000, before ruling on the request for an extension of the applicant ’ s right of contact, had ordered a medical and psychological report on the couple and their two children, and that, in the meantime, the applicant had still benefited from the ancillary arrangements decided by the courts below. Consequently, the applicant could not claim to have been deprived of the right to see his children. Lastly, and above all, following the filing of the expert ’ s report, the Court of Appeal had granted the applicant ’ s request in its judgment of 7 June 2001. In those circumstances, the consequences of the production of the operation report had thus, in any event, been negated. Accordingly, the applicant could no longer claim victim status at this stage.", "21. The applicant argued that it could be seen from the facts of the case, which the Government had not disputed, that in his appeal he had requested a ruling disallowing the production in the proceedings of a medical document that in his view constituted interference with his private life. His application for legal aid for the purposes of lodging an appeal on points of law having been dismissed, he considered that he could not be criticised for failure to exhaust all available domestic remedies.", "22. The Court reiterates that the purpose of Article 35 § 1 of the Convention is to afford Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. Nevertheless, that rule must be applied “with some degree of flexibility and without excessive formalism”; it is sufficient that the complaints intended to be made subsequently in Strasbourg should have been raised, “at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law”, before the national authorities (see Castells v. Spain, 23 April 1992, §§ 27 et seq., Series A no. 236; Akdivar and Others v. Turkey, 16 September 1996, § § 65 ‑ 69, Reports of Judgments and Decisions 1996 ‑ IV; and Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999 ‑ I ).", "The Court must therefore ascertain whether, having regard to all the circumstances of the case, the applicant may be regarded as having done everything that could reasonably be expected of him to exhaust domestic remedies.", "23. The Court first notes that his request for legal aid, filed with the Court of Cassation ’ s Legal Aid Board, was rejected first by the Board and then by the President of that court on the ground that “it [did] not appear from an examination of the material in the case file that a ground of appeal on points of law [could] be argued with any real prospect of success ”. Consequently, the applicant did not lodge an appeal with the Court of Cassation, which is nevertheless one of the remedies that should in principle be exhausted in order to comply with Article 35 of the Convention (see Civet v. France [GC], no. 29340/95, § 41, ECHR 1999 ‑ VI ). However, taking into account the applicant ’ s lack of resources and the fact that legal representation was mandatory (in the context of divorce proceedings), the Court considers that the applicant cannot be accused of having failed to exhaust domestic remedies by discontinuing the appeal procedure after the decision dismissing his request (see, mutatis mutandis, Gnahoré v. France, no. 40031/98, § § 46-48, ECHR 2000 ‑ IX ).", "The Court further observes that, in his grounds of appeal, the applicant requested that the correspondence of 20 April 1994 between Doctor C. and his general practitioner, containing the operation report of 2 April 1994, should be declared inadmissible as evidence on the ground that it had been obtained fraudulently by his wife. He further indicated that he had never given her a copy of that report, nor had he released the doctor who signed it from his duty of medical confidentiality in that connection. Whilst it is true that the complaint thus submitted before the Court of Appeal was premised, in its first limb, on an allegation of fraud on the part of his wife, the second limb of the complaint nevertheless raised issues concerning release from a duty of medical confidentiality (which the applicant denied having granted for that purpose) and therefore relating to the admission in evidence of a document protected by such confidentiality. It was, moreover, in this vein that the applicant wrote to the President of the Court of Cassation in a letter of 14 June 2000 complaining that “judges [could] not require hospital records to be produced without risking the disclosure of facts protected by professional confidentiality ”. Respect for the confidentiality of medical data is of fundamental importance to the protection of a patient ’ s privacy (see, in this connection, Z v. Finland, 25 February 1997, § 95, Reports 1997 ‑ I ).", "In those circumstances, it appears that the complaint raised by the applicant before the Court under Article 8 of the Convention was inherent in his pleadings before the Court of Appeal. Accordingly, the Court considers that the applicant submitted before that court, “at least in substance”, his complaint under Article 8 of the Convention. This preliminary objection should therefore be dismissed.", "24. As to the plea of inadmissibility based on the applicant ’ s alleged loss of victim status, the Court reiterates that the word “ victim ”, in the context of Article 34 of the Convention, denotes the person or persons directly or indirectly affected by the alleged violation of the Convention or its Protocols. The question whether or not the applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention ( see Burdov v. Russia, no. 59498/00, § 30, ECHR 2002 ‑ III ) and a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention complained of by the applicant (see, for example, Eckle v. Germany, 15 July 1982, §§ 66 et seq., Series A no. 51; Amuur v. France, 25 June 1996, § 36, Reports 1996 ‑ III; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999 ‑ VI; and Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001 ‑ X ).", "25. In the present case, the Court observes that the gravamen of the applicant ’ s grievances lies not in the decision as to visiting and staying contact in respect of his children, as the Government have contended, but in the production and use by the judge of medical data concerning him, in breach of his right to respect for his private life. This is clear from the presentation of the applicant ’ s complaints as set out in his application. That finding is sufficient for the Court to dismiss the Government ’ s preliminary objection.", "26. The Court concludes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It moreover considers that no other ground for declaring it inadmissible has been established and therefore declares it admissible.", "B. Merits", "1. Whether there was interference with the applicant ’ s right to respect for his private life", "27. The Government have sought to show, first of all, that the production and use of the impugned document did not entail any interference with the applicant ’ s private and family life.", "28. They pointed out that in the area of family law, and divorce proceedings in particular, the judge has to deal with evidence relating to the private and family life of the parties. Refusal by a judge to give consideration to such evidence, on the pretext that it might interfere with the private and family life of the parties, would be tantamount to limiting their right to a hearing, because certain material evidence, or evidence capable of influencing the outcome of the dispute, as regards, for example, the determination of arrangements for the exercise of parental responsibility, would be declared inadmissible. This would have the effect of endangering family life and the stability of children. In this connection the law provided that “[f] acts relied on as grounds for divorce or as a defence to a divorce petition [might] be established by any type of evidence” (Article 259 of the Civil Code), as long as such evidence had been obtained honestly. The Government thus emphasised the fact that to refuse evidence relating to private life would, in this sense, be contrary to the applicable legislation. They cited in this connection a judgment delivered on 29 January 1997 by the Court of Cassation, which held that a court of appeal was wrong to declare inadmissible letters from a wife to third parties and her diary, on the ground that the production of such evidence would interfere with her private life, without first considering whether the husband had obtained those documents by duress or fraud.", "29. The Government further observed that there were specific guarantees under French law concerning the use of data relating to the private life of parties in proceedings of this kind. They observed that medical data produced in connection with divorce proceedings were not made known to the public or to third parties since, firstly, “[t]he proceedings on the cause of action, the consequences of the divorce and on the interim arrangements [ were] not ... public”, this being an exception to the principle of public proceedings (Article 248 of the Civil Code), and, secondly, a divorce could be validly established vis-à-vis third parties simply by producing an extract from the decree containing only its operative provisions (in accordance with former Article 1148 of the Code of Civil Procedure, now provided for in Article 1082-1 of the new Code of Civil Procedure). The judge always had the possibility, in the event of duress or fraud, of declaring inadmissible any documents of a personal nature.", "30. Lastly, the Government submitted that the significance of the production of the disputed document had to be kept in perspective, since it had been only one of many items on which the Court of Appeal had based its decision and had not been decisive, as the Court of Appeal had pointed out that there was still some uncertainty as to the evolution of the applicant ’ s condition: he claimed he had given up alcohol but had not shown that he was undergoing specialised treatment. Accordingly, the Government considered that the production and use of the impugned document did not constitute interference with the applicant ’ s private life, in so far as it had not been shown that his ex-wife had obtained it by duress or fraud, nor that there had been a breach of medical confidentiality.", "31. The applicant considered that the Court of Appeal had failed in its duty to ensure that personal data as fundamental as that resulting from medical observations could not be diverted from its initial purpose and cause prejudice to the person complaining of a breach of his or her privacy, in so far as that court had, in justifying its decision, expressly referred to the medical documents in question. He regarded this as interference with his right to respect for his private life.", "32. The Court observes, first of all, that it has not been disputed by either of the parties that the information contained in the medical document in question relates to the applicant ’ s private life, since that information, being of a personal and sensitive nature, directly concerns his health. The Court notes in this connection that the information in question, which is of a medical nature, constitutes personal data as defined in the Council of Europe ’ s 1981 Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (no. 108).", "33. The Court further notes that the Court of Appeal partly based its decision on the detailed observations to be found in the operation report of 2 April 1994, reproducing the passages that it considered relevant. By doing so, it disclosed and made public information concerning the applicant ’ s health and therefore his private life. In this connection, the Court notes that the domestic law of the respondent State, as the Government rightly pointed out, affords specific guarantees in respect of the use of data relating to the private life of parties in divorce proceedings: such proceedings are not public, being an exception to the principle of publicity, and the copy of the divorce decision which is valid vis-à-vis third parties contains only the operative provisions (see paragraph 2 9 above). However, under Articles 1440 and 1441 of the new Code of Civil Procedure, concerning the issuance of copies of official documents and registers, any person may, without having to prove a particular interest, request a copy of a judicial decision (judgments and other decisions of upper or lower courts ) in civil, employment, welfare or commercial matters, from the registry of the relevant court, which will be required to provide that copy or extract.", "34. There is therefore no doubt, in the Court ’ s view, that the admissibility and use by the judge of the above-mentioned medical document in evidence constituted interference with the applicant ’ s right to respect for his private life as secured by Article 8 § 1 of the Convention. It remains to be ascertained whether the interference was justified in the light of paragraph 2 of that Article.", "2. Whether the interference was justified", "(a) “In accordance with the law”", "35. Even supposing that there had been interference, the Government, with regard first of all to the condition of foreseeability, observed that under Articles 259 and 259-3 of the Civil Code evidence was unrestricted, meaning that any document, even if it came from medical records, could be produced and used except in the event of duress and fraud. Moreover, they noted that the impugned document and the factual argument based thereon had been lawfully submitted in the proceedings and that the applicant had been given the opportunity of presenting his observations as to their significance in the dispute.", "36. The applicant acknowledged that Article 259-1 of the Civil Code, as worded at the material time, might imply that a document concerning a party ’ s private life was admissible. Apart from the fact that the information contained in the letter of 20 April 1994 was of a medical nature, the applicant noted that there had also been a misappropriation of his private correspondence with his doctor, which clearly fell outside the scope of the “paperwork” that he said he had entrusted to his ex- wife.", "37. The Court takes note of the parties ’ agreement as to the fact that the interference in question was “in accordance with the law”. The legal basis for the interference lies in the gathering of evidence in divorce proceedings, which is governed by special legal rules under Articles 259 et seq. of the Civil Code (see paragraphs 14-16 above). The Court finds no evidence to suggest that the measure in question was not compliant with domestic law or that the effects of the relevant legislation had not been sufficiently foreseeable to satisfy the quality requirement inherent in the expression “in accordance with the law”, within the meaning of Article 8 § 2.", "(b) Legitimate aim", "38. The Government considered that this interference could be regarded as satisfying at least two of the legitimate aims provided for in Article 8 § 2 of the Convention. The family-affairs judge had certainly been required to take account of the protection of the rights and freedoms of others, because the applicant ’ s alcoholism had been considered as part of the cause of the violence he had been inflicting on his wife at the time, and the judge had also had a duty to protect the health and morals of the children, in respect of whom a right of visiting and staying contact had been granted to their father.", "39. The applicant, for his part, considered that the interference with his private life had not pursued any legitimate aim.", "40. The Court considers, in view of the circumstances of the case, that the aim of the impugned measure was to protect the rights of the applicant ’ s wife, who was seeking to establish a correlation between her husband ’ s aggressive behaviour and his alcohol dependence to support her petition for divorce on grounds of fault by her husband alone. Accordingly, the aim of the interference was to “protect the rights and freedoms of others”, namely the spouse ’ s right to produce evidence in order to succeed in her claims. Moreover, the Court need not examine the second aim alleged by the Government, the protection of the health or morals of the couple ’ s children, since, in any event, the existence of the first has shown that, in its principle, the impugned measure pursued a legitimate aim.", "(c) “Necessary in a democratic society”", "41. The Government lastly argued that the alleged interference had met the requirement of being necessary in a democratic society. They took the view that to find such documents inadmissible would prevent courts from ruling on situations that might present a risk for the health, morals or stability of other family members, especially where there were alcohol-related problems. They added that the fact of excluding documents obtained by duress or fraud fulfilled the State ’ s positive obligation under Article 8 of the Convention. The Government further indicated that the Court of Appeal had maintained the applicant ’ s right of contact in respect of his children pending the results of the expert ’ s report, and inferred from this that any interference would thus, in any event, have been proportionate. Lastly, they observed that such interference, when compared with that in Z v. Finland (cited above) and M.S. v. Sweden, ( 27 August 1997, Reports 1997 ‑ IV ), appeared far less significant and was circumscribed by the requisite safeguards.", "42. The applicant argued that, even supposing the interference had pursued a legitimate aim, the method used could not, in any event, be regarded as proportionate to the breach of his right to respect for his private life.", "43. In order to ascertain whether the impugned measure was “necessary in a democratic society”, the Court will consider, in the light of the case as a whole and having regard to the margin of appreciation enjoyed by the State in such matters, whether the reasons adduced to justify it were relevant and sufficient and whether the measure was proportionate to the legitimate aim pursued.", "44. The Court firstly reiterates that the protection of personal data, not least medical data, is of fundamental importance to a person ’ s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention, bearing in mind that respect for the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. Consequently, domestic law must therefore afford appropriate safeguards to prevent any communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 of the Convention (see Z v. Finland, cited above, § 95).", "45. The Court notes at the outset that the present case concerns civil proceedings in the area of divorce, which by definition are proceedings during which information on the intimacy of private and family life may be revealed and where it is in fact part of a court ’ s duty to interfere in the couple ’ s private sphere in order to weigh up the conflicting interests and settle the dispute before it. However, in the Court ’ s view, any unavoidable interference in this connection should be limited as far as possible to that which is rendered strictly necessary by the specific features of the proceedings and by the facts of the case (see, mutatis mutandis, Papon v. France (no. 1) (dec.), no. 64666/01, ECHR 2001 ‑ VI, concerning conditions of detention under Article 3 of the Convention, and H. v. France, no. 11799/85, Commission decision of 5 October 1988, unreported, concerning interference with the right to respect for family life in connection with an applicant ’ s detention).", "46. In the particular circumstances of the case, the Court does not find compelling the Government ’ s argument that the breach of the applicant ’ s right to respect for his private life was justified. Whilst the impugned measure may appear justified at first sight, it does not stand up to closer scrutiny. As the Government themselves have acknowledged (see paragraph 30 above), the production of the disputed document was not decisive in the granting of the divorce on grounds of fault by the applicant alone and was in fact only one of the items of evidence on which the domestic courts based their findings. The relevant domestic decisions referred, above all, to testimony concerning the applicant ’ s alcohol addiction and to the “duly substantiated” medical certificates referring to “the reality of the acts of violence to which [ the wife had] been subjected”, thus concluding that the acts attributable to the husband constituted serious and repeated breaches of marital duties and obligations which had led to an irretrievable breakdown in the marriage. In reality, it was only on an alternative and secondary basis that the domestic courts used the disputed medical document in justifying their decisions, and it thus appears that they could have declared it inadmissible and still reached the same conclusion. In other words, the impugned interference with the applicant ’ s right to respect for his private life, in view of the fundamental importance of the protection of personal data, was not proportionate to the aim pursued and was therefore not “necessary in a democratic society for the protection of the rights and freedoms of others”.", "47. Lastly, as the Court has already observed (see paragraph 33 in fine above), the domestic law does not afford sufficient safeguards in respect of the use of data relating to the private life of parties to proceedings of this kind, except for those guarantees referred to by the Government (see paragraph 29 above), and this a fortiori justifies strict scrutiny of the necessity of such measures within the meaning of Article 8 § 2 of the Convention.", "48. Accordingly, in the light of the foregoing, there has been a violation of Article 8 § 2 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "49. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "50. The applicant claimed 20,000 euros (EUR) in respect of alleged non-pecuniary damage. He presented a medical certificate dated 7 December 2005 indicating that his medical disorders “[had] been accentuated by his difficult family situation over the past few years”. As regards pecuniary damage, he explained that he was not in a position to evaluate or substantiate the losses he had actually sustained as a direct result of the violation of Article 8 of the Convention or to produce any supporting documents in this connection.", "51. The Government considered that these claims were manifestly excessive and bore no relation to the alleged grievance. They noted that the applicant had been unable to evaluate or substantiate the losses sustained and had provided no details as to the existence, nature or amount of the pecuniary damage claimed, nor as to its causal link with the alleged violation. As regards non-pecuniary damage, the Government considered that the production of the medical certificate was not capable of proving that damage with certainty.", "52. The Court fails, in any event, to find any causal link between the violation observed and the alleged pecuniary damage, and it dismisses this claim. It further considers that the finding of a violation constitutes sufficient just satisfaction for the non-pecuniary damage sustained.", "B. Costs and expenses", "53. The applicant pointed out that he had been granted legal aid in the proceedings before the French courts. However, he explained that he had incurred considerable costs for travel, correspondence and telecommunications, estimating the total amount at EUR 1,000. The applicant further indicated that, in the proceedings before the Court, he had been awarded an amount by the Council of Europe by way of legal aid, and he thus considered that there were no justifiable expenses.", "54. The Government submitted that the travel expenses could not give rise to compensation in the context of costs and expenses incurred before the domestic courts. Moreover, they noted that supporting documents had not been kept and inferred that the costs and expenses could not be duly substantiated.", "55. According to the Court ’ s case-law, in order for costs and expenses to be awarded, the applicant must establish that they were actually and necessarily incurred and reasonable as to quantum. In the present case, and having regard to the information in its possession and to the criteria set out above, the Court dismisses the claim for costs and expenses incurred in the domestic proceedings." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1975 and lives in the Cēsis District (Latvia).", "A. Background to the case", "6. On 16 June 1997 the applicant gave birth in the Cēsis District Central Hospital (a municipal enterprise, hereinafter “ the Cēsis hospital ”). Caesarean section was used, with the applicant ’ s consent, because uterine rupture had occurred during labour.", "7. In the course of that surgery the surgeon performed tubal ligation (surgical contraception) without the applicant ’ s consent.", "8. On 4 February 200 5, after her attempt to achieve an out-of-court settlement with the hospital had failed, the applicant initiated civil proceedings against the hospital, seeking to recover damages for the unauthorised tubal ligation. In December of 2006 her claim was upheld and she was awarded compensation in the amount of 10,000 Latvian lati for the unlawful sterilisation.", "B. Assessment of the quality of health care provided to the applicant", "9. On 19 February 2004 the director of the Cēsis hospital wrote to the Inspectorate of Quality Control for Medical Care and Fitness for Work ( hereinafter “the MADEKKI ” ), requesting it to “evaluate the treatment received by [the applicant] during childbirth in accordance with the legislation in force in 1997”. The MADEKKI initiated an administrative procedure on the following day. The administrative inquiry concerned the applicant ’ s health care and in particular the gynaecological and childbirth assistance she had been provided from 1996 to 2003. In the process of that inquiry the MADEKKI requested and received medical files from three different medical institutions, containing detailed information about the applicant ’ s health over that period.", "10. In April 2004 M.Z., a MADEKKI staff member, telephoned the applicant and informed her of the on-going inquiry. M.Z. invited the applicant to comment on the case, which she declined to do, referring the MADEKKI to her legal representative, Ms Olsena, instead. During the conversation M.Z. allegedly admonished the applicant for wanting to sue the hospital for damages, and told her that she herself was to blame for her sterilisation.", "11. On 7 May 2004 Ms Olsena asked the MADEKKI for information on the legal grounds for, and the factual circumstances of, the inquiry.", "12. On 14 May 2004 the MADEKKI issued a report concerning the medical treatment given to the applicant during childbirth in 1997. The report contained medical details about the applicant of a particularly private and sensitive character. It concluded that no laws had been violated during the applicant ’ s antenatal care or during childbirth. A summary of the findings of the report was sent to the director of the Cēsis hospital on 21 May 2004.", "13. On 18 May 2004 the MADEKKI answered Ms Olsena ’ s questions concerning the administrative inquiry, setting out its opinion on the legal basis for it and providing information on the steps that had been taken in the course of the inquiry.", "14. The applicant ’ s representative lodged a claim with the Administrative District Court, alleging that the MADEKKI had initiated the inquiry unlawfully, since in essence its purpose had been to help the Cēsis hospital to gather evidence for the impending litigation, which was outside the MADEKKI ’ s remit. It was also alleged that the MADEKKI had acted unlawfully in requesting and receiving information about the applicant ’ s health, as it had violated the applicant ’ s right to respect for her private life. That right had been further violated when the MADEKKI unlawfully transferred the applicant ’ s data to the Cēsis hospital. Lastly, the court was requested to annul an administrative act – the MADEKKI ’ s report – since its findings were erroneous. Compensation in the amount of 500 Latvian lati was requested in respect of non-pecuniary damage.", "15. On 12 May 2005 the Administrative District Court adopted a judgment by which it terminated the proceedings with regard to the request to annul the MADEKKI report, as in the court ’ s opinion the report did not create any specific rights or obligations for the applicant and thus could not be considered an administrative act, and dismissed the remainder of the application as ill- founded.", "16. Counsel for the applicant appealed and on 16 June 2006 the Administrative Regional Court adopted a judgment by which it upheld in full the first - instance court ’ s judgment and endorsed that court ’ s reasoning, essentially equating the activities of the MADEKKI with the provision of health care, which, according to domestic law, was a legitimate reason for gathering personal data.", "17. On 8 February 2007 the Senate of the Supreme Court dismissed an appeal on points of law lodged by the applicant, in which reference was made, inter alia, to Article 8 of the Convention and to the cases of Z v. Finland ( 25 February 1997, Reports of Judgments and Decisions 1997 ‑ I) and M.S. v. Sweden (27 August 1997, Reports of Judgments and Decisions 1997 ‑ IV).", "18. The Senate agreed with the lower courts that the MADEKKI report could not be considered an administrative act. It further considered that this report was not an action of a public authority ( faktiskā rīcība ) and thus was not amenable to review in administrative courts.", "19. It thus remained for the Senate to address the applicant ’ s claims that the MADEKKI ’ s actions in preparing the report had been unlawful. In this regard the Senate considered that the Medical Treatment Law gave the MADEKKI the right to examine the quality of medical care provided in medical institutions not only upon receiving a corresponding complaint from a patient but also when a request for such examination had been submitted by a medical institution, which had an obligation to protect the interests of the society so that, should any irregularities be found by the MADEKKI, they might be eliminated and their recurrence with respect to other patients avoided in the future.", "20. The Senate agreed with the applicant that the processing of sensitive data concerning her constituted an interference with her rights guaranteed by, inter alia, Article 8 of the Convention. The Senate then went on to summarise the findings of the Strasbourg Court in the two cases invoked by the applicant, emphasising in particular that the Convention left to the States a wide margin of appreciation in balancing the confidentiality of medical data and the necessity to preserve patients ’ confidence in the medical profession and in the health services in general.", "21. The Senate further held that both the Medical Treatment Law and the Personal Data Protection Law contained exceptions that permitted the MADEKKI to collect and process the otherwise confidential medical data. The former listed such exceptions explicitly (see paragraph 30 below), while the latter allowed processing of medical data for the purposes of medical treatment or the provision or administration of heath care services (see paragraph 2 8 below) or if processing of personal data was necessary for a system administrator to carry out his legal duties (see paragraph 2 9 below). The Senate continued as follows: “ according to [the law] the MADEKKI has a duty to control the quality of medical care. In order to carry out such control, the MADEKKI requires information about the patient and his care ”.", "22. The Senate concluded as follows:", "“Taking into account the aforementioned, the [Senate] finds that restrictions to a person ’ s private life connected to gathering and processing of sensitive personal data are provided for by law. When regulating this question, the legislator has already assessed the aim and proportionality of such restrictions, as well as has provided for safeguards against unjustified disclosure of the above-mentioned data. Consequently [the applicant ’ s] argument that the Regional Court ought to have assessed the aim and proportionality of the restriction is unfounded.", "Additionally the [Senate] considers that the Regional Court has correctly interpreted and applied the above-mentioned legal provisions and has come to the correct conclusion that the MADEKKI, in order to carry out the control of the quality of medical care, which it is competent to do, had a right to receive and process [the applicant ’ s] sensitive data without asking for her consent and that the MADEKKI has acted within its sphere of competence and in accordance with the provisions of the law concerning the processing of sensitive personal data. The MADEKKI used the information it had collected about [the applicant] in order to carry out its functions, namely, to control the quality of the medical care provided to [the applicant], while to the Cēsis hospital it only handed over its conclusions concerning the legality of the doctors ’ actions, which did not contain [the applicant ’ s] sensitive data. ”", "23. For these reasons the Senate decided to uphold the lower courts ’ decisions." ]

[ "II. RELEVANT NATIONAL LAW", "A. Legal regulation of the MADEKKI", "24. Section 10 of the Medical Treatment Law ( Ārstniecības likums ) at the relevant time provided that the MADEKKI was the institution responsible for monitoring the quality of medical care provided in medical institutions.", "25. The MADEKKI ’ s work at the relevant time was governed in more detail by its statute ( nolikums ), which had been approved by the Cabinet of Ministers. The statute provided that the MADEKKI was a government institution, whose main functions were to inspect and monitor the professional quality of health care in medical institutions irrespective of their ownership status (paragraph 1). Paragraph 3 of the statute listed the principal functions of the MADEKKI, such as to examine complaints in order to protect the rights of patients (paragraph 3.3), to oversee and issue reports concerning the professional quality of medical care in the event of complaints (paragraph 3.4), to issue reports on the quality of medical care in medical institutions (paragraph 3.6) and the like.", "26. According to its statute the MADEKKI had a right to carry out scheduled (“ plānveida ”) checks on the quality of medical care as well as to carry out the required checks in response to complaints and requests (paragraph 4.1). Paragraph 4.2 authorised the MADEKKI “to request from private individuals and officials documents and information concerning questions within its field of competence”. If the MADEKKI found that laws had been broken in the course of providing health care, it was authorised to apply administrative fines and issue warnings, as well as to give appropriate recommendations to doctors and administrators of medical institutions.", "27. Lastly, section 7 2 of the MADEKKI statute provided that its staff had to maintain confidentiality with regard to any information obtained in the performance of their professional duties.", "B. Personal data", "28. The Personal Data Protection Law ( Fizisko personu datu aizsardzības likums ) provides, in section 11, that the processing ( which is defined as any activities with personal data, including collecting, registering, using, and so on) of sensitive personal data (including information about a person ’ s health) is permitted only after having received written consent from the data subject. Without such consent personal data may be processed only in a limited number of situations, including “ if ... necessary for the purposes of medical treatment [or] the provision or administration of heath care services” (section 11(5)).", "29. Section 7 of the Personal Data Protection Law provided more generally that processing of personal data was allowed only if that law did not provide otherwise and if at least one of the other conditions was present. One of the additional conditions was that the processing of the data was necessary for a system administrator to carry out his legal duties (section 7(3)). A “system administrator” for the purposes of this Law was “a natural or legal person who determines the aims of a data processing system and the means of processing [ of the data]”.", "30. As in force at the relevant time, section 50 of the Medical Treatment Law provided that information concerning patients ’ treatment and diagnosis could only be provided to a limited number of institutions, including the MADEKKI.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "31. The applicant complained that the MADEKKI had violated her right to respect for her private life, protected Article 8 of the Convention, which, in so far as is relevant, reads as follows:", "“1. Everyone has the right to respect for his private ... life ....", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "32. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "33. The parties agreed that the applicant ’ s medical data formed part of her private life and that the collection of such data by the MADEKKI constituted an interference with her right to respect for her private life. The Court sees no reason to hold otherwise. Therefore there has been an interference with the applicant ’ s right to respect for her private life. It remains to be determined whether the interference complied with the requirements of the second paragraph of Article 8 of the Convention.", "1. Submissions of the parties", "34. The Government maintained that the interference had been in accordance with the law. They relied on the conclusions reached by the Senate of the Supreme Court to the effect that the MADEKKI was authorised to check the quality of health care not only in situations where it had received a complaint from a patient. The Senate was of the opinion that a provider of health care services, “with the aim of protecting public interests, is also entitled to request the assessment of the quality of medical care ” in order that, should any irregularities be found, they might be eliminated and their recurrence with respect to other patients avoided in the future.", "35. The Government further relied on the conclusions of the Senate that sections 10 (see paragraph 24 above) and 50 (see paragraph 30 above) of the Medical Treatment Law in combination with the relevant provisions of the statute of the MADEKKI (the Government referred, inter alia, to paragraphs 1, 3.3, 3.4, 3.6, 4.1 and 4.2 of the statute), and taking into account the exception to the prohibition of the processing of personal data contained in section 11(5) of the Personal Data Protection Law, entitled the MADEKKI to collect and process the applicant ’ s sensitive data “in order to monitor the quality of medical care, which in turn is part of the provision of heath care services”.", "36. The Government submitted that the MADEKKI had collected the applicant ’ s data in order to establish whether the treatment administered to her on 16 June 1997 had complied with the legislation in force at the material time. If any violations of the applicable legislation had been found, it would have helped to prevent similar situations from arising in the future. Thus the purpose of collecting the applicant ’ s personal data had been to protect public health and the rights and freedoms of others.", "37. In addition, referring to a statement made by the director of the Cēsis hospital during the hearing before the Administrative District Court, the Government pointed out that the MADEKKI assessment had been ordered in order to determine whether the doctor at the Cēsis hospital who had performed the tubal ligation had committed any crime.", "38. The Government further submitted that the hospital requested the MADEKKI to assess the treatment administered to the applicant", "“ as a result of the applicant ’ s attempts to achieve an out-of-court settlement with the hospital seeking to recover compensation for damage caused by the allegedly unauthorised tubal ligation. Given that [the hospital] was the respondent in a civil case which may have resulted in significant legal and financial implications, it is natural that it sought independent expert advice. It must specifically be noted that [the hospital] sought expert advice from the national independent institution competent to deal with the issue, the same institution that would have been consulted by courts, had the case proceeded further”.", "39. The Government submitted that the interference with the applicant ’ s right to respect for her private life had been of an “insignificant level”. The MADEKKI, upon having completed its examination of the applicant ’ s data, had only informed the Cēsis hospital of the conclusions of its report (see paragraph 1 2 above), without making the full report available. The Government thus concluded that the MADEKKI had processed the applicant ’ s data very carefully and had respected the applicable national data protection legislation.", "40. The applicant argued that the domestic law did not grant the MADEKKI the right to collect confidential medical data without receiving the patient ’ s prior consent. She submitted that section 50 of the Medical Treatment Law on which the Government sought to rely did not give the MADEKKI the right to acquire information about patients. Rather, that provision left the decision whether or not to give information about patients to the discretion of the medical institutions in possession of such information. Should the medical institution be of the opinion that disclosure would be at odds with the data protection legislation or other laws, it had an obligation to decline the MADEKKI ’ s request.", "41. The applicant further criticised the Government ’ s reliance on the exception contained in section 11(5) of the Personal Data Protection Law, arguing that it was doubtful that medical treatment dispensed in 1997 could be considered to have been “administered” in 2004.", "42. The applicant considered that the statute of the MADEKKI, having been approved by the Cabinet of Ministers, which is an executive and not a legislative body, could not be considered “law” for the purposes of Article 8 § 2 of the Convention.", "43. The applicant argued that the only aim for which her personal data were collected by the MADEKKI had been to assist the Cēsis hospital in gathering evidence for use in the litigation concerning her sterilisation, as evidenced by the fact that the Cēsis hospital only sent its request to the MADEKKI after the applicant had set about initiating settlement negotiations with regard to her sterilisation. The applicant disagreed with the submission of the Government that the information had been collected in order to establish potential criminal liability of the doctor of the Cesis hospital.", "44. The applicant was critical of the proposition that the MADEKKI had collected her personal data to protect public health or the rights and freedoms of others, as no threat to anyone ’ s health, rights or freedoms had been identified.", "45. The applicant argued that the interference in the present case had not been necessary in a democratic society. Even assuming that the actions of the MADEKKI had pursued a legitimate aim in aiding the Cēsis hospital in the process of ascertaining the lawfulness of its employees ’ actions, it could have done so by using means less restrictive of individual rights. For instance, the Cēsis hospital could have forwarded the applicant ’ s data to the MADEKKI without disclosing her name.", "46. The applicant also disagreed with the Government ’ s submission that the interference with her right to respect for her private life had been insignificant. Citing I. v. Finland (no. 20511/03, § 38, 17 July 2008), the applicant submitted that the collection of her personal data had undermined her confidence in the medical profession and in the health services in general.", "2. Assessment of the Court", "47. The Court refers to the interpretation given to the phrase “in accordance with the law” in its case-law (as summarised in S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95-96, ECHR 2008 ). Of particular relevance in the present case is the requirement for the impugned measure to have some basis in domestic law, which should be compatible with the rule of law, which, in turn, means that the domestic law must be formulated with sufficient precision and must afford adequate legal protection against arbitrariness. Accordingly the domestic law must indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise.", "48. The Court takes note of the Government ’ s argument that in the light of the Senate of the Supreme Court ’ s interpretation of the domestic law the MADEKKI was authorised to assess the quality of medical care provided in medical institutions not only upon receiving complaints from patients but also in response to “requests”, which to the Senate meant requests from medical institutions. In the course of carrying out such checks the statute of the MADEKKI as well as section 50 of the Medical Treatment Law entitled the MADEKKI to collect information and documents relating to questions within its field of competence.", "49. The Court reiterates that according to Article 19 of the Convention its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention ( see García Ruiz v. Spain [GC], no. 30544/96, § 29, ECHR 1999 ‑ I ). Against this background, the Court turns to the interpretation of section 11(5) of the Personal Data Protection Law given by the Senate of the Supreme Court (see paragraph 28 above).", "50. The Court notes that in the present case the MADEKKI started to collect the applicant ’ s medical data in 2004, seven years after her sterilisation and at a time when the applicant was involved in civil litigation with the Cēsis hospital. In the Court ’ s view this lengthy delay raises a number of questions, such as the one highlighted by the applicant, namely, whether data collection in 2004 can be deemed to have been “ necessary for the purposes of medical treatment [ or ] the provision or administration of heath care services ” within the meaning of section 11(5) of the Data Protection Law, if the actual health care services had been provided seven years earlier, in 1997. Such a broad interpretation of an exception to the general rule militating against the disclosure of personal data might not offer sufficient guarantees against the risk of abuse and arbitrariness ( see S. and Marper, cited above, § 99 ).", "51. In this context the Court finds it noteworthy that the applicant had never been informed that the MADEKKI had collected and processed her personal data in order to carry out a general control of the quality of health care provided by the Cēsis hospital to patients in situations comparable to the one of the applicant. The hospital itself was never given any recommendations on how to improve the services provided by it. The only information that was received by the hospital pertained specifically to the actions of the doctor responsible for the applicant ’ s treatment and that information was provided to the hospital at a time when there was an ongoing litigation between the applicant and the hospital.", "52. The Court notes that the applicable legal norms described the competence of the MADEKKI in a very general fashion. The Senate of the Supreme Court did not explain which of its functions the MADEKKI had been carrying out or what public interest it had been pursuing when it issued a report on the legality of the applicant ’ s treatment. Accordingly the Senate did not and could not examine the proportionality of the interference with the applicant ’ s right to respect for her private life against any public interest, particularly since it came to the conclusion that such weighing had already been done by the legislator (see paragraph 22 above).", "53. Moreover, this took place against the background of domestic law, as in force at the relevant time, which did not provide for the right of the data subject to be informed that the MADEKKI would be processing his or her medical data before it started collecting the data. Thus the MADEKKI was under no legal obligation to take decisions concerning the processing of medical data in such a way as to take the data subject ’ s views into account, whether simply by asking for and potentially receiving the data subject ’ s consent or by other means (see Z v. Finland, cited above, § 101, referring to W. v. the United Kingdom, 8 July 1987, § 64, Series A no. 121 ).", "54. The Court cannot accept the Government ’ s suggestion that the MADEKKI was collecting information concerning the applicant ’ s medical history in order to determine whether the doctor who had performed the tubal ligation had to be held criminally liable. Firstly, seven years after the event the prosecution had certainly become time-barred (depending on the legal classification of the potentially criminal act, the statutory limit was most likely two years but certainly no more than five years). Secondly, neither the director of the Cēsis hospital nor the MADEKKI had the legal authority to determine, even on a preliminary basis, the criminal liability of private individuals.", "55. Turning to the Government ’ s argument that the MADEKKI was authorised by the law to assist the hospital in litigation, in order to curtail the legal costs (see paragraph 38 above), the Court notes that the MADEKKI is part of the State administration structure, the raison d ’ être of which is to serve the interests of the general public within the limits of its competence. According to the Government, a hospital, which at the time was a respondent party in private ‑ law litigation, was authorised to seek independent expert advice from the MADEKKI. Such a hypothesis was not discussed by the Senate of the Supreme Court. The Court has difficulties in understanding the legal basis for the argument of the Government, since, at least prima facie, none of the legal norms cited by the Government states that providing independent expert advice in ongoing litigation is one of the functions of the MADEKKI.", "56. The Court reiterates that the protection of personal data, not least medical data, is of fundamental importance to a person ’ s enjoyment of the right to respect for his or her private life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve confidence in the medical profession and in the health services in general (see Z v. Finland, cited above, § 95, and Varapnickaitė-Mažylienė v. Lithuania, no. 20376/05, § 44, 17 January 2012 ).", "57. The Court notes that the applicable law did not limit in any way the scope of private data that could be collected by the MADEKKI. In the present case the MADEKKI collected the applicant ’ s medical data concerning a period spanning seven years, starting one year before the disputed tubal ligation and ending six years after it. The medical information collected and analysed by the MADEKKI originated from three different medical institutions. The relevance and sufficiency of the reasons for collecting information about the applicant that was not directly related to the procedures carried out at the Cēsis hospital in 1997 appear not to have been examined at any stage of the domestic procedure (see Z v. Finland, cited above, § 110).", "58. The Court notes that the MADEKKI appears to have collected the applicant ’ s medical data indiscriminately, without any prior assessment of whether the data collected would be “potentially decisive”, “relevant” or “of importance” ( see M.S. v. Sweden, cited above, §§ 38, 42 and 43, and L.L. v. France, no. 7508/02, § 46, ECHR 2006 ‑ XI ) for achieving whatever aim might have been pursued by the MADEKKI ’ s inquiry. In this context it becomes less relevant whether the staff of the MADEKKI had a legal duty to maintain the confidentiality of personal data (see paragraph 20 above and compare M.S. v. Sweden, cited above, § 43).", "59. In the light of the above considerations the Court cannot find that the applicable Latvian law was formulated with sufficient precision and afforded adequate legal protection against arbitrariness. Neither did it indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise.", "60. The Court accordingly concludes that the interference with the applicant ’ s right to respect for her private life was not in accordance with the law within the meaning of Article 8 § 2 of the Convention. Consequently there has been a violation of Article 8.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "61. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "62. The applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage.", "63. The Government argued that the applicant had not substantiated her claim in respect of non-pecuniary damage. The Government submitted that, should the Court decide to award the applicant anything under this head, the award should not exceed EUR 3,500.", "64. The Court considers that the applicant must have suffered distress and anxiety on account of the violation it has found. Ruling on an equitable basis, it awards the applicant EUR 1 1 ,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "65. The applicant also claimed EUR 2,183 for the costs and expenses incurred before the domestic courts and EUR 1,435 for those incurred before the Court.", "66. According to the Court ’ s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and were also reasonable as to quantum (see The Sunday Times v. the United Kingdom (no. 1) (Article 50), 6 November 1980, § 23, Series A no. 38 ).", "67. The Government referred to the applicant ’ s submission that owing to her poor financial situation she had not actually paid the two invoices issued by her representative for the costs and expenses of her representation before the Court. Therefore, according to the Government, the costs and expenses were not “actually incurred”.", "68. The Court notes that, although the applicant has not yet actually paid part of the legal fees and expenses, she is bound to pay them pursuant to a contractual obligation. Accordingly, in so far as the applicant ’ s representative is entitled to seek payment of her fees and expenses under the contract, the legal fees were “actually incurred” ( see Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no. 37083/03, § 106, ECHR 2009 ).", "69. The Government further submitted that the sum claimed by the applicant with respect to the domestic proceedings was “exorbitant”. To support that argument, the Government relied upon the law setting down the rates to be paid by the State to legal-aid lawyers in the Latvian legal system.", "70. In the light of the complexity and the scope of the domestic proceedings, the Court, having taken into account the documents in its possession, finds the sum claimed in that respect reasonable as to quantum. The Court further notes that the Government have not disputed the applicant ’ s claim in so far as it relates to the costs and expenses incurred in respect of the proceedings before the Court. The Court considers the applicant ’ s claim in that respect reasonable as to quantum as well.", "71. Therefore the Court considers it reasonable to award the sum of EUR 2, 76 8, covering costs under all heads, which represents the requested sum, less EUR 850 already paid to the applicant ’ s lawyer in legal aid.", "C. Default interest", "72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1975 and lives in the Cēsis District (Latvia).", "A. Background to the case", "6. On 16 June 1997 the applicant gave birth in the Cēsis District Central Hospital (a municipal enterprise, hereinafter “ the Cēsis hospital ”). Caesarean section was used, with the applicant ’ s consent, because uterine rupture had occurred during labour.", "7. In the course of that surgery the surgeon performed tubal ligation (surgical contraception) without the applicant ’ s consent.", "8. On 4 February 200 5, after her attempt to achieve an out-of-court settlement with the hospital had failed, the applicant initiated civil proceedings against the hospital, seeking to recover damages for the unauthorised tubal ligation. In December of 2006 her claim was upheld and she was awarded compensation in the amount of 10,000 Latvian lati for the unlawful sterilisation.", "B. Assessment of the quality of health care provided to the applicant", "9. On 19 February 2004 the director of the Cēsis hospital wrote to the Inspectorate of Quality Control for Medical Care and Fitness for Work ( hereinafter “the MADEKKI ” ), requesting it to “evaluate the treatment received by [the applicant] during childbirth in accordance with the legislation in force in 1997”. The MADEKKI initiated an administrative procedure on the following day. The administrative inquiry concerned the applicant ’ s health care and in particular the gynaecological and childbirth assistance she had been provided from 1996 to 2003. In the process of that inquiry the MADEKKI requested and received medical files from three different medical institutions, containing detailed information about the applicant ’ s health over that period.", "10. In April 2004 M.Z., a MADEKKI staff member, telephoned the applicant and informed her of the on-going inquiry. M.Z. invited the applicant to comment on the case, which she declined to do, referring the MADEKKI to her legal representative, Ms Olsena, instead. During the conversation M.Z. allegedly admonished the applicant for wanting to sue the hospital for damages, and told her that she herself was to blame for her sterilisation.", "11. On 7 May 2004 Ms Olsena asked the MADEKKI for information on the legal grounds for, and the factual circumstances of, the inquiry.", "12. On 14 May 2004 the MADEKKI issued a report concerning the medical treatment given to the applicant during childbirth in 1997. The report contained medical details about the applicant of a particularly private and sensitive character. It concluded that no laws had been violated during the applicant ’ s antenatal care or during childbirth. A summary of the findings of the report was sent to the director of the Cēsis hospital on 21 May 2004.", "13. On 18 May 2004 the MADEKKI answered Ms Olsena ’ s questions concerning the administrative inquiry, setting out its opinion on the legal basis for it and providing information on the steps that had been taken in the course of the inquiry.", "14. The applicant ’ s representative lodged a claim with the Administrative District Court, alleging that the MADEKKI had initiated the inquiry unlawfully, since in essence its purpose had been to help the Cēsis hospital to gather evidence for the impending litigation, which was outside the MADEKKI ’ s remit. It was also alleged that the MADEKKI had acted unlawfully in requesting and receiving information about the applicant ’ s health, as it had violated the applicant ’ s right to respect for her private life. That right had been further violated when the MADEKKI unlawfully transferred the applicant ’ s data to the Cēsis hospital. Lastly, the court was requested to annul an administrative act – the MADEKKI ’ s report – since its findings were erroneous. Compensation in the amount of 500 Latvian lati was requested in respect of non-pecuniary damage.", "15. On 12 May 2005 the Administrative District Court adopted a judgment by which it terminated the proceedings with regard to the request to annul the MADEKKI report, as in the court ’ s opinion the report did not create any specific rights or obligations for the applicant and thus could not be considered an administrative act, and dismissed the remainder of the application as ill- founded.", "16. Counsel for the applicant appealed and on 16 June 2006 the Administrative Regional Court adopted a judgment by which it upheld in full the first - instance court ’ s judgment and endorsed that court ’ s reasoning, essentially equating the activities of the MADEKKI with the provision of health care, which, according to domestic law, was a legitimate reason for gathering personal data.", "17. On 8 February 2007 the Senate of the Supreme Court dismissed an appeal on points of law lodged by the applicant, in which reference was made, inter alia, to Article 8 of the Convention and to the cases of Z v. Finland ( 25 February 1997, Reports of Judgments and Decisions 1997 ‑ I) and M.S. v. Sweden (27 August 1997, Reports of Judgments and Decisions 1997 ‑ IV).", "18. The Senate agreed with the lower courts that the MADEKKI report could not be considered an administrative act. It further considered that this report was not an action of a public authority ( faktiskā rīcība ) and thus was not amenable to review in administrative courts.", "19. It thus remained for the Senate to address the applicant ’ s claims that the MADEKKI ’ s actions in preparing the report had been unlawful. In this regard the Senate considered that the Medical Treatment Law gave the MADEKKI the right to examine the quality of medical care provided in medical institutions not only upon receiving a corresponding complaint from a patient but also when a request for such examination had been submitted by a medical institution, which had an obligation to protect the interests of the society so that, should any irregularities be found by the MADEKKI, they might be eliminated and their recurrence with respect to other patients avoided in the future.", "20. The Senate agreed with the applicant that the processing of sensitive data concerning her constituted an interference with her rights guaranteed by, inter alia, Article 8 of the Convention. The Senate then went on to summarise the findings of the Strasbourg Court in the two cases invoked by the applicant, emphasising in particular that the Convention left to the States a wide margin of appreciation in balancing the confidentiality of medical data and the necessity to preserve patients ’ confidence in the medical profession and in the health services in general.", "21. The Senate further held that both the Medical Treatment Law and the Personal Data Protection Law contained exceptions that permitted the MADEKKI to collect and process the otherwise confidential medical data. The former listed such exceptions explicitly (see paragraph 30 below), while the latter allowed processing of medical data for the purposes of medical treatment or the provision or administration of heath care services (see paragraph 2 8 below) or if processing of personal data was necessary for a system administrator to carry out his legal duties (see paragraph 2 9 below). The Senate continued as follows: “ according to [the law] the MADEKKI has a duty to control the quality of medical care. In order to carry out such control, the MADEKKI requires information about the patient and his care ”.", "22. The Senate concluded as follows:", "“Taking into account the aforementioned, the [Senate] finds that restrictions to a person ’ s private life connected to gathering and processing of sensitive personal data are provided for by law. When regulating this question, the legislator has already assessed the aim and proportionality of such restrictions, as well as has provided for safeguards against unjustified disclosure of the above-mentioned data. Consequently [the applicant ’ s] argument that the Regional Court ought to have assessed the aim and proportionality of the restriction is unfounded.", "Additionally the [Senate] considers that the Regional Court has correctly interpreted and applied the above-mentioned legal provisions and has come to the correct conclusion that the MADEKKI, in order to carry out the control of the quality of medical care, which it is competent to do, had a right to receive and process [the applicant ’ s] sensitive data without asking for her consent and that the MADEKKI has acted within its sphere of competence and in accordance with the provisions of the law concerning the processing of sensitive personal data. The MADEKKI used the information it had collected about [the applicant] in order to carry out its functions, namely, to control the quality of the medical care provided to [the applicant], while to the Cēsis hospital it only handed over its conclusions concerning the legality of the doctors ’ actions, which did not contain [the applicant ’ s] sensitive data. ”", "23. For these reasons the Senate decided to uphold the lower courts ’ decisions." ]

[ "II. RELEVANT NATIONAL LAW", "A. Legal regulation of the MADEKKI", "24. Section 10 of the Medical Treatment Law ( Ārstniecības likums ) at the relevant time provided that the MADEKKI was the institution responsible for monitoring the quality of medical care provided in medical institutions.", "25. The MADEKKI ’ s work at the relevant time was governed in more detail by its statute ( nolikums ), which had been approved by the Cabinet of Ministers. The statute provided that the MADEKKI was a government institution, whose main functions were to inspect and monitor the professional quality of health care in medical institutions irrespective of their ownership status (paragraph 1). Paragraph 3 of the statute listed the principal functions of the MADEKKI, such as to examine complaints in order to protect the rights of patients (paragraph 3.3), to oversee and issue reports concerning the professional quality of medical care in the event of complaints (paragraph 3.4), to issue reports on the quality of medical care in medical institutions (paragraph 3.6) and the like.", "26. According to its statute the MADEKKI had a right to carry out scheduled (“ plānveida ”) checks on the quality of medical care as well as to carry out the required checks in response to complaints and requests (paragraph 4.1). Paragraph 4.2 authorised the MADEKKI “to request from private individuals and officials documents and information concerning questions within its field of competence”. If the MADEKKI found that laws had been broken in the course of providing health care, it was authorised to apply administrative fines and issue warnings, as well as to give appropriate recommendations to doctors and administrators of medical institutions.", "27. Lastly, section 7 2 of the MADEKKI statute provided that its staff had to maintain confidentiality with regard to any information obtained in the performance of their professional duties.", "B. Personal data", "28. The Personal Data Protection Law ( Fizisko personu datu aizsardzības likums ) provides, in section 11, that the processing ( which is defined as any activities with personal data, including collecting, registering, using, and so on) of sensitive personal data (including information about a person ’ s health) is permitted only after having received written consent from the data subject. Without such consent personal data may be processed only in a limited number of situations, including “ if ... necessary for the purposes of medical treatment [or] the provision or administration of heath care services” (section 11(5)).", "29. Section 7 of the Personal Data Protection Law provided more generally that processing of personal data was allowed only if that law did not provide otherwise and if at least one of the other conditions was present. One of the additional conditions was that the processing of the data was necessary for a system administrator to carry out his legal duties (section 7(3)). A “system administrator” for the purposes of this Law was “a natural or legal person who determines the aims of a data processing system and the means of processing [ of the data]”.", "30. As in force at the relevant time, section 50 of the Medical Treatment Law provided that information concerning patients ’ treatment and diagnosis could only be provided to a limited number of institutions, including the MADEKKI.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "31. The applicant complained that the MADEKKI had violated her right to respect for her private life, protected Article 8 of the Convention, which, in so far as is relevant, reads as follows:", "“1. Everyone has the right to respect for his private ... life ....", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "32. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "33. The parties agreed that the applicant ’ s medical data formed part of her private life and that the collection of such data by the MADEKKI constituted an interference with her right to respect for her private life. The Court sees no reason to hold otherwise. Therefore there has been an interference with the applicant ’ s right to respect for her private life. It remains to be determined whether the interference complied with the requirements of the second paragraph of Article 8 of the Convention.", "1. Submissions of the parties", "34. The Government maintained that the interference had been in accordance with the law. They relied on the conclusions reached by the Senate of the Supreme Court to the effect that the MADEKKI was authorised to check the quality of health care not only in situations where it had received a complaint from a patient. The Senate was of the opinion that a provider of health care services, “with the aim of protecting public interests, is also entitled to request the assessment of the quality of medical care ” in order that, should any irregularities be found, they might be eliminated and their recurrence with respect to other patients avoided in the future.", "35. The Government further relied on the conclusions of the Senate that sections 10 (see paragraph 24 above) and 50 (see paragraph 30 above) of the Medical Treatment Law in combination with the relevant provisions of the statute of the MADEKKI (the Government referred, inter alia, to paragraphs 1, 3.3, 3.4, 3.6, 4.1 and 4.2 of the statute), and taking into account the exception to the prohibition of the processing of personal data contained in section 11(5) of the Personal Data Protection Law, entitled the MADEKKI to collect and process the applicant ’ s sensitive data “in order to monitor the quality of medical care, which in turn is part of the provision of heath care services”.", "36. The Government submitted that the MADEKKI had collected the applicant ’ s data in order to establish whether the treatment administered to her on 16 June 1997 had complied with the legislation in force at the material time. If any violations of the applicable legislation had been found, it would have helped to prevent similar situations from arising in the future. Thus the purpose of collecting the applicant ’ s personal data had been to protect public health and the rights and freedoms of others.", "37. In addition, referring to a statement made by the director of the Cēsis hospital during the hearing before the Administrative District Court, the Government pointed out that the MADEKKI assessment had been ordered in order to determine whether the doctor at the Cēsis hospital who had performed the tubal ligation had committed any crime.", "38. The Government further submitted that the hospital requested the MADEKKI to assess the treatment administered to the applicant", "“ as a result of the applicant ’ s attempts to achieve an out-of-court settlement with the hospital seeking to recover compensation for damage caused by the allegedly unauthorised tubal ligation. Given that [the hospital] was the respondent in a civil case which may have resulted in significant legal and financial implications, it is natural that it sought independent expert advice. It must specifically be noted that [the hospital] sought expert advice from the national independent institution competent to deal with the issue, the same institution that would have been consulted by courts, had the case proceeded further”.", "39. The Government submitted that the interference with the applicant ’ s right to respect for her private life had been of an “insignificant level”. The MADEKKI, upon having completed its examination of the applicant ’ s data, had only informed the Cēsis hospital of the conclusions of its report (see paragraph 1 2 above), without making the full report available. The Government thus concluded that the MADEKKI had processed the applicant ’ s data very carefully and had respected the applicable national data protection legislation.", "40. The applicant argued that the domestic law did not grant the MADEKKI the right to collect confidential medical data without receiving the patient ’ s prior consent. She submitted that section 50 of the Medical Treatment Law on which the Government sought to rely did not give the MADEKKI the right to acquire information about patients. Rather, that provision left the decision whether or not to give information about patients to the discretion of the medical institutions in possession of such information. Should the medical institution be of the opinion that disclosure would be at odds with the data protection legislation or other laws, it had an obligation to decline the MADEKKI ’ s request.", "41. The applicant further criticised the Government ’ s reliance on the exception contained in section 11(5) of the Personal Data Protection Law, arguing that it was doubtful that medical treatment dispensed in 1997 could be considered to have been “administered” in 2004.", "42. The applicant considered that the statute of the MADEKKI, having been approved by the Cabinet of Ministers, which is an executive and not a legislative body, could not be considered “law” for the purposes of Article 8 § 2 of the Convention.", "43. The applicant argued that the only aim for which her personal data were collected by the MADEKKI had been to assist the Cēsis hospital in gathering evidence for use in the litigation concerning her sterilisation, as evidenced by the fact that the Cēsis hospital only sent its request to the MADEKKI after the applicant had set about initiating settlement negotiations with regard to her sterilisation. The applicant disagreed with the submission of the Government that the information had been collected in order to establish potential criminal liability of the doctor of the Cesis hospital.", "44. The applicant was critical of the proposition that the MADEKKI had collected her personal data to protect public health or the rights and freedoms of others, as no threat to anyone ’ s health, rights or freedoms had been identified.", "45. The applicant argued that the interference in the present case had not been necessary in a democratic society. Even assuming that the actions of the MADEKKI had pursued a legitimate aim in aiding the Cēsis hospital in the process of ascertaining the lawfulness of its employees ’ actions, it could have done so by using means less restrictive of individual rights. For instance, the Cēsis hospital could have forwarded the applicant ’ s data to the MADEKKI without disclosing her name.", "46. The applicant also disagreed with the Government ’ s submission that the interference with her right to respect for her private life had been insignificant. Citing I. v. Finland (no. 20511/03, § 38, 17 July 2008), the applicant submitted that the collection of her personal data had undermined her confidence in the medical profession and in the health services in general.", "2. Assessment of the Court", "47. The Court refers to the interpretation given to the phrase “in accordance with the law” in its case-law (as summarised in S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95-96, ECHR 2008 ). Of particular relevance in the present case is the requirement for the impugned measure to have some basis in domestic law, which should be compatible with the rule of law, which, in turn, means that the domestic law must be formulated with sufficient precision and must afford adequate legal protection against arbitrariness. Accordingly the domestic law must indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise.", "48. The Court takes note of the Government ’ s argument that in the light of the Senate of the Supreme Court ’ s interpretation of the domestic law the MADEKKI was authorised to assess the quality of medical care provided in medical institutions not only upon receiving complaints from patients but also in response to “requests”, which to the Senate meant requests from medical institutions. In the course of carrying out such checks the statute of the MADEKKI as well as section 50 of the Medical Treatment Law entitled the MADEKKI to collect information and documents relating to questions within its field of competence.", "49. The Court reiterates that according to Article 19 of the Convention its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention ( see García Ruiz v. Spain [GC], no. 30544/96, § 29, ECHR 1999 ‑ I ). Against this background, the Court turns to the interpretation of section 11(5) of the Personal Data Protection Law given by the Senate of the Supreme Court (see paragraph 28 above).", "50. The Court notes that in the present case the MADEKKI started to collect the applicant ’ s medical data in 2004, seven years after her sterilisation and at a time when the applicant was involved in civil litigation with the Cēsis hospital. In the Court ’ s view this lengthy delay raises a number of questions, such as the one highlighted by the applicant, namely, whether data collection in 2004 can be deemed to have been “ necessary for the purposes of medical treatment [ or ] the provision or administration of heath care services ” within the meaning of section 11(5) of the Data Protection Law, if the actual health care services had been provided seven years earlier, in 1997. Such a broad interpretation of an exception to the general rule militating against the disclosure of personal data might not offer sufficient guarantees against the risk of abuse and arbitrariness ( see S. and Marper, cited above, § 99 ).", "51. In this context the Court finds it noteworthy that the applicant had never been informed that the MADEKKI had collected and processed her personal data in order to carry out a general control of the quality of health care provided by the Cēsis hospital to patients in situations comparable to the one of the applicant. The hospital itself was never given any recommendations on how to improve the services provided by it. The only information that was received by the hospital pertained specifically to the actions of the doctor responsible for the applicant ’ s treatment and that information was provided to the hospital at a time when there was an ongoing litigation between the applicant and the hospital.", "52. The Court notes that the applicable legal norms described the competence of the MADEKKI in a very general fashion. The Senate of the Supreme Court did not explain which of its functions the MADEKKI had been carrying out or what public interest it had been pursuing when it issued a report on the legality of the applicant ’ s treatment. Accordingly the Senate did not and could not examine the proportionality of the interference with the applicant ’ s right to respect for her private life against any public interest, particularly since it came to the conclusion that such weighing had already been done by the legislator (see paragraph 22 above).", "53. Moreover, this took place against the background of domestic law, as in force at the relevant time, which did not provide for the right of the data subject to be informed that the MADEKKI would be processing his or her medical data before it started collecting the data. Thus the MADEKKI was under no legal obligation to take decisions concerning the processing of medical data in such a way as to take the data subject ’ s views into account, whether simply by asking for and potentially receiving the data subject ’ s consent or by other means (see Z v. Finland, cited above, § 101, referring to W. v. the United Kingdom, 8 July 1987, § 64, Series A no. 121 ).", "54. The Court cannot accept the Government ’ s suggestion that the MADEKKI was collecting information concerning the applicant ’ s medical history in order to determine whether the doctor who had performed the tubal ligation had to be held criminally liable. Firstly, seven years after the event the prosecution had certainly become time-barred (depending on the legal classification of the potentially criminal act, the statutory limit was most likely two years but certainly no more than five years). Secondly, neither the director of the Cēsis hospital nor the MADEKKI had the legal authority to determine, even on a preliminary basis, the criminal liability of private individuals.", "55. Turning to the Government ’ s argument that the MADEKKI was authorised by the law to assist the hospital in litigation, in order to curtail the legal costs (see paragraph 38 above), the Court notes that the MADEKKI is part of the State administration structure, the raison d ’ être of which is to serve the interests of the general public within the limits of its competence. According to the Government, a hospital, which at the time was a respondent party in private ‑ law litigation, was authorised to seek independent expert advice from the MADEKKI. Such a hypothesis was not discussed by the Senate of the Supreme Court. The Court has difficulties in understanding the legal basis for the argument of the Government, since, at least prima facie, none of the legal norms cited by the Government states that providing independent expert advice in ongoing litigation is one of the functions of the MADEKKI.", "56. The Court reiterates that the protection of personal data, not least medical data, is of fundamental importance to a person ’ s enjoyment of the right to respect for his or her private life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve confidence in the medical profession and in the health services in general (see Z v. Finland, cited above, § 95, and Varapnickaitė-Mažylienė v. Lithuania, no. 20376/05, § 44, 17 January 2012 ).", "57. The Court notes that the applicable law did not limit in any way the scope of private data that could be collected by the MADEKKI. In the present case the MADEKKI collected the applicant ’ s medical data concerning a period spanning seven years, starting one year before the disputed tubal ligation and ending six years after it. The medical information collected and analysed by the MADEKKI originated from three different medical institutions. The relevance and sufficiency of the reasons for collecting information about the applicant that was not directly related to the procedures carried out at the Cēsis hospital in 1997 appear not to have been examined at any stage of the domestic procedure (see Z v. Finland, cited above, § 110).", "58. The Court notes that the MADEKKI appears to have collected the applicant ’ s medical data indiscriminately, without any prior assessment of whether the data collected would be “potentially decisive”, “relevant” or “of importance” ( see M.S. v. Sweden, cited above, §§ 38, 42 and 43, and L.L. v. France, no. 7508/02, § 46, ECHR 2006 ‑ XI ) for achieving whatever aim might have been pursued by the MADEKKI ’ s inquiry. In this context it becomes less relevant whether the staff of the MADEKKI had a legal duty to maintain the confidentiality of personal data (see paragraph 20 above and compare M.S. v. Sweden, cited above, § 43).", "59. In the light of the above considerations the Court cannot find that the applicable Latvian law was formulated with sufficient precision and afforded adequate legal protection against arbitrariness. Neither did it indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise.", "60. The Court accordingly concludes that the interference with the applicant ’ s right to respect for her private life was not in accordance with the law within the meaning of Article 8 § 2 of the Convention. Consequently there has been a violation of Article 8.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "61. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "62. The applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage.", "63. The Government argued that the applicant had not substantiated her claim in respect of non-pecuniary damage. The Government submitted that, should the Court decide to award the applicant anything under this head, the award should not exceed EUR 3,500.", "64. The Court considers that the applicant must have suffered distress and anxiety on account of the violation it has found. Ruling on an equitable basis, it awards the applicant EUR 1 1 ,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "65. The applicant also claimed EUR 2,183 for the costs and expenses incurred before the domestic courts and EUR 1,435 for those incurred before the Court.", "66. According to the Court ’ s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and were also reasonable as to quantum (see The Sunday Times v. the United Kingdom (no. 1) (Article 50), 6 November 1980, § 23, Series A no. 38 ).", "67. The Government referred to the applicant ’ s submission that owing to her poor financial situation she had not actually paid the two invoices issued by her representative for the costs and expenses of her representation before the Court. Therefore, according to the Government, the costs and expenses were not “actually incurred”.", "68. The Court notes that, although the applicant has not yet actually paid part of the legal fees and expenses, she is bound to pay them pursuant to a contractual obligation. Accordingly, in so far as the applicant ’ s representative is entitled to seek payment of her fees and expenses under the contract, the legal fees were “actually incurred” ( see Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no. 37083/03, § 106, ECHR 2009 ).", "69. The Government further submitted that the sum claimed by the applicant with respect to the domestic proceedings was “exorbitant”. To support that argument, the Government relied upon the law setting down the rates to be paid by the State to legal-aid lawyers in the Latvian legal system.", "70. In the light of the complexity and the scope of the domestic proceedings, the Court, having taken into account the documents in its possession, finds the sum claimed in that respect reasonable as to quantum. The Court further notes that the Government have not disputed the applicant ’ s claim in so far as it relates to the costs and expenses incurred in respect of the proceedings before the Court. The Court considers the applicant ’ s claim in that respect reasonable as to quantum as well.", "71. Therefore the Court considers it reasonable to award the sum of EUR 2, 76 8, covering costs under all heads, which represents the requested sum, less EUR 850 already paid to the applicant ’ s lawyer in legal aid.", "C. Default interest", "72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1978 and lives in Sângera. He was represented by Mr A. Lungu, a lawyer practising in Durlești.", "3. The Government were represented by their Agent, Mr O. Rotari.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. The applicant is HIV positive. In 2011 he underwent a medical examination at the Chișinău Military Centre in order to obtain a military service record book. He informed the doctors of his illness and they confirmed it. On 11 July 2011 the Military Centre issued him with a certificate in place of the military service record book (“the exemption certificate”), according to which he was exempted from military service under Section 5 of the Medical Standards ( Baremul Medical ) provided for in Defence Ministry order no. 177 of 2003 (see paragraph 10 below). The certificate was issued on the basis of the model for such certificates, adopted by Government decision no. 864 of 17 August 2005 (see paragraph 11 below).", "6. When obtaining his national identity card, which under domestic law is mandatory for everyone (see paragraph 8 below), the applicant had to produce his military service record book or the exemption certificate. He complied with this obligation when he renewed his identity card in August 2011." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "7. Under section 4(c) of the Law on administrative proceedings (no. 793-XIV of 10 February 2000), in force at the relevant time, Government decisions of a normative character were exempt from judicial supervision.", "8. Under section 7 of the Law on identity papers in the national passport system (no. 273-XIII of 9 November 1994), citizens of the Republic of Moldova residing in the country must have an identity card from the age of 16.", "9. Under section 44(5) of the Law on preparing citizens for the defence of the Motherland (no. 1245-XV of 18 July 2002), as in force at the time of the events, the competent authority could issue passports and record a change of residence for recruits or reservists only after the latter had been registered with the military or officially exempted from such registration.", "10. Section 5 of the Medical Standards ( Baremul Medical ) provided for in Defence Ministry order no. 177 of 2003, as published in the Official Gazette and as in force at the time of the events, read as follows:", "“In the case of immunodeficiency disorders with a congenital or acquired character, accompanied by pathological changes in the haematopoietic system or other organs, the fitness for military service and military specialisation shall be determined depending on the degree to which the functioning of the organ or organ system is affected, in accordance with the relevant paragraphs of the Medical Standards”.", "11. Under Annex 8 to the Government decision no. 864 of 17 August 2005 as in force at the relevant time, exemption certificates were to be issued in accordance with the model provided. In particular, they had to indicate the reason for the exemption from military service as follows:", "“Ground: Section ___ of the Medical Standards (order of the Defence Ministry no. ____ of ____)”, where the issuing authority would fill in the blank spaces with the relevant information.", "12. The applicant referred to the case of B., who was also HIV positive and who had asked the courts to order the competent authorities to issue him with an exemption certificate without indicating the specific section of the Medical Standards (Section 5), so as to avoid disclosing his illness to third parties. By a final judgment of 15 April 2010 the Supreme Court of Justice rejected that request. The court found that the Military Centre had acted lawfully, having followed the model for exemption certificates as set out in Government decision no. 864 of 17 August 2005. B. ’ s certificate did not expressly indicate the exact type of illness from which he was suffering and Section 5 of the Medical Standards covered several types of illnesses; hence, the certificate did not identify the exact type of illness in B. ’ s case. Moreover, the certificate was to be submitted only to a limited number of State authorities. Accordingly, no disclosure of confidential information had taken place.", "In subsequent proceedings B. lodged a complaint against a public medical institution which provided information to the Chișinău Military Centre about young men registered with that institution as having certain types of illnesses. His complaints were rejected by the Chișinău Court of Appeal on 7 February 2012 and by the Supreme Court of Justice on 21 June 2012. The courts noted, inter alia, that the Supreme Court of Justice had already established in its decision of 15 April 2010 that indicating the specific section of the Medical Standards in the exemption certificate did not amount to disclosing confidential medical information.", "13. Article 38 of the Code of Constitutional Jurisdiction (law no. 502-XIII, in force since 28 September 1995), exhaustively lists the circle of persons and institutions which may bring a case before the Constitutional Court. Individual litigants do not have that power.", "In its judgment no. 13 of 6 November 2012 the Moldovan Constitutional Court, at the request of the Ombudsman, declared unconstitutional the part of the Government decision no. 864 of 17 August 2005 requiring the specific section of the Medical Standards to be indicated in the exemption certificate. The court noted, in particular, that the medical information concerning the illness which had served as the ground for the exemption from military service was given in coded form in the exemption certificate by means of reference to sections of the Medical Standards, so as to avoid divulging such information to third parties. However, since the Medical Standards as well as the relevant Defence Ministry order had been published in the Official Gazette and were identified by date and number in the exemption certificate, the public could have access to this information and thus the coding did not ensure its confidentiality. At the same time, the legislation made it a requirement to produce military registration documents when applying for identity documents or signing a work contract and in other cases provided for by law, including to private companies which so requested. The court found that this constituted a disproportionate interference with the right to protection of private life.", "Following this judgment of the Constitutional Court, the Government amended its decision no. 864 mentioned above and excluded the requirement of indicating the ground for the exemption from military service (Government decision no. 135 of 22 February 2013).", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "14. The applicant complained about the disclosure of his personal medical data in an official document which he had to present to various authorities. He relied on Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Submissions by the parties", "15. The Government argued that the applicant had failed to exhaust available domestic remedies since he had not initiated any kind of proceedings in the domestic courts. They referred to the case of Saghinadze and Others v. Georgia (no. 18768/05, §§ 80-84, 27 May 2010), in which only the first of the six applicants, members of the same family, had exhausted domestic remedies and in which the Court had declared the complaints lodged by the five other applicants inadmissible for that reason.", "16. The Government argued that, as in Saghinadze, the applicant ’ s situation was not identical to that in the case of B. (see paragraph 12 above) such as to exempt him from exhausting domestic remedies. In particular, unlike in the case of B., there had been no disclosure of confidential information in the present case. The outcome of a single case referred to by the applicant was insufficient to establish that a remedy was ineffective, given that no one could know what the outcome of the case would have been had the applicant raised his complaints before the domestic courts.", "17. The applicant submitted that while his reference to B. ’ s case had been dismissed by the Government as being a lone example, the Government had failed to adduce any example of a case in which the courts had decided differently from that case in a similar situation. There was no material difference between his situation and that of B.; in particular, there had been a disclosure of confidential information to third parties in the present case when his exemption certificate had had to be submitted to the authorities in order to renew his national identity card. More importantly, any differences between the two cases were not important given the type of reasoning of the Supreme Court of Justice in its judgment in B. ’ s case. Lastly, he argued that since B. ’ s full name had been mentioned in the judgment of the Supreme Court of Justice despite a request to grant him anonymity, the applicant was at risk of the same further disclosure of very sensitive medical information. He was therefore dissuaded from lodging a court action as this could result in the very type of publicity which he sought to avoid when asking for a change in his exemption certificate.", "Admissibility", "18. The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with an application after the exhaustion of those domestic remedies that relate to the breaches alleged and are also available and sufficient. The Court also reiterates that it is incumbent on the Government pleading non-exhaustion to satisfy it that the remedy was an effective one available in theory and in practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success (see, in particular, Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999 ‑ V; Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II; and Gherghina v. Romania [GC] ( dec. ), no. 42219/07, § 85, 9 July 2015). Once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact used or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996 ‑ IV; Prencipe v. Monaco, no. 43376/06, § 93, 16 July 2009; and Molla Salli v. Greece [GC], no. 20452/14, § 89, 19 December 2018).", "19. In the present case the Court notes that it was apparently open to the applicant to complain about the content of the exemption certificate. In the case of B., referred to by the applicant (see paragraph 12 above), the domestic courts had accepted for examination a complaint that was very similar to that of the applicant. It follows that there was a remedy in the domestic legal system which was available in theory and in practice.", "20. The Court must next examine whether that remedy was also effective in the applicant ’ s case. The applicant argued that the remedy was ineffective in that there was no reason to believe that the Supreme Court of Justice would have reached a different conclusion from that adopted in B. ’ s case. In this regard, the parties disagreed as to whether the present case differed sufficiently from that of B. so as to distinguish it, notably as to whether there had been a disclosure of confidential medical information in the applicant ’ s case. The Court considers that there was no material difference in this regard between the present case and that of B.: a disclosure of confidential information also occurred in the applicant ’ s case in August 2011, when he had to submit his exemption certificate to non-medical authorities in order to renew his identity card (see paragraph 6 above).", "21. What is more important in the present case is that the content of exemption certificates was not left to the discretion of the Military Centres, but was expressly set out in Government decision no. 864 of 17 August 2005 (see paragraph 11 above). At the same time, under the Law on administrative proceedings, as in force at the time of the events, Government decisions of a normative character were exempt from judicial supervision (see paragraph 7 above). It follows that the courts could not verify whether Government decision no. 864 establishing the content of exemption certificates was itself in breach of the applicant ’ s rights.", "22. The Court notes that the applicant wanted a change in the content of his exemption certificate. However, that content was expressly dictated by Government decision no. 864 which remained in force throughout the relevant period and which the courts could not review, but had to apply. Accordingly, any court action aimed at changing the contents of an exemption certificate did not have any chances of success, given the mandatory nature of the relevant Government decision. B. ’ s two court actions mentioned above only confirm this. In such circumstances, the Court concludes that the remedy referred to by the Government was not effective in practice (see, mutatis mutandis, Ciubuc and Others v. Moldova ( dec. ), no. 32816/07, § 26, 10 January 2012, and Nikolyan v. Armenia, no. 74438/14, § 126, 3 October 2019 ). The Government ’ s objection must therefore be rejected.", "23. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "Merits", "24. The Court notes that the Government did not make any submissions in respect of the merits of the case.", "25. It notes that in 2012 the Moldovan Constitutional Court declared unconstitutional the part of the Government decision providing for reference to be made to the specific section of the Medical Standards which had served as the ground for issuing an exemption certificate (see paragraph 13 above). In doing so that court found that the manner in which the exemption certificate was worded, in conjunction with the other publicly available information (the relevant Government decision and the Medical Standards), allowed third parties, including potential employers such as private companies, to establish specifically the type of a person ’ s illness. The court also found that the resulting disclosure of confidential medical information amounted to a disproportionate interference with the right to protection of private life.", "26. The Court recalls that systematic storage and other use of information relating to an individual ’ s private life by public authorities entails important implications for the interests protected by Article 8 of the Convention and thus amounts to interference with the relevant rights (see, in particular, Rotaru v. Romania [GC], no. 28341/95, § 46, ECHR 2000 ‑ V; and S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 67, ECHR 2008). This is all the more true when the processing affects highly intimate and sensitive categories of information, notably the information relating to physical or mental health of an identifiable individual (see, in particular, Z. v. Finland, 25 February 1997, § 95, Reports of Judgments and Decisions 1997 ‑ I; Y.Y. v. Russia, no. 40378/06, § 38, 23 February 2016 and Surikov v. Ukraine, no. 42788/06, § 70, 26 January 2017 ).", "27. In addition to being lawful, the interference with the right of protection of personal data must also pursue a legitimate aim and be “necessary in a democratic society”. In determining whether the impugned measures were “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient and the measures were proportionate to the legitimate aims pursued (see, for example, Peck v. the United Kingdom, no. 44647/98, § 76, ECHR 2003 ‑ I). In this latter respect the Court has noted that, regard being had to the fundamental importance of data protection for effective exercise of one ’ s right to respect for private life, the margin of appreciation afforded to the member States in designing their respective legislative and administrative frameworks in this sphere is rather limited (see, in particular, Peck, cited above, §§ 77-78; and S. and Marper, cited above, §§ 102-103, ECHR 2008; and Surikov, cited above, § 73).", "28. Like the Constitutional Court (see paragraph 13 above), the Court finds that the inclusion of medical data in a certificate which was to be presented to third parties constituted an interference with the applicant ’ s rights protected under Article 8 of the Convention. The interference was in accordance with the domestic law at the time of lodging the present application, namely Government decision no. 864 (see paragraph 11 above).", "29. However, neither the Government in their submissions nor the authorities in their decisions referred to any specific legitimate aim of the interference with the applicant ’ s rights. Moreover, the parties did not make any submissions concerning the legislative history of the relevant Government decision so as to verify whether a legitimate aim could be discovered there. The Court will not identify such an aim in the authorities ’ place. In fact, it can hardly see what legitimate aim may have been pursued by revealing the applicant ’ s illness to third persons in various proceedings which are unconnected to any health risks the applicant ’ s illness may possibly entail. The policy does not appear to have a rational basis or connection to any of the legitimate aims foreseen in Article 8 § 2 of the Convention.", "30. The above is sufficient for the Court to find a violation of Article 8 of the Convention. However, it considers that the interference in the present case raises such a serious issue of proportionality to any possible legitimate aim that it will also examine this aspect (see, for instance, Baka v. Hungary [GC], no. 20261/12, § 157, 23 June 2016, and Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, §§ 194-196, 23 February 2016 ).", "31. The Court finds that the manner in which personal medical data in an exemption certificate was protected from unnecessary disclosure was deficient. In particular, it allowed third parties to find out the type of illness which had served as a basis for exempting the applicant from military service, even if they had no ostensible interest in having access to that information. In this regard, the finding of the Supreme Court of Justice in B. ’ s case (see paragraph 12 above) that section 5 of the Medical Standards provided for a number of various illnesses and not only HIV does not change the effect on the applicant. That section concerns various serious illnesses (see paragraph 10 above), which constitute sensitive medical data the disclosure of which seriously affects a person ’ s rights under Article 8.", "32. The Government did not submit any explanation of the need to include such a degree of sensitive medical details in a certificate which could be requested in a variety of situations where the applicant ’ s medical conditions was of no apparent relevance, such as when applying for employment (see paragraph 13 above). Accordingly, the interference with the applicant ’ s right was disproportionate.", "33. There has therefore been a breach of Article 8 of the Convention in the present case.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "34. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Non-pecuniary damage", "35. The applicant claimed 4,000 euros (EUR) in respect of non-pecuniary damage. He submitted that HIV-positive persons were amongst the most discriminated against categories of persons in Moldova. Disclosing to third parties his illness and giving up various rights and opportunities in order to avoid such disclosure had also adversely affected him. The applicant asked for any award made to be transferred directly to his lawyer ’ s bank account since he had had to travel abroad and could not collect any award.", "36. The Government submitted that since the application was inadmissible for failure to exhaust domestic remedies, no compensation was payable.", "37. Having regard to the violation found above and its gravity, the Court considers that an award for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court accepts in full the applicant ’ s claim. It thus awards him EUR 4,000 plus any tax that may be chargeable, to be transferred directly to his lawyer ’ s bank account.", "Costs and expenses", "38. The applicant also claimed EUR 1,960 for the costs and expenses incurred before the Court. He relied on an itemised list of the hours that his lawyer had spent working on the case.", "39. The Government considered that in the absence of a violation of any Convention right no compensation for costs and expenses was payable.", "40. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 covering costs under all heads, plus any tax that may be chargeable to the applicant, to be transferred directly to his lawyer ’ s bank account.", "Default interest", "41. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. Circumstances of the case", "7. Dr Marcel Diennet, a general practitioner living in Paris, was", "the object of proceedings for professional misconduct.", "8. On 11 March 1984 the Regional Council of the Ile-de-France ordre", "des médecins (Medical Association) struck him off the register. Its", "reasons for doing so included the following:", "\"...", "The statements made by the doctor against whom proceedings have", "been brought amply established the 'method of consultation by", "correspondence' introduced by him. Dr Diennet sent patients whom", "he could not, or did not wish to, see at his surgery a printed", "letter containing a proposal for a consultation by means of a", "detailed questionnaire to enable him to make out for each patient", "an appropriate prescription for a slimming course.", "...", "By using this method, Dr Diennet never met his patients, did not", "personally make any examination of them and did not monitor or", "adjust the treatment prescribed. During his absences from", "France, which he admits were numerous, the patients were followed", "up by his secretarial staff, a fact which he does not deny.", "The conduct of which he stands accused is amply substantiated and", "seriously contravenes the provisions of Articles 15, 18, 23, 33", "and 36 of the Code of Professional Conduct. Such conduct is", "unacceptable on the part of a doctor and bears no relation to the", "medical profession.", "These offences call for severe punishment.", "...\"", "9. The applicant appealed to the disciplinary section of the", "National Council of the ordre des médecins, which on 30 January 1985", "ordered that he should be disqualified from practising medicine for", "three years instead of being struck off.", "10. On an application by Dr Diennet, the Conseil d'Etat quashed that", "decision on 15 January 1988 on the ground that there had been an", "irregularity in the proceedings which had led to it, as the", "disciplinary section of the National Council had ruled that pleadings", "filed by the doctor after the time-limit but before the hearing were", "inadmissible. The case was remitted to the disciplinary section.", "11. On 26 April 1989, after a hearing in private, the disciplinary", "section of the National Council again disqualified the applicant from", "practising medicine for three years.", "12. Dr Diennet appealed on points of law to the Conseil d'Etat. He", "argued, in particular, that the decision concerning him had not been", "reached in accordance with Article 6 para. 1 (art. 6-1) of the", "Convention, as three of the seven members of the disciplinary section", "of the National Council, including the rapporteur, had already heard", "the case on the occasion of the first decision - a circumstance that", "did not satisfy the impartiality requirement of Article 6 para. 1", "(art. 6-1) - and the hearing on 26 April 1989 had not been held in", "public.", "13. On 29 October 1990 the Conseil d'Etat dismissed the appeal in the", "following terms:", "\"...", "As to the lawfulness of the impugned decision", "Firstly, the provisions of Article 6 para. 1 (art. 6-1) of the", "European Convention for the Protection of Human Rights and", "Fundamental Freedoms are not applicable to disciplinary", "tribunals, which do not hear criminal proceedings and do not", "determine civil rights and obligations. Mr Diennet accordingly", "cannot challenge the decision appealed against on the grounds", "that it contravened the provisions of Article 6 para. 1", "(art. 6-1) of the aforementioned Convention relating to the", "holding of hearings in public and the impartiality of tribunals.", "Secondly, although section 11 of the Law of 31 December 1987", "provides that a tribunal to which a case has been remitted by the", "Conseil d'Etat must, unless the nature of the tribunal makes it", "impossible, be differently constituted from the one that gave the", "original decision, the disciplinary section of the ordre des", "médecins was, having regard to its nature, entitled, for the", "purpose of hearing the case remitted to it by the Conseil d'Etat", "acting in its judicial capacity in a decision of 15 January 1988,", "to be constituted again as it had been on 30 January 1985, when", "it had given its first ruling. The grounds of appeal based on", "an infringement of the principle of the impartiality of tribunals", "and on the statutory provisions previously cited must therefore", "fail.", "...\"", "II. The disciplinary rules governing the medical profession", "14. It is compulsory for all doctors entitled to practise their", "profession in France to belong to the ordre national des médecins.", "This body ensures, among other things, that the principles of morality,", "probity and dedication essential to the practice of medicine are upheld", "and that all its members fulfil their professional duties and comply", "with the rules laid down in the Code of Professional Conduct. It", "discharges this function through département councils, regional", "councils and the National Council of the ordre (Articles 381 and 382", "of the Public Health Code).", "A. Procedure", "1. Before the professional disciplinary bodies", "(a) The regional councils", "15. The regional councils exercise disciplinary jurisdiction at first", "instance within the ordre des médecins. Cases may be brought before", "them by the councils of the départements within their territorial", "jurisdiction and individual registered medical practitioners, among", "others (Article L. 417 of the Public Health Code).", "(b) The disciplinary section of the National Council", "16. After each election of a proportion of its members (every two", "years) the National Council of the ordre des médecins elects eight of", "its thirty-eight members to constitute a disciplinary section - chaired", "by a senior member of the Conseil d'Etat - with jurisdiction to hear", "appeals (Articles L. 404 to 408 and L. 411 of the Public Health Code).", "Substitute members are elected in the same way as full members", "(Article 21 of Decree no. 48-1671 of 26 October 1948, as amended,", "concerning, inter alia, the functioning of the disciplinary section).", "The disciplinary section can only deliberate validly if, in", "addition to its chairman, at least four of its members are present.", "Where the number of members present is an even number, the youngest", "practitioner must withdraw (Article 24, first paragraph, of the Decree", "of 26 October 1948, as amended).", "Appeals have a suspensive effect (Article L. 411 of the Public", "Health Code).", "2. In the Conseil d'Etat", "17. An appeal on points of law against decisions of the disciplinary", "section lies to the Conseil d'Etat (Article 22 of the Decree of", "26 October 1948, as amended, and Article L. 411 of the Public Health", "Code) \"as provided in ordinary administrative law\" (Article L. 411 in", "fine of the Public Heath Code).", "Section 11 - which came into force on 1 January 1989 - of", "Law no. 87-1127 of 31 December 1987 reforming administrative", "proceedings provides:", "\"...", "If it quashes a decision by an administrative tribunal of last", "instance, the Conseil d'Etat may either remit the case to the", "same tribunal, which shall, unless the nature of the tribunal", "makes it impossible, be differently constituted, or remit the", "case to another tribunal of the same type, or determine the", "merits of the case itself where the interests of sound", "administration of justice warrant it.", "Where a second appeal on points of law is brought in a case, the", "Conseil d'Etat shall give a final ruling on it.\"", "B. Penalties", "18. The following penalties may be imposed on doctors found guilty", "of disciplinary offences: a warning; a reprimand; temporary or", "permanent disqualification from performing some or all of the medical", "duties carried out for or remunerated by the State, départements,", "municipalities, public corporations or private corporations promoting", "the public interest, or the medical duties carried out pursuant to", "welfare legislation; temporary disqualification from practising", "medicine (for a maximum of three years); and striking off the register", "of the ordre.", "The first two penalties also entail loss of the right to be a", "member of a département council, a regional council or the National", "Council of the ordre for three years; the other penalties entail", "permanent loss of that right. A doctor who has been struck off cannot", "have his name entered in another register (Article L. 423 of the Public", "Health Code).", "C. Right of challenge", "19. A doctor against whom proceedings are brought may exercise a", "right of challenge before a regional council or the National Council,", "as laid down in Articles 341 to 355 of the New Code of Civil Procedure", "(Article L. 421 of the Public Health Code).", "Article 341 of the New Code of Civil Procedure provides that a", "judge may be challenged:", "\"...", "1. if he or his spouse has a personal interest in the dispute;", "2. if he or his spouse is a creditor, debtor, heir presumptive", "or donee of one of the parties;", "3. if he or his spouse is a blood relative or a relative by", "marriage of one of the parties or of the spouse of one of the", "parties up to the fourth degree inclusive;", "4. if there have been or are still legal proceedings pending", "between him or his spouse and one of the parties or the spouse", "of one of the parties;", "5. if the case has earlier come before him as a judge or", "arbitrator or if he has advised one of the parties;", "6. if the judge or his spouse is responsible for administering", "the property of one of the parties;", "7. if there is a relationship of subordination between the", "judge or his spouse and one of the parties or the spouse of one", "of the parties;", "8. if it is common knowledge that friendship or enmity", "subsists between the judge and one of the parties;", "...\"", "D. Holding of proceedings in public", "1. The rules applicable to the instant case", "20. Article 15, second paragraph, and Article 26, seventh paragraph,", "of Decree no. 48-1671 of 26 October 1948, as amended, provided:", "\"Hearings shall not be held in public and the deliberations shall", "remain secret.\"", "The decisions of the disciplinary bodies of the ordre were", "recorded in a special register to which third parties did not have", "access and they were not published. They were notified to certain", "individuals and institutions only.", "2. The present rules", "21. Those rules were amended by Decree no. 93-181 of 5 February 1993.", "Hearings before a body of the ordre sitting to determine", "disciplinary charges are now held in public. However, the chairman of", "the body in question may, of his own motion or on an application by one", "of the parties or by the person whose complaint has led to the case", "being brought before a regional council, exclude the public from all", "or part of the hearing in the interests of public order or where", "respect for private life or medical confidentiality so justifies", "(Articles 13, 15 and 26 of the Decree of 26 October 1948, as amended", "by the Decree of 5 February 1993).", "Decisions are now made public, but the bodies in question may", "decide not to include in the certified copies any details - such as", "surnames - which might be incompatible with respect for private life", "or medical confidentiality (Articles 13 and 28 of the Decree of", "26 October 1948, as amended by the Decree of 5 February 1993)." ]

[ "PROCEEDINGS BEFORE THE COMMISSION", "22. Dr Diennet applied to the Commission on 18 April 1991. He", "alleged a violation of the right to a hearing in public and by an", "impartial tribunal, guaranteed in Article 6 para. 1 (art. 6-1) of the", "Convention.", "23. The Second Chamber of the Commission declared the application", "(no. 18160/91) admissible on 2 December 1992 and, under Article 20", "para. 4 (art. 20-4) of the Convention, subsequently relinquished", "jurisdiction in favour of the plenary Commission.", "In its report of 5 April 1994 (Article 31) (art. 31), it", "expressed the unanimous opinion that there had been a violation of the", "right to a hearing in public and, by fourteen votes to nine, the", "opinion that there had not been a violation of the right to an", "impartial tribunal. The full text of the Commission's opinion and of", "the partly dissenting opinion contained in the report is reproduced as", "an annex to this judgment (1).", "_______________", "1. Note by the Registrar: for practical reasons this annex will appear", "only with the printed version of the judgment (volume 325-A of", "Series A of the Publications of the Court), but a copy of the", "Commission's report is obtainable from the registry.", "_______________", "FINAL SUBMISSIONS TO THE COURT", "24. In their memorial the Government asked the Court \"to reject", "Mr Diennet's application\".", "25. The applicant asked the Court to", "\"hold that in the proceedings which ended with the Conseil", "d'Etat's judgment of 9 October 1990 there was a twofold violation", "by France of Article 6 (art. 6) of the European Convention on", "Human Rights, firstly in that the disciplinary tribunal did not", "hear his case in public, and secondly in that the disciplinary", "tribunal was not constituted impartially within the meaning of", "the said Article 6 (art. 6)\".", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE", "CONVENTION", "26. Dr Diennet complained that he had not had a public hearing by an", "impartial tribunal. He relied on Article 6 para. 1 (art. 6-1) of the", "Convention, which provides:", "\"In the determination of his civil rights and obligations or of", "any criminal charge against him, everyone is entitled to a fair", "and public hearing within a reasonable time by an independent and", "impartial tribunal established by law. Judgment shall be", "pronounced publicly but the press and public may be excluded from", "all or part of the trial in the interests of morals, public order", "or national security in a democratic society, where the interests", "of juveniles or the protection of the private life of the parties", "so require, or to the extent strictly necessary in the opinion", "of the court in special circumstances where publicity would", "prejudice the interests of justice.\"", "A. Applicability of Article 6 para. 1 (art. 6-1)", "27. It is clear from the Court's settled case-law that disciplinary", "proceedings in which, as in the instant case, the right to continue to", "practise medicine as a private practitioner is at stake give rise to", "\"contestations (disputes) over civil rights\" within the meaning of", "Article 6 para. 1 (art. 6-1) (see, among other authorities, the König", "v. Germany judgment of 28 June 1978, Series A no. 27, pp. 29-32,", "paras. 87-95; the Le Compte, Van Leuven and De Meyere v. Belgium", "judgment of 23 June 1981, Series A no. 43, pp. 19-23, paras. 41-51; and", "the Albert and Le Compte v. Belgium judgment of 10 February 1983,", "Series A no. 58, pp. 14-16, paras. 25-29). The applicability of", "Article 6 para. 1 (art. 6-1) to the circumstances of this case, which", "was in issue before the Commission but was not disputed before the", "Court, is therefore not in doubt.", "28. The Court considers it unnecessary to determine whether, as the", "applicant maintained, there was any \"criminal charge\" against him", "within the meaning of Article 6 para. 1 (art. 6-1) of the Convention:", "as in the König, Le Compte, Van Leuven and De Meyere, and Albert and", "Le Compte cases (judgments previously cited, p. 33, para. 96,", "pp. 23-24, para. 53, and p. 17, para. 30, respectively), those of the", "Article 6 para. 1 (art. 6-1) rules which the applicant alleged to have", "been breached apply to both civil and criminal matters.", "B. Compliance with Article 6 para. 1 (art. 6-1)", "29. Dr Diennet submitted that there had been a breach of Article 6", "para. 1 (art. 6-1) both because the proceedings before the professional", "disciplinary bodies had not been public and because one of those bodies", "had not been impartial.", "1. Holding of proceedings in public", "30. The applicant complained that the proceedings before the", "Ile-de-France Regional Council and the disciplinary section of the", "National Council of the ordre des médecins had not been held in public.", "31. The Government did not dispute the fact. They recognised,", "moreover, that the applicant could not be regarded as having tacitly", "waived a public hearing by not seeking one, inasmuch as the French", "rules expressly excluded one (see paragraph 20 above and, among other", "authorities and mutatis mutandis, the H. v. Belgium judgment of", "30 November 1987, Series A no. 127-B, p. 36, para. 54). They", "considered, nevertheless, that the Conseil d'Etat had compensated for", "that shortcoming by sitting in public on 15 January 1988 and", "15 October 1990. When sitting in disciplinary cases, the Conseil", "d'Etat had, they continued, powers of review that went beyond questions", "of law alone since it verified the accuracy of the facts which formed", "the basis of the charges and the correctness of the legal", "classification of those facts and also, where appropriate, reviewed the", "assessment made by the tribunal of fact, by checking that evidence had", "not been misinterpreted; it had proceeded in that manner in the instant", "case.", "In the alternative, the Government argued that, at all events,", "the misconduct of which the applicant had been accused related directly", "to practice of the medical profession and therefore came under the", "exceptions provided for in Article 6 para. 1 (art. 6-1). The", "disciplinary bodies of the ordre were under a duty to verify the", "factual accuracy of the charges against the applicant, against whom", "proceedings had been taken for having issued medical prescriptions for", "the treatment of obesity without examining his patients or following", "up their treatment. Specific examples therefore had to be cited during", "the proceedings, so that inevitably, if these had been held in public,", "professional confidentiality would have been jeopardised and patients'", "private lives intruded upon.", "32. The Commission, referring to the Court's case-law on the matter,", "found that there had been a violation of the right to public", "proceedings.", "33. The Court reiterates that the holding of court hearings in public", "constitutes a fundamental principle enshrined in paragraph 1 of", "Article 6 (art. 6-1) (see, as the most recent authority, the", "Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A", "no. 263, p. 19, para. 58). This public character protects litigants", "against the administration of justice in secret with no public", "scrutiny; it is also one of the means whereby confidence in the courts", "can be maintained. By rendering the administration of justice", "transparent, publicity contributes to the achievement of the aim of", "Article 6 para. 1 (art. 6-1), namely a fair trial, the guarantee of", "which is one of the fundamental principles of any democratic society,", "within the meaning of the Convention (see, for example, the Sutter v.", "Switzerland judgment of 22 February 1984, Series A no. 74, p. 12,", "para. 26).", "Admittedly, the Convention does not make this principle an", "absolute one, since by the very terms of Article 6 para. 1 (art. 6-1),", "\"... the press and public may be excluded from all or part of the trial", "in the interests of morals ..., where the ... protection of the private", "life of the parties so require[s], or to the extent strictly necessary", "in the opinion of the court in special circumstances where publicity", "would prejudice the interests of justice\".", "34. The Court takes account of several factors.", "Firstly, the Government did not dispute that the hearings before", "the disciplinary bodies of the ordre des médecins had not been held in", "public.", "Secondly, where the Conseil d'Etat hears appeals on points of law", "from decisions of the disciplinary section of the National Council of", "the ordre des médecins, it cannot be regarded as a \"judicial body that", "has full jurisdiction\", in particular because it does not have the", "power to assess whether the penalty was proportionate to the", "misconduct; the fact that hearings before it are held in public is", "therefore not sufficient to remedy the defect found to exist at the", "stage of the disciplinary proceedings (see, inter alia and mutatis", "mutandis, the Albert and Le Compte judgment previously cited, p. 16,", "para. 29, and p. 19, para. 36).", "Lastly, while the need to protect professional confidentiality", "and the private lives of patients may justify holding proceedings in", "camera, such an occurrence must be strictly required by the", "circumstances. In the instant case, however, as the applicant and the", "Commission rightly pointed out, the proceedings were to deal only with", "the \"method of consultation by correspondence\" adopted by Dr Diennet", "(see paragraph 8 above). There was no good reason to suppose that", "either the tangible results of that method in respect of a given", "patient or any confidences that Dr Diennet might have picked up in the", "course of practising his profession would be mentioned. If it had", "become apparent during the hearing that there was a risk of a breach", "of professional confidentiality or an intrusion on private life, the", "tribunal could have ordered that the hearing should continue in camera.", "At all events, the public was excluded because of the automatic prior", "application of the provisions of the Decree of 26 October 1948 (see", "paragraph 20 above). That decree was amended after the events in the", "instant case had occurred; with a number of strictly defined", "exceptions, hearings before a body of the ordre in disciplinary", "proceedings are now held in public (see paragraph 21 above).", "35. In sum, there has been a breach of Article 6 para. 1 (art. 6-1)", "in that the applicant did not receive a \"public\" hearing before the", "Ile-de-France Regional Council and the disciplinary section of the", "National Council of the ordre des médecins.", "2. Impartiality", "36. The applicant did not contest the personal impartiality of the", "members of the disciplinary section of the National Council of the", "ordre des médecins as constituted when his case was referred back to", "it by the Court of Cassation.", "On the other hand, he did state that the combination of several", "factors objectively gave rise to very serious doubts about the", "impartiality of the section as such: not only had three of its seven", "members - including the rapporteur - heard the case on appeal but the", "second decision had been identical with the first one, except for the", "addition of a paragraph in which an amnesty that had been enacted in", "the meantime was taken into account.", "He maintained that the three members in question could have been", "replaced by substitutes. In this connection, he could not be blamed", "for not having challenged the three members, as, on the one hand, such", "a procedure - which was exceptional in French law - would have been", "bound to fail and, on the other hand, the defect relating to the", "reasons given for the disciplinary section's second decision did not", "become apparent to him until the decision was served on him, when he", "was able to see that it was identical with the first decision.", "37. The Government and the Commission referred to the Ringeisen v.", "Austria judgment of 16 July 1971, according to which \"... it cannot be", "stated as a general rule resulting from the obligation to be impartial", "that a superior court which sets aside an administrative or judicial", "decision is bound to send the case back to a different jurisdictional", "authority or to a differently composed branch of that authority\"", "(Series A no. 13, p. 40, para. 97). The Government said that", "section 11 of the Law of 31 December 1987 reforming administrative", "proceedings expressly provided that if the Conseil d'Etat remitted a", "case to the same tribunal, the latter had to be differently constituted", "unless the nature of the tribunal made it impossible (see paragraph 17", "above); and as it was the one and only body of its kind, the nature of", "the disciplinary section of the National Council of the ordre des", "médecins did make it impossible.", "As to the complaint about the reasoning, the Government pointed", "out that the first decision had been quashed only on account of a", "procedural irregularity and no new facts had been relied on after the", "case had been remitted, so that the similarity of the texts of the two", "decisions, even taken in conjunction with the membership of the", "disciplinary section as constituted on the second occasion, likewise", "did not justify any objective doubts as to the impartiality of the", "disciplinary section.", "38. In the Court's view, no ground for legitimate suspicion can be", "discerned in the fact that three of the seven members of the", "disciplinary section had taken part in the first decision (see the", "Ringeisen judgment previously cited, loc. cit., and paragraph 12", "above). Furthermore, even if the second decision had been differently", "worded, it would necessarily have had the same basis, because there", "were no new factors. The applicant's fears therefore cannot be", "regarded as having been objectively justified.", "39. There has accordingly been no breach of Article 6 para. 1", "(art. 6-1) in this respect.", "II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION", "40. Article 50 (art. 50) of the Convention provides:", "\"If the Court finds that a decision or a measure taken by a legal", "authority or any other authority of a High Contracting Party is", "completely or partially in conflict with the obligations arising", "from the ... Convention, and if the internal law of the said", "Party allows only partial reparation to be made for the", "consequences of this decision or measure, the decision of the", "Court shall, if necessary, afford just satisfaction to the", "injured party.\"", "A. Damage", "41. The applicant sought, firstly, 500,000 French francs (FRF) in", "respect of non-pecuniary damage and FRF 500,000 in compensation for the", "\"harassment\" that he had suffered as a consequence of the disciplinary", "penalty that had been imposed on him.", "42. The Delegate of the Commission left the matter to the Court's", "discretion. However, he pointed out that the applicant's claim was", "based on the assumption that there had been a double breach of", "Article 6 para. 1 (art. 6-1), so that it would be appropriate not to", "award the whole of the amount sought if the Court agreed with the", "Commission's opinion.", "43. Like the Government, the Court considers that the finding of a", "breach of Article 6 para. 1 (art. 6-1) constitutes in itself sufficient", "just satisfaction.", "B. Costs and expenses", "44. Dr Diennet also sought FRF 47,000 in respect of the costs and", "expenses incurred before the French disciplinary and judicial bodies", "and FRF 30,000, plus FRF 3,720 in value added tax (VAT), in respect of", "those relating to the proceedings before the Convention institutions.", "45. The Government left the matter to the Court's discretion. The", "Delegate of the Commission did not express a view.", "46. Taking into account the fact that it has accepted only one of the", "complaints and making its assessment on an equitable basis, the Court", "awards the applicant FRF 20,000 including VAT." ]

[ "THE CIRCUMSTANCES OF THE CASE", "A. Asylum proceedings", "11. The applicant arrived in Belgium in the summer of 2007. On 30 July 2007, when she was eight months pregnant, she lodged an application for asylum in which she stated that she had fled her country after the family of the child’s father, M.A., in whose home she had lived since the age of eleven, had tried to put pressure on her to have an abortion.", "12. Because the applicant was a minor, a guardian was appointed. The guardianship ended when the applicant reached full age on 26 December 2007.", "13. After the applicant’s fingerprints had been recorded in the EURODAC system, the Aliens Office observed that she had already lodged an asylum application in Malta on 29 June 2007.", "14. On 3 August 2007 the Aliens Office requested the Maltese authorities to take charge of the applicant’s asylum application under Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin II Regulation”). On 17 September 2007 the Maltese authorities accepted the request.", "15. The applicant nevertheless remained in Belgium on account of the request for leave to remain which she had lodged and the ensuing proceedings (see paragraphs 37 et seq. below).", "16. Subsequently, owing to the imminent birth of the applicant’s second child (see paragraph 24 below), the Aliens Office decided in early 2009 to examine her asylum application itself. A first interview was held, after which the file was sent to the Commissioner General for Refugees and Stateless Persons (“the Commissioner General”).", "17. On 25 May 2010 the Commissioner General rejected the asylum application because of inconsistencies in the applicant’s account. Among other factors, the Commissioner General observed that the applicant had claimed not to have applied for asylum in another country. She had also been unable to explain how she had travelled to Belgium and did not know how much time she had spent in Malta or the exact identity of the persons she had lived with in Nigeria.", "18. The applicant appealed to the Aliens Appeals Board. In judgment no. 49.384 of 12 October 2010, the Board upheld the Commissioner General’s decision on the grounds that no credence could be lent to the applicant’s alleged fear of pursuit or to the existence of a real risk of serious harm.", "19. No administrative appeal on points of law was lodged with the Conseil d’État against that judgment.", "B. The applicant’s medical, family and social situation", "20. On 1 August 2007, in the course of an antenatal examination, the applicant was diagnosed as HIV positive with a serious immune system deficiency requiring antiretroviral (“ARV”) treatment.", "21. The applicant gave birth to her first child on 5 September 2007. The infant was given treatment to prevent HIV infection.", "22. In October 2007 a course of ARV treatment (a combination of the drugs Kalestra and Combivir) was started at St Pierre University Hospital in Brussels (“the University Hospital”).", "23. During 2008 the applicant attended a semi-residential facility and was monitored by the not-for-profit association Lhiving, which specialises in providing psychosocial assistance to underprivileged persons living with HIV and to their children.", "24. On 27 April 2009 the applicant gave birth to a second child by the same father, M.A. (see paragraph 36 below).", "25. On 14 July 2010 the University Hospital, at the request of the Aliens Office, issued a medical certificate which stated that the applicant’s treatment had been changed to a combination of the drugs Kivexa, Telzir and Norvir.", "26. On 25 November 2010 the University Hospital issued a further certificate stating that the applicant’s CD4 count had stabilised at 447, with an undetectable viral load. On the same date an official of the association Lhiving drew up a report on the applicant’s psychosocial situation, stressing the need to provide her with psychological support because of her young age and her introverted temperament.", "27. In the meantime, following the refusal of her request for leave to remain on medical grounds (see paragraph 47 below), the applicant’s certificate of registration, which allowed her free access to the treatment she required and to material assistance from the Brussels social welfare office, was withdrawn. She lodged an appeal with the Brussels Employment Tribunal seeking material assistance, and made a fresh application to the social welfare office.", "28. On 16 May 2011 the social welfare office decided to continue providing financial assistance to the applicant. As a result, the appeal to the Employment Tribunal was struck out of the list.", "29. On 14 December 2011 the University Hospital issued a certificate addressed to the Aliens Office in the following terms:", "“The latest blood test of 14 December 2010 shows a CD4 count of 269 and a viral load of 42,900. These may be due to treatment failure (development of resistance?) or to poor adherence to the treatment, possibly linked to the patient’s numerous social problems ...”", "30. On 23 February 2012 the University Hospital issued a certificate addressed to the Aliens Office stating that the treatment had been modified, with the use of Telzir and Norvir being discontinued and being replaced by a combination of Reyataz and Kivexa.", "31. On 1 March 2012 a report by the association Lhiving stated that the applicant was continuing to receive, and to need, psychosocial support and that the focus was on working with the applicant on articulating her concerns and on issues including the difficulties connected to her role as a mother, family life, her children’s schooling in Dutch and the monitoring of her own illness.", "32. A further certificate addressed to the Aliens Office on 7 June 2012 by the University Hospital stated that the applicant was pregnant with her third child and was due to give birth in November 2012. The certificate went on to state as follows:", "“Her latest blood sample shows an uncontrolled HIV infection with an increased viral load of 18,900 and a reduced T4 count of 126. The situation is therefore worrying as regards both the patient and her unborn child.", "...", "Medical treatment/medical supplies: Reyataz 200 2 per day and Kivexa.", "Need for regular blood tests with lymphocyte typing and HIV viral load, stethoscope, blood pressure monitor, weighing scales, needles and syringes, dressings, gynaecological check-ups ...", "Specific medical needs? Supervision by a multidisciplinary team specialising in the treatment of HIV.”", "33. A similar certificate was issued on 1 February 2013 which reported the addition of the drug Norvir, an increase in the applicant’s T4 count to 200 and a lower positive viral load. It confirmed that the situation was worrying both for the applicant and for her children.", "34. In the meantime, on 23 November 2012, the applicant gave birth to a third child. According to the birth certificate, M.A. was again the father.", "35. On 18 March 2013 the association Lhiving issued another certificate similar to the previous one (see paragraph 31 above), stating that the applicant was continuing to receive psychosocial support.", "36. Beginning on an unspecified date M.A., the father of the three children, spent occasional periods in Belgium without a residence permit.", "C. Refusal of leave to remain on medical grounds and order to leave the country", "37. On 30 November 2007 the applicant submitted a request for leave to remain on medical grounds under section 9 ter of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (“the Aliens Act”).", "38. On 13 February 2008 the Aliens Office declared the request admissible and a certificate of registration was issued to the applicant, authorising her to remain in Belgium for three months.", "39. At the request of the Aliens Office, the applicant sent the latter a medical certificate drawn up by her general practitioner stating that she was HIV positive and would be unable to travel for six months, during which time she required psychological counselling.", "40. On 8 July 2008 the Aliens Office enquired of the Maltese authorities about the accessibility of the appropriate medical treatment in Malta. The same day the applicant was examined by the Aliens Office’s medical adviser, who considered that she would be able to travel as of 1 September 2008.", "41. On 4 August 2008, on the basis of the information received from the Maltese authorities, the medical adviser of the Aliens Office wrote as follows:", "“[From] a medical point of view, ... although [AIDS] can be considered to be a disease entailing a real risk to life or physical well-being, in the present case [S.J.] is not at risk of inhuman or degrading treatment since treatment is available in Malta.”", "42. On 20 August 2008 the Aliens Office issued a decision refusing the request for leave to remain on medical grounds, stating that it was clear from the information received from the Maltese embassy and featured on the website of the Maltese Minister of Social Policy that treatment for AIDS was available in Malta and was accessible to non-nationals.", "43. The applicant lodged an appeal with the Aliens Appeals Board against the Aliens Office’s decision of 20 August 2008.", "44. On 11 March 2009 the Aliens Office revoked its decision of 20 August 2008, as a consequence of its decision to examine the applicant’s asylum application (see paragraph 16 above), and began to explore the possibilities for treatment in Nigeria. The applicant was again issued with a certificate of registration and the Aliens Office requested a fresh medical opinion from its medical adviser concerning a possible return to Nigeria.", "45. On 7 May 2009 the Aliens Appeals Board, noting that the Aliens Office’s decision of 20 August 2008 had been revoked, dismissed the applicant’s appeal as being devoid of purpose.", "46. On 17 September 2010 the Aliens Office’s medical adviser issued the following opinion:", "“From a medical point of view, the applicant’s infection, although it can be considered to entail a real risk to life or physical well-being if it is not treated in an appropriate manner and is not monitored, does not involve a real risk of inhuman or degrading treatment, given that the treatment and monitoring in question are available in Nigeria. There are therefore no medical objections to the applicant’s return to Nigeria, her country of origin.”", "47. On the basis of this opinion and the information received from the Nigerian embassy, on 27 September 2010 the Aliens Office refused the request for leave to remain submitted on 30 November 2007, but extended the applicant’s registration pending the outcome of the asylum proceedings. The reasons for the decision read as follows:", "« [The] medication currently being administered to the applicant is available in Nigeria ... Nigeria has numerous treatment programmes for the applicant’s condition ... The cost is low because the authorities subsidise the medication ... The applicant’s condition can be treated free of charge in all the country’s public hospitals. ... Furthermore, in Ogun State, where the applicant was born and lived, there are two hospitals. ... Moreover, it appears very unlikely that in Nigeria, the country where she spent the first eighteen years of her life, the applicant would not have family, friends or acquaintances willing to take her in, help her to obtain the necessary medication and/or provide her with temporary financial support. ... It follows that it is not established that her return to her country of origin ... would be in breach of European Directive 2004/83/EC or of Article 3 of the European Convention on Human Rights.”", "48. On 20 October 2010 – the asylum proceedings having ended in the meantime with the rejection of the applicant’s asylum application (see paragraph 18 above) – the Aliens Office confirmed its decision refusing the applicant’s request to have her residence status regularised. An order to leave the country was served on the applicant on 22 November 2010, worded as follows:", "“Pursuant to the decision of ... 20 October 2010, the aforementioned [S.J.] and her children ... are hereby ordered to leave Belgium not later than [20 December 2010] ...", "GROUNDS:", "The applicant has remained in the Kingdom beyond the time-limit laid down in accordance with section 6, or is unable to provide evidence that this time-limit has not been exceeded (Act of 15 December 1980, section 7, sub-paragraph 1.2 o ).", "If the applicant fails to comply with this order she faces possible removal from the country and detention for that purpose for the time strictly necessary to enforce the measure, in accordance with section 27 of the Act. This is without prejudice to any judicial proceedings that may be brought on the basis of section 75 of the Act.", "In accordance with section 39/2, paragraph 2, of the Act of 15 December 1980, an application to set aside the present decision may be made to the Aliens Appeals Board. The application must be lodged within thirty days of notification of the present decision.", "A request for a stay of execution may be lodged in accordance with section 39/82 of the Act of 15 December 1980. Except in cases of extreme urgency, the request for a stay of execution and the application to set aside must be submitted in a single document.”", "49. On 26 November 2010 the applicant lodged a request under the extremely urgent procedure for a stay of execution of the Aliens Office’s decision of 20 October 2010 and the order to leave the country of 22 November 2010, together with an application to set aside those decisions. She alleged a violation of Articles 3, 8 and 13 of the Convention on account of the risk that she would not have access to the appropriate treatment if she returned to Nigeria and of the infringement of her right to respect for her private and family life.", "50. The request for a stay of execution was rejected by the Aliens Appeals Board in judgment no. 51.741 of 27 November 2010. The Board gave the following reasons for its decision:", "“... The applicant acted in an alert and diligent manner in lodging a request on the fourth day following notification of the impugned decision, but has not shown by means of specific evidence that a stay of execution of the measure in question granted under the ordinary procedure would be too late. The impugned order states that the applicant has until 22 December 2010 to leave the country. For the time being, the applicant is not being detained with a view to her repatriation and no date has been set for repatriation.", "She simply asserts that a stay of execution under the ordinary procedure would be too late since the time taken to process requests is four to five months.", "The mere fear that the impugned decision could be enforced at any time after 22 December 2010 does not mean that a stay of execution of the decision could not be granted in good time under the ordinary procedure.", "In the present case it has not been shown that there is extreme urgency.", "... The Board would refer to the possibility ... of lodging a request for interim measures under the extremely urgent procedure during the proceedings. In that case, [that request and the request for a stay of execution] may be examined jointly.”", "51. On 8 December 2010 the applicant lodged an appeal on points of law with the Conseil d’État against the Aliens Appeals Board judgment of 27 November 2010. She alleged that the risk of serious and irreversible harm in the event of her return to Nigeria, and the presence of her two young children, had not been specifically taken into consideration, and that appeals to the Aliens Appeals Board were ineffective.", "52. On 24 December 2010 the time-limit for enforcement of the order to leave the country was extended by the Aliens Office for one month, as follows:", "“Grounds: exceptional reason (awaiting decision by European Court of Human Rights).", "Please request a further extension each month. The request will be reviewed each month in the light of developments in the case.”", "53. On 6 January 2011 the Conseil d’État declared the appeal against the Aliens Appeals Board judgment of 27 November 2010 inadmissible. It held that the arguments relied on by the applicant, even supposing that they were admissible, were in any event manifestly unfounded since the assessment of extreme urgency was a matter solely for the judge hearing the case on the merits and the applicant could still submit a request for a stay of execution under the ordinary procedure, together with a request for interim measures made during the proceedings. She therefore had effective remedies available to her.", "54. According to the information in the file, the application to set aside the decisions of the Aliens Office (see paragraph 49 above) is still pending before the Aliens Appeals Board. In reply to a letter from the applicant asking whether a hearing date had been set, the registry of the Aliens Appeals Board informed her in a letter of 14 May 2012 that the Board was making every effort to ensure that her case was dealt with as quickly as possible.", "55. On 11 February 2013, following a request from the Government made in the context of the proceedings before the Court, the Aliens Office’s medical adviser prepared a fresh report on the applicant’s medical situation on the basis of a medical certificate issued by the University Hospital in 2010 (see paragraph 25 above). The report noted that the applicant was receiving daily treatment using a combination of three drugs (Kivexa, Telzir and Norvir). The report continued as follows:", "“It appears from the medical certificate of 25 November 2010 that the applicant is making good progress and that her immunity has stabilised at 447 with a viral load that was undetectable on 5 May 2010. We have no other medical certificates providing clinical and immunological data after November 2010 and/or concerning a change in the applicant’s medical condition or her medication.", "The aforementioned medical certificate of 25 November 2010 does not show that travel was or is strongly contra-indicated for this patient [or that she] is in need of medical attention.", "As regards the availability of medication and monitoring in the patient’s country of origin, Nigeria, the following sources were consulted (this information has been added to the patient’s administrative file):", "- information from the MedCOI database ... of local doctors working in the patient’s country of origin who work on a contract basis for the medical advisory service of the Dutch Ministry of the Interior, dated 1 June 2011 ... and 28 March 2012...;", "- information from the site http://www.abuth.org ...;", "- information from the site http://www.buth.org ...;", "- information from the site http://www.who.int/selection_medicines/country_lists, (...), containing a list of the main drugs available in Nigeria in 2010.", "It is clear from this information that drug therapy using a combination of abacavir, lamivudine and protease inhibitors is available in Nigeria. The information shows that the current availability of fosamprenavir in Nigeria is not confirmed, but that other protease inhibitors are available as an alternative, for instance a preparation combining lopinavir and ritonavir...", "Laboratory tests (to determine CD4 count) are available in Nigeria. Treatment/monitoring by a specialist in internal medicine is also available in Nigeria.”" ]

[ "THE LAW", "56. On 26 August 2014 the Court received a proposal for a friendly settlement from the Government providing as follows:", "“The applicant’s case is ... characterised by strong humanitarian considerations weighing in favour of regularising her residence status and that of her children on the basis of section 9 bis of the Aliens Act of 15 December 1980.”", "57. On 11 September 2014 the Court received the following reply from the applicant:", "“[The applicant] has decided to accept the proposal made by the Belgian State, subject to certain conditions.", "Firstly, that she and her three children be granted unconditional and indefinite leave to remain.", "Secondly: [she] also claims compensation for the pecuniary and non-pecuniary damage sustained on account of the Belgian State’s decision finding her application for regularisation of her status under section 9 ter of the Aliens Act to be unfounded and on account of the order to leave the country.", "...", "[A] sum of 7,000 euros ex aequo et bono would cover the suffering undergone by the [applicant] as a result of the Belgian State’s decision.", "Thirdly: [the applicant] will agree to the striking-out of the case from the Court’s list only once the residence permit has been issued to her in person.", "...”", "58. On 17 September 2014 the Government informed the Court that they agreed to the conditions stipulated by the applicant. They specified that the applicant’s residence status, and that of her children, would be regularised immediately and unconditionally on an indefinite basis.", "59. The Court notes that, on 6 January 2015, the applicant and her children were issued with residence permits granting them indefinite leave to remain.", "60. The Court further considers that the settlement is based on respect for human rights as defined in the Convention and its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court).", "61. Accordingly, it is appropriate to strike the case out of the list in accordance with Article 39 § 3 of the Convention." ]

[ "10. The applicant was born in 1985 and now resides in the village of Kütükușağı in Turkey.", "11. In 1991, when he was six years old, the applicant entered Denmark together with his mother and four siblings to join his father. The latter died in 2000.", "12. On 9 January 2001, by a judgment of the City Court of Copenhagen ( Københavns Byret, hereinafter “the City Court”), the applicant was convicted of robbery and sentenced to imprisonment for one year and three months, nine months of which were suspended, and placed on probation for two years.", "Criminal proceedings", "13. On 29 May 2006 the applicant, as part of a group of several persons, attacked a man; several kicks or blows with cudgels or other blunt objects were administered to the latter’s head and body, thereby inflicting serious traumatic brain injury that caused his death. It appears that the applicant was caught by the police on the spot, whereas all the others involved in the incident managed to escape.", "First round of proceedings", "14. In connection with the above-mentioned incident, criminal proceedings were brought against the applicant, who was charged with assault with highly aggravating circumstances.", "Evidence examined by the courts", "(a) Reports of the Immigration Service", "15. In the context of those proceedings, on 17 September 2007 the Immigration Service ( Udlændingeservice ) issued a report on the applicant. It stated, in particular, that on 1 February 1991 the applicant had been granted residence, with a possibility of permanent residence under the Aliens Act, by reference to his father living in Denmark. On or before 11 May 2004 his residence permit had been made permanent. The report also stated that the applicant had been lawfully resident in Denmark for approximately fourteen years and eight months; that his mother and four siblings lived in Denmark; and that he had been to Turkey between five and ten times for periods of two months to visit his family. However, he had not been to Turkey since 2000. The report referred to the applicant’s statements to the effect that he had no contact with persons living in Turkey, did not speak Turkish and only spoke a little Kurdish. Also, he had stated that he heard voices and suffered from a thought disorder and that he was being administered sedatives. In view of the information given by the prosecution on the nature of the crime in conjunction with the considerations mentioned in section 26(1) of the Aliens Act ( udlændingeloven; see paragraph 76 below), the Immigration Service endorsed the prosecution’s recommendation of expulsion.", "16. In a supplementary report of 2 April 2008 the Immigration Service reaffirmed its recommendation of expulsion.", "(b) Medical opinions", "17. A report on the examination of the applicant’s mental status dated 13 March 2008 which the Ministry of Justice ( Justitsministeriet ) obtained from the Department of Forensic Psychiatry ( Retspsykiatrisk Klinik ) concluded, in particular, that it was highly likely that the applicant had a slight mental impairment, but he was not found to be suffering from a mental disorder and could not be assumed to have been suffering from a mental disorder at the time when the crime had been committed.", "18. The report furthermore stated that the applicant’s childhood and adolescence had been significantly lacking in stimulation and characterised by non-existent parental care and poor social conditions, and that he and his siblings had been forcibly removed from home and placed in foster care. According to the report, from his early childhood the applicant had displayed behavioural disturbance and a lack of social adaptation, and he had been attracted to criminal environments since his teens. Since that time, he had also smoked a lot of cannabis, which might have hampered his personality and intellectual development. Over the years, he had been placed in various socio-educational institutions but they had had difficulties accommodating his needs owing to his externalising behaviour, and the socio-educational support and therapy had not changed his condition and behaviour.", "19. The report also mentioned that, in the context of his medical assessment, the applicant had insisted that he had experienced both visual and auditory hallucinations, but no objective findings of hallucinations had been made. He had made similar claims in the course of previous medical assessments but those complaints had apparently ceased when the applicant had no longer found it relevant to make them. The report added that the applicant’s description of those symptoms did not correspond to the usual description of hallucinations, and it was thus found that his description had to be classified as simulation. The report stressed that the applicant needed long-term regular and well-structured therapy, and recommended that he should be committed to a secure unit of a residential institution for the severely mentally impaired.", "20. In an opinion of 16 April 2008, the Medico-Legal Council ( Retslægerådet ) stated, among other things, that the applicant had had a disadvantaged childhood and adolescence, had presented a pronounced behavioural disturbance and had later become involved in criminal activities. It also stated that the applicant had a mental impairment, but otherwise showed no signs of organic brain injury; that he smoked a lot of cannabis; that he had previously been in contact with the mental health system several times, but no definite diagnosis of psychotic disorder had been made despite complaints of psychotic symptoms. In its assessment, the Medico-Legal Council found that the applicant’s complaints of auditory hallucination could be characterised as simulation. He was also found to be mentally impaired with a mild to moderate level of functional disability and to be suffering from personality disorder characterised by immaturity, lack of empathy, emotional instability and impulsivity. He had a strong need for clear boundaries to give him structure and support.", "Court decisions", "21. On 9 October 2007, the High Court of Eastern Denmark ( Østre Landsret, hereinafter “the High Court”) convicted the applicant of assault with highly aggravating circumstances under Articles 246 and 245(1) of the Penal Code ( straffeloven ) (see paragraph 75 below) and sentenced him to seven years’ imprisonment and expulsion from Denmark with a permanent ban on re-entry.", "22. On appeal, on 22 May 2008 the Supreme Court ( Højesteret ) quashed the judgment and returned the case to the High Court for a fresh examination. With reference to the available medical evidence (see paragraphs 17-20 above), the court stated, in particular, that it had doubts that the sentence of imprisonment had been justified in the circumstances of the present case.", "Second round of proceedings", "23. Following the remittal of the case, the High Court examined the criminal case against the applicant anew.", "Additional evidence examined by the courts", "24. In a report of 18 June 2009 a psychiatric specialist pointed out that the applicant suffered from a condition of mental bewilderment which, by that time, had been obvious for more than four weeks; and that his recent development raised doubts as to whether he most likely suffered from a permanent mental disorder, or whether, owing to his intelligence level combined with his deviating distinctive personality traits, he was suffering from a permanent condition comparable to mental impairment.", "25. On 14 July 2009 the Medico-Legal Council stated, with reference, in particular, to the report of 18 June 2009, that the applicant suffered from a more permanent mental disorder and that he had probably also been suffering from a similar mental condition at the time when the crime with which he had been charged had been committed. The report further reiterated the finding of the report of 16 April 2008 (see paragraph 20 above), and stated that subsequent observations made at a residential institution for the severely mentally impaired – where the applicant had been placed – had revealed his ongoing threatening and physically aggressive behaviour. For a long period, the applicant had been considered to have been obviously mentally ill and to be suffering from paranoid delusions and formal thought disorder. The report pointed out that those were symptoms most likely linked to schizophrenia; if that was the case, it was very likely that the applicant had been suffering from a mental disorder at the time when the crime with which he had been charged had been committed. The Medico-Legal Council recommended in its report that, if found guilty as charged, the applicant should be committed to forensic psychiatric care.", "Court decisions", "26. By a judgment of 17 October 2008 the High Court found that the applicant had violated Articles 245(1) and 246 of the Penal Code but was exempt from punishment by virtue of Articles 16(2) and 68 thereof (see paragraph 75 below). In that connection it referred to the reports of 13 March and 16 April 2008 (see paragraphs 17-20 above). It thus sentenced him to committal to the secure unit of a residential institution for the severely mentally impaired for an indefinite period. The court also ordered the applicant’s expulsion from Denmark with a permanent ban on his re-entry.", "27. In respect of the expulsion order, the High Court referred to the reports of the Immigration Service dated 17 September 2007 and 2 April 2008 (see paragraphs 15-16 above) and emphasised that the applicant had moved to Denmark at the age of six when granted family reunification with his father, who lived in Denmark; that he had been lawfully resident in Denmark for about fourteen years and eight months; that he was not married and did not have any children; and that his entire family, comprising his mother and four siblings, lived in Denmark, the only exception being his maternal aunt, who lived in Turkey. It was also emphasised that he had attended elementary school in Denmark for seven years and had been attached to the Danish labour market for about five years, but that at the moment he received a disability pension; that he had been to Turkey between five and ten times for periods of two months to visit his family, but not since 2000, and that he did not speak Turkish, but only spoke a little Kurdish. On the other hand, it was emphasised that the applicant had been found guilty of a very serious offence against the person of another, which was a serious threat to the fundamental values of society. Against that background the High Court found, on the basis of an overall assessment, that expulsion would not be conclusively inappropriate under the relevant domestic law then in force, or in breach of Article 8 of the Convention.", "28. The applicant appealed against the judgment to the Supreme Court.", "29. In the meantime, on 11 March 2008, a supplementary interview was conducted with the applicant during which he stated, inter alia, that he had last visited Turkey in 2001, that he was fluent in Kurdish, and that his family in the village of Koduchar lived in a house owned by his mother.", "30. By a judgment of 10 August 2009, the Supreme Court changed the applicant’s sanction and sentenced him to committal to forensic psychiatric care, upholding the expulsion order. It took into account the medical reports of 18 June and 14 July 2009 (see paragraphs 24-25 above), and the applicant’s statements made during his supplementary interview (see the previous paragraph). The Supreme Court stated as follows:", "“[The applicant], who is now 24 years old, moved to Denmark from Turkey at the age of six. He has attended school in Denmark, and his close family members comprising his mother and his four siblings live in Denmark. He is not married and has no children. He receives disability pension and is not otherwise integrated into Danish society. He speaks Kurdish, and during his childhood and adolescence in Denmark he went to Turkey between five and ten times for periods of two months to visit his family. He last visited Turkey in 2001, where his mother owns a property.", "Having regard to the nature and gravity of the offence, we find no circumstances making expulsion conclusively inappropriate – see section 26(2) of the Aliens Act – nor do we find expulsion to be contrary to Article 8 of the Convention.”", "31. The decision on expulsion was made by a majority of five judges out of six. The dissenting judge stated as follows:", "“[The applicant] came to Denmark at the age of six. Accordingly, he spent most of his childhood and adolescence and went to school in Denmark, which is also where his closest family (his mother and his four siblings) live. He visited Turkey several times until the death of his father, but he has not visited the country since 2001. He does not have any contact with relatives or other persons living in Turkey. He speaks Kurdish, but not Turkish.", "Accordingly, I find that [the applicant’s] ties with Denmark are so strong and his ties with Turkey so modest that they constitute circumstances making expulsion conclusively inappropriate – see section 26(2) of the Aliens Act – despite the gravity of the offence. For this reason, I vote in favour of dismissing the claim for expulsion.”", "Revocation proceedings under section 50a of the Aliens Act", "32. On 3 January 2012 R.B., the applicant’s guardian ad litem, requested that the prosecution review his sentence, and on 1 December 2013 the prosecution brought the applicant’s case before the City Court in pursuance of Article 72(2) of the Penal Code (see paragraph 75 below), requesting that the sanction be changed from a sentence of forensic psychiatric care to treatment in a psychiatric department. Under section 50a of the Aliens Act (see paragraph 76 below), the prosecution also petitioned the court to decide simultaneously whether the order to expel the applicant was to be upheld. For its part, the prosecution argued that the expulsion order should be upheld.", "Medical opinions", "33. In that connection, on various dates medical statements were obtained from three psychiatrists (K.A., M.H.M. and P.L) who, at various times, had been responsible for the applicant’s treatment at the Mental Health Centre of the Hospital of Saint John.", "K.A.’s statement", "34. On 5 April 2013 K.A. observed in a written statement, among other things, that the applicant had been in psychiatric care since 2008 owing to the diagnoses of paranoid schizophrenia, mild intellectual disability and cannabis dependence. However, it had been discovered during the relevant period that his intellectual capacity level was higher, for which reason he had not met the criteria for the diagnosis of mental impairment, and that diagnosis had been rejected. The initial three to four years of the relevant period had been characterised by continuous cannabis abuse, incidental abuse of hard drugs and numerous instances of absconding, but the applicant had made progress in recent years. He had quit his abuse of hard drugs, with the result that there had been a considerable reduction in his externalising behaviour; no instances of absconding had been recorded since autumn 2012. During the past two months the applicant had not abused any cannabis, and he was making targeted efforts to stay clean in the open psychiatric unit. He had previously been complicit in smuggling cannabis to fellow patients, which had been his “old” way of living, but he had managed to resist doing so in the past six months. The applicant was prepared to cooperate, and he had agreed without any problems to undergo antipsychotic therapy. It was therefore recommended that the current sanction be modified from a sentence of forensic psychiatric care to treatment in a psychiatric department under supervision by both the Prison and Probation Service and the department following his discharge so that, in consultation with the consultant psychiatrist, the Prison and Probation Service could make a decision on readmission under Article 72(1) of the Penal Code.", "M.H.M.’s statement", "35. A letter from M.H.M. dated 18 July 2013 stated, in particular, that on 5 February 2013, the applicant had been transferred to an open ward (R3) for substance abuse treatment. Around March he had claimed to have progressive symptoms, and his doses of antipsychotics had been increased, having been lowered some months before. Since the patient’s anger had been found to be increasing despite the increase in doses, it had been decided to transfer him to a closed ward on 5 April 2013; however, he had left the area and an alert had had to be circulated, but he had quickly returned again by himself. The applicant had absconded again briefly on 18 April 2013, but had returned and had not appeared to be under the influence of drugs. On 21 April 2013, the applicant had threatened a carer, whom he had then beaten in the head without any warning. The following day he had had to be immobilised with belts because of new threats. On 5 May 2013, he had attacked and beaten a carer without any warning, and he had been found in a severely psychotic state. Immobilisation with belts had been applied until 12 May 2013, and during that period his state had been severely fluctuating, being at times severely psychotic and aggressively threatening. He had willingly accepted a change in medication to Leponex tablets with the simultaneous scaling down of treatment with Cisordinol (antipsychotics). His condition had quickly improved, and he now appeared to have returned to his usual condition, being friendly, cooperative and motivated to continue therapy. The applicant’s drug abuse was very limited and he only used cannabis, although he was unable to refrain from continuing to use that substance.", "36. In his written statement M.H.M. further pointed out that the applicant was highly motivated to undergo psychiatric treatment, including treatment with psychoactive drugs. However, the applicant had expressed strong doubts as to whether he would be able to continue this treatment to an adequate extent if he was deported from Denmark and was offered treatment that did not comprise a fairly intensive psychiatric element. The applicant clearly feared that he would not have the resources to continue the necessary psychiatric therapy, including pharmacotherapy, if deported from Denmark. In this connection, there was deemed to be a high risk of pharmaceutical failure and resumed abuse, and consequently a worsening of his psychotic symptoms and a risk of aggressive behaviour. His current medication in the form of Leponex tablets was an antipsychotic that had to be administered on a daily basis. It was the overall assessment that a potential interruption of the treatment would give rise to a significantly higher risk of offences against the person of others due to a worsening of his psychotic symptoms.", "37. In his letter M.H.M. stated lastly that the medication currently being administered to the applicant included 50 mg of Risperdal Consta (risperidone) every 2 weeks (prolonged-release antipsychotic suspension for injection), and 250 mg tablets of Leponex daily (antipsychotic medication with clozapine as the active pharmaceutical ingredient).", "P.L.’s statements", "38. In a written statement of 13 January 2014, P.L., who had been responsible for the treatment of the applicant since mid-July 2013, pointed out, in particular, that the applicant was still in a closed ward and that, for the past six months, his condition had been stable; he had abstained for long periods from smoking cannabis. Consequently, the applicant had been allowed leave to an increasing extent in accordance with the rights granted by the relevant regulations. On one occasion in autumn 2013, the applicant had absconded while on leave; on all other occasions of leave he had observed the agreement made.", "39. The applicant was cooperative and did not appear productively psychotic in any way. He was generally forthcoming, but as previously, his behaviour continued to be characterised by some impulsivity and immaturity. The applicant had relapsed into smoking cannabis although he understood the importance of abstaining from such abuse. He had made a great effort not to engage in substance abuse; he was still aware that he had to take care not to allow such abuse to develop out of control.", "40. The applicant had indicated to P.L. on numerous occasions that he sincerely regretted having committed the crime for which he had been sentenced. The applicant also said that he was doing well with the current antipsychotic treatment regime, which he was completely prepared to continue when he was ready for discharge at some point.", "41. The letter further stated that the applicant had responded well to the combination therapy with Risperdal and Leponex. He denied having any psychotic symptoms such as delusions and hallucinations. Except for one single incident in which the applicant had been seriously provoked by a fellow patient and had kicked that person, he had not exhibited any externalising behaviour for the past six months.", "42. On the basis of the course of the applicant’s treatment, P.L. supported the recommendation of a variation of the sanction from a sentence of forensic psychiatric care to a sentence of forced psychiatric treatment. The health professional went on to note that the applicant’s prospect of recovery was good if, when released, he could be reintegrated into society by being offered a suitable home and intensive outpatient therapy in the following years. The applicant was aware of his disease and clearly acknowledged his need for therapy. On the other hand, the applicant’s prospect of recovery was bad if he were to be discharged without follow-up and supervision. P.L. agreed with M.H.M. (see paragraph 36 above) that the potential interruption of the treatment gave rise to a significantly higher risk of offences against the person of others because of the worsening of the applicant’s psychotic symptoms.", "43. When heard by the City Court on 7 October 2014, P.L. stated that, during the period that had elapsed since his medical statement of 13 January 2014, the applicant had been doing well in the safe environment at the department. The applicant had kept to the agreements made, and he had been able to have a job. In P.L.’s assessment, the applicant would lose focus if he did not have a solid framework. The applicant’s personal history showed this. The applicant had demonstrated violent behaviour for a long time, including at school and while in forensic psychiatric care. The violent behaviour had diminished as a result of the treatment.", "44. P.L. added that the medical treatment of the applicant was an expert task. He was being given complex treatment, and the treatment plan had to be carefully followed, including the taking of blood samples for somatic reasons on a weekly or monthly basis. The applicant needed to receive his medicine in order to avoid serious relapses. It was a condition for making a recommendation to amend the sanction that the applicant should be taken care of through a range of treatment initiatives, in addition to the correct administration of medicines and the necessary arrangements for blood sampling. Some of the other treatment initiatives consisted of a regular contact person for supervision of the applicant, a follow-up scheme to make sure that the applicant paid attention to the medical treatment administered, assistance from a social worker to deal with any dependence and other problems and assistance for making sure that he was in the right environment and was offered an occupation. These elements of his treatment were essential to prevent relapses. These initiatives were designed as an element of his treatment in Denmark. In P.L.’s assessment, the same offers of treatment would not be available to the applicant in Turkey. If he relapsed, this could have serious consequences for himself and his environment.", "45. P.L. believed that the applicant could become very dangerous if he relapsed, which was likely to happen if he was not given the right medication and support, such as that which he was currently receiving. According to P.L., there were highly skilled psychiatrists in cities in Turkey, but probably not in the small village in which the applicant was likely to settle, with the result that the applicant would not be taken care of in the same way as in Denmark.", "Opinions of the Immigration Service", "46. On 8 October 2013 the Immigration Service issued an opinion on the issue of the applicant’s expulsion under section 50a of the Aliens Act. It stated, in particular:", "“Against this background, the Copenhagen Police ( Københavns Politi ) has requested an opinion on the treatment options in Turkey, and for the purpose of this case, we have been informed that the following medicinal products are currently being administered to [the applicant]:", "Risperdal Consta, which contains the active pharmaceutical ingredient risperidone, and Clozapine, which contains the active pharmaceutical ingredient clozapine.", "According to data from MedCOI [Medical Community of Interest], a database financed by the European Commission to provide information on the availability of medical treatment, the medicinal products Risperdal [risperidone] and Clozapine are available in Turkey, but their prices are not given.", "As regards the treatment options in Turkey, it also appears from data from MedCOI that all primary healthcare services are free and are provided by general practitioners, but that patients have to pay themselves if they are tested at a hospital laboratory in connection with primary healthcare services and in connection with prescriptions. ...", "...", "According to data from MedCOI, in 2010 in Turkey there were 2.20 psychiatrists per 100,000 inhabitants and 1.85 psychologists per 100,000 inhabitants, and this is the lowest rate among the countries in the European part of the World Health Organisation ...”", "47. On 4 July 2014 the Immigration Service issued a supplementary opinion which had been requested by the Copenhagen Police. The Immigration Service relied on a consultation response of 4 July 2014 from the Danish Ministry of Foreign Affairs, in which the latter had replied to the questions of the Immigration Service regarding treatment options in Konya, Turkey.", "48. The opinion stated, in particular:", "“...", "It appears from the medical statement of 13 January 2014 that [the applicant’s] recovery prospects are good if, when released, he can be reintegrated into society by being offered a suitable home and intensive outpatient therapy in the following years. On the other hand, his recovery prospects are bad if he is discharged without follow ‑ up and supervision.", "[The applicant] has pointed out that he has no social network in the village in Turkey in which he was born and lived with his family for the first years of his life, that he will be far away from psychiatric assistance in that village, and that he only understands a little Turkish because he is Kurdish-speaking.", "Opinion", "...", "By letter of 1 May 2014, which relates to the return of a Turkish national, the Immigration Service asked the Ministry of Foreign Affairs for assistance in obtaining information on treatment options in Konya, Turkey. The patient has been diagnosed with ‘ paranoid schizophrenia, sentenced to psychiatric placement, cannabis dependence syndrome, abstinent, overweight without specification’ and receives Risperdal Consta injections and Clozapine tablets.", "The Immigration Service asked for a reply to the following questions.", "The Ministry of Foreign Affairs has obtained information from the SGK, the social security institution in Turkey, and a physician at a rehabilitation clinic in Konya under the auspices of the public hospital named ‘ Konya Egitim ve Arastirma Hastanesi ’. The public hospital in Konya named ‘ Numune Hastanesi ’ has also been contacted and asked [the following] questions:", "(1) Is it possible for the patient to receive intensive care in a psychiatric hospital matching the needs of a person with the stated diagnosis in the province of Konya?", "Mentally ill patients are generally eligible for treatment at public hospitals and from private healthcare providers who have concluded an agreement with the Turkish Ministry of Health on an equal footing with other patients who apply to treatment facilities with a non-mental disease.", "Turkish nationals living in Turkey who are not covered by health insurance in another country will be covered by the general healthcare scheme in Turkey upon application. In order to be covered, the citizen must register with the Turkish Civil Registry and subsequently enquire at the District Governor’s office to lodge an application. The person has to pay a certain amount, depending on income, to be enrolled in the scheme. Examples of payment ...", "Monthly income of 0 to 357 [Turkish liras (TRY)]: No contribution is payable as the citizen’s contribution is paid by the Treasury", "Monthly income of TRY 358 to TRY 1,071: TRY 42 (approximately 105 [Danish kroner (DKK)])", "Monthly income of TRY 1,072 to TRY 2,142: TRY 128 (approximately DKK 320)", "Monthly income exceeding TRY 2,143: TRY 257 (approximately DKK 645)", "(2) Is the mentioned medication available in the province of Konya?", "The physician has confirmed that Risperdal Consta 50mg (in packs containing solution for 1 injection, manufacturer Johnson & Johnson, retail price: TRY 352.52, corresponding to [approximately] DKK 925) is generally available at pharmacies in Konya and is used for the treatment of patients suffering from paranoid schizophrenia. If a specific medication is sold out by one pharmacy, it is possible to enquire at another pharmacy or order the medication for later pick-up. It is a prescription drug.", "Medication with clozapine as the active pharmaceutical ingredient is available in two forms:", "Leponex 100mg, packs containing 50 tablets, manufacturer Novartis, retail price TRY 25.27 (corresponding to approximately DKK 66). Active pharmaceutical ingredient: Clozapine. Is generally available at pharmacies in Turkey. It is a prescription drug.", "Clonex 100mg, packs containing 50 tablets. Manufacturer Adeka Ilac, retail price TRY 25.27 (corresponding to approximately DKK 66). Active pharmaceutical ingredient: Clozapine. Is generally available at pharmacies in Turkey. It is a prescription drug.", "a. if yes, what [are] the costs for the patient?", "As the relevant medicines are prescription drugs, the patient normally has to pay the full price unless he or she is covered by the general healthcare scheme. In that case, the patient has to pay 20% of the retail price, and the remaining 80% is covered by the general healthcare scheme. However, patients covered by the general healthcare scheme may be exempted from paying the 20% patient’s share if the physician writes a special committee report which has been approved and signed by several physicians. Such a report will be issued if, in the assessment of the physician, the patient has an existing and real need for long-term treatment and it is deemed unreasonable that the patient has to pay the costs himself or herself. This assessment does not take into account the patient’s financial situation.", "(3) Do healthcare personnel in Konya speak Kurdish?", "According to the physician, the hospitals employ Kurdish-speaking staff, who can offer language assistance should the need arise. The public hospital in Konya named ‘ Numune Hastanesi ’ gave the same reply.", "Conclusion", "The medical report issued by the Mental Health Centre of the Hospital of Saint John does not give rise to any supplementary observations in addition to those made in our opinion of 8 October 2013 providing information on treatment options in Turkey.", "Accordingly, we refer to our opinion of 8 October 2013 in general. ...”", "The applicant’s statements", "49. The applicant was heard by the City Court on 6 February and 7 October 2014. He stated that he had no family in Turkey, as all his family members were in Denmark. He confirmed that, when he had been young, he had lived in a small village near Konya, and that the distance from that village to Konya was about 100 km. The applicant also stated that his mother no longer owned real property there, as it had been demolished; if expelled to Turkey, he would not know where to stay, as he was not familiar with that country and was not able to find his way there. He could not speak Turkish, only Kurdish; he spoke better Danish than Turkish.", "50. The applicant was worried that he would not be able to find a job and support himself because of his language difficulties, and that he would not be able to receive the necessary treatment in Turkey. He knew that there was a hospital in Konya, but it was for poor people and of a low standard; the hospitals in Ankara and Istanbul offered good treatment, but patients had to pay themselves, and he could not afford to pay. Since he took Leponex, he had an increased risk of blood clots and needed to be examined regularly by a doctor.", "51. When presented with a document of 1 September 2014 which stated that the applicant had worked at the Garden of Saint John from mid-May until 31 August 2014, he confirmed that he had been enrolled in the relevant project at the Hospital of Saint John and that it had gone well. This had created an opening for a job at a supermarket or a similar workplace under the so-called KLAP scheme (a scheme for creative, long-term, work planning run by the national Association for the Welfare of the Mentally Disabled).", "52. The applicant further stated that he needed to take his medicine to avoid becoming unstable. He expressed his fears that he might commit a serious crime if he did not receive his medicine. He therefore wanted someone to look after him and to help him take his medicine. The previous year, he had not received the right medicine, and had therefore become violent and threatened the staff. He wanted to find work. He wanted to live at his mother’s home at the beginning to have someone to keep an eye on him. He feared that things would go wrong if he were to live in Turkey.", "Other evidence", "53. The City Court also had before it a letter of 3 January 2012 and an email of 11 June 2013 from R.B., the applicant’s guardian ad litem.", "54. In the letter of 3 January 2012 R.B. requested the court to change the applicant’s sanction from forensic psychiatric care to a forced psychiatric treatment. The letter also stated that the applicant was a kind and forthcoming person; that he had matured over the years, and in that process he had broken off relations with the “bad” friends from his old life. In the letter R.B. also expressed the opinion that the applicant had come to the point where he needed the opportunities offered by a sentence of forced psychiatric treatment for maturing even further and training to live a life as a good citizen.", "55. In the email of 11 June 2013 R.B. stated, among other things, that the applicant wished to stay in Denmark; that all his family lived in Copenhagen, and that he would have no one to care for him if he suffered a further relapse of his condition while living in Turkey. As regards the applicant’s treatment, R.B. stated that there was still quite a way to go before he would be free from cannabis. His current treatment would have the greatest potential of success if he were afforded the degree of freedom allowed by a measure of forced psychiatric treatment. At that point, the applicant was able to function within the strict framework of forensic psychiatric care (the sanction that had been applied to him until that moment in time); however, it was necessary to test the effect of the treatment within a more flexible framework.", "56. The City Court also had regard to an email of 15 November 2013 from the Danish Ministry of Foreign Affairs to the Copenhagen Police and a letter of 25 November 2013 from the Police Section of the National Aliens Division ( Nationalt Udlændinge Center ).", "The City Court’s decision", "57. By a decision of 14 October 2014, the City Court amended the sentence imposed on the applicant from a sentence of forensic psychiatric care to treatment in a psychiatric department. As regards the expulsion order, the City Court found, regardless of the nature and gravity of the crime committed, that the applicant’s health made it conclusively inappropriate to enforce the expulsion order.", "58. The City Court observed, in particular, that the applicant had been in psychiatric care since 2008 owing to the diagnosis of paranoid schizophrenia. It also took notice of the medical information available, and in particular the fact that the applicant was highly motivated to undergo psychiatric treatment, including treatment with psychoactive drugs, that he was aware of his disease and clearly acknowledged his need for therapy, and that his recovery prospects were good if he was subject to follow-up and supervision in connection with intensive outpatient therapy when discharged. On that basis the City Court found that it would suffice in order to prevent reoffending and to satisfy the applicant’s need for treatment that the sanction be amended to treatment in a psychiatric department under supervision by both the Prison and Probation Service and the department in question following his discharge so that, in consultation with the consultant psychiatrist, the Prison and Probation Service could make a decision on readmission under section 72(1) of the Penal Code (see paragraph 75 below).", "59. The City Court went on to observe that the applicant, a 29-year-old Turkish national, had moved to Denmark from Turkey at the age of six under the family reunification programme. In his submission, he had neither family nor a social network in Turkey; the village in which he had lived with his family for the first years of his life was located 100 km away from Konya, the closest city, and accordingly far away from psychiatric assistance, and he only understood a little Turkish because he was Kurdish ‑ speaking. On the basis of the medical information, the court further accepted as fact that there was a high risk of pharmaceutical failure and resumed abuse, and consequently the worsening of the applicant’s psychotic symptoms, if he was not subject to follow-up and supervision in connection with intensive outpatient therapy when discharged and that this gave rise to a significantly higher risk that he would again commit offences against the person of others.", "60. The City Court also considered it a fact that mentally ill patients were generally entitled to receive treatment in Turkey, that it was possible to apply for enrolment in the general healthcare scheme with contributions linked to income, and that the relevant medication was available, as was assistance from Kurdish-speaking staff at the hospitals. At the same time, the court stressed that what was crucial was that the applicant had access to appropriate treatment in his country of origin. The City Court noted that, on the basis of the information provided, it was not clear whether the applicant had a real possibility of receiving relevant psychiatric treatment, including the necessary follow-up and supervision in connection with intensive outpatient therapy, if returned to Turkey. It thus allowed the applicant’s application for revocation of the expulsion order.", "Proceedings before higher courts", "61. The prosecution appealed to the High Court against the above ‑ mentioned decision in so far as it concerned the revocation of the expulsion order.", "62. The applicant and P.L. were heard before the High Court on 6 January 2015. The applicant made statements similar to those made before the City Court (see paragraphs 49-52 above). He also stated that he had not yet been able to get a job because of his criminal past, but he was in the process of looking for a job through the job search platform Jobbank. He also had the possibility of finding work and attending school through the relief organisation Kofoeds Skole. He was to visit the school next week, and he looked forward to activities there. He still had the opportunity to work at the Psychiatric Hospital of Saint John during the weekends, and he intended to take that opportunity.", "63. P.L stated, among other things, that the applicant had complete awareness of his illness; however, it was important that he was supervised regularly in order to adhere to the treatment. It was also important that he was supervised somatically, since Leponex could have the side-effect of an immune deficiency developing in the patient. Blood samples were to be taken regularly to check that no such deficiency had emerged. The patient should consult a doctor if sudden fever occurred, since this could be a sign of the immune deficiency. If the applicant experienced this side-effect, he should be followed closely, as in that case, he would have to be taken off Leponex, despite it having a positive effect on his aggressive behaviour.", "64. On 13 January 2015 the High Court reversed the City Court’s decision and refused to revoke the expulsion order.", "65. The High Court observed that, according to the medical information, the applicant suffered from paranoid schizophrenia and had a constant need for antipsychotics, in particular Leponex, and follow-up support to avoid psychotic symptoms, as well as the resulting risk that he would again commit offences against the person of others. It further considered it a fact that the applicant would be removed to Turkey if the expulsion order remained in effect, and that it was to be assumed that he would take up residence in the village in which he had been born and lived for about the first six years of his life, and which was located about 100 km from Konya.", "66. With reference to the information on access to medicines and specific treatment options in Turkey contained in the MedCOI database and the consultation response of 4 July 2014 (see paragraphs 47-48 above), the High Court further found that the applicant could continue the same medical treatment as he was being given in Denmark in the Konya area in Turkey, and that psychiatric treatment was available at public hospitals and from private healthcare providers who had concluded an agreement with the Turkish Ministry of Health. According to the information obtained, the applicant would be eligible to apply for free or subsidised treatment in Turkey if he had no or limited income, and in certain cases it was also possible to be exempted from paying the 20% patient’s share of medicines; assistance from Kurdish-speaking staff at hospitals was also available. The court also noted that the applicant was aware of his disease and of the importance of adhering to his medical treatment and taking the drugs prescribed. In such circumstances, the High Court found that the applicant’s health did not make his removal conclusively inappropriate. Finally, it emphasised the nature and gravity of the crime committed by the applicant, and the fact that he had not founded his own family and did not have any children in Denmark.", "67. Leave to appeal to the Supreme Court against the High Court’s decision was refused by the Appeals Permission Board ( Procesbevillingsnævnet ) on 20 May 2015. The relevant letter stated, in particular, that leave to appeal could only be granted if an appeal raised a question of principle or demonstrated particular reasons justifying a review; however, those conditions had not been met.", "Further developments", "68. In the context of the proceedings before the Grand Chamber, the parties informed the Court that the applicant had in the meantime been deported to Turkey in 2015.", "69. According to a police report submitted by the Government, the expulsion had taken place on 23 June 2015. The applicant was accompanied by his mother, who was issued with a return ticket to Turkey, the return flight to Denmark being one month later.", "70. The information provided by the applicant indicates that he now lives in a village located 140 km from Konya. The village has around 1,900 inhabitants. The applicant has no family or relatives in that village or in other parts of Turkey and leads a very isolated life, as he does not speak Turkish. He stays indoors as he does not know the streets and is afraid of getting lost and not being able to find his way back on account of his diminished intellectual capacity. He only leaves the house to visit a grocery store and to pick up some medication every once a while when he can afford this.", "71. According to the applicant, he found his way to the hospital for the first time six months after his arrival in Turkey. At present, he has to pay in order to be driven to Konya. There he visits a public hospital, which is a general healthcare institution rather than a specialised psychiatric one. His visit to a doctor, who is not a psychiatrist, usually lasts no more than ten minutes and does not include any health check; the applicant merely shows a list of the medication he needs to take and is given a prescription for some of the medication. As to which medicines are available and which ones he might be prescribed, this is to a very large extent random. The applicant gets the prescribed medicine from a pharmacy. There is no follow-up regarding his mental or somatic condition, which may deteriorate as a result of the side-effects of his medication; sometimes during his visits no doctor is available, and he can only speak to a secretary. In the applicant’s submission, he cannot adduce any new medical evidence as he does not receive the necessary treatment and has no access to psychiatric consultation.", "72. According to the Government, since his expulsion the applicant has continued to be in receipt of a monthly pension equivalent to 1,300 euros paid to him by the Danish authorities.", "73. On 2 October 2019 the applicant’s representative, on the applicant’s behalf, requested the Danish authorities to allow the applicant’s re-entry to Denmark. He referred to the Chamber’s judgment of 1 October 2019 as the grounds for that request and stated that the applicant wished to live with his mother. No medical information on the applicant’s state of health was provided.", "74. In a letter of 11 November 2019, the Danish authorities informed the applicant’s representative that no specific steps had been taken in respect of the applicant, as the judgment in question had not yet become final." ]

[ "RELEVANT legal framework and practice", "Relevant domestic lawThe Danish Penal Code", "The Danish Penal Code", "The Danish Penal Code", "75. The relevant articles of the Penal Code read as follows:", "Article 16", "“(1) Persons of unsound mind due to a mental disorder or a comparable condition at the time of committing the act shall not be punished. The same shall apply to persons who are severely mentally impaired. If the offender was temporarily in a state of mental disorder or a comparable condition due to the consumption of alcohol or other intoxicants, he may be punished if this is justified by special circumstances.", "(2) Persons who, at the time of the act, were slightly mentally deficient are not punishable, except in special circumstances. The same shall apply to persons in a state of affairs comparable to mental deficiency.”", "Article 68", "“If an accused is exempt from punishment pursuant to Article 16, the court may decide on the use of other measures considered expedient to prevent further offences. If less radical measures such as supervision, decisions on place of residence or work, rehabilitation treatment, psychiatric treatment, and so on, are considered insufficient, it may be decided that the person in question must be committed to a hospital for the mentally ill or to an institution for the severely mentally impaired, or placed under supervision with the possibility of administrative placement or in a suitable home or institution offering special attention or care. A person may be committed to safe custody on the conditions referred to in Article 70.”", "Article 71", "“(1) If the question arises of sentencing an accused to placement in an institution or to committal to safe custody in accordance with the provisions of Articles 68-70, the court may appoint a guardian ad litem, in so far as possible a person from his closest relatives, who together with counsel assigned for the defence shall assist the accused during the trial.", "(2) If the accused has been sentenced to placement or committal as referred to in subsection (1), or if the decision makes such placement or commitment possible, a guardian ad litem must be appointed. The guardian must keep himself informed of the condition of the convicted person and ensure that the stay and other measures are not extended for longer than necessary. The appointment shall lapse when the measure is finally discontinued.", "(3) The Minister of Justice shall lay down detailed rules on the appointment and remuneration of guardians ad litem and of such persons’ tasks and specific powers.”", "Article 72", "“(1) The Prosecution Service shall ensure that measures under Articles 68, 69 or 70 are not upheld for longer and to a greater extent than necessary.", "(2) A decision to vary or finally discontinue a measure under Articles 68, 69 or 70 must be made by court order at the request of the convicted person, his guardian ad litem, the Prosecution Service, the management of the institution or the Prison and Probation Service ( Kriminalforsorgen ). Any request from the convicted person, the guardian ad litem, the management of the institution or the Prison and Probation Service must be made to the Prosecution Service, which must bring it before the court as soon as possible. Where a request from a convicted person or his guardian ad litem is not allowed, a new request cannot be made for the first six months following the date of the order.", "...”", "Article 245", "“(1) Any person who commits an assault on the person of another in a particularly offensive, brutal or dangerous manner, or is guilty of mistreatment, shall be sentenced to imprisonment for a term not exceeding six years. It shall be considered a particularly aggravating circumstance if such assault causes serious harm to the body or health of another person.", "...”", "Article 246", "“The sentence may increase to imprisonment for ten years if an assault on the person of another falling within Article 245 or Article 245a is considered to have been committed in highly aggravating circumstances because it was an act of a particularly aggravating nature or an act causing serious harm or death.”", "The Aliens Act", "76. The relevant provisions of the Aliens Act concerning expulsion, as in force at the relevant time, read as follows:", "Section 22", "“(1) An alien who has been lawfully resident in Denmark for more than the last seven years and an alien issued with a residence permit under section 7 or section 8(1) or (2) may be expelled if –", "...", "(vi) the alien is sentenced, pursuant to the provisions of Parts 12 and 13 of the Penal Code or pursuant to Article 119(1) and (2), Article 180, Article 181, Article 183(1) and (2), Article 183a, Article 186(1), Article 187(1), Article 192a, Article 210(1), Article 210(3), read with Article 210(1), Article 215, Article 216, Article 222, Article 224 and 225, read with Articles 216 and 222, Article 237, Article 245, Article 245a, Article 246, Article 252(2), Article 261(2), Article 262a, Article 276, read with Article 286, Articles 278 to 283, read with Article 286, Article 288 or Article 290(2) of the Penal Code, to imprisonment or another criminal sanction involving or allowing deprivation of liberty for an offence that would have resulted in a punishment of this nature;", "...”", "Section 26", "“(1) In deciding on expulsion, regard must be had to the question whether expulsion must be assumed to be particularly burdensome, in particular because of –", "(i) the alien’s ties with Danish society;", "(ii) the alien’s age, health and other personal circumstances;", "(iii) the alien’s ties with persons living in Denmark;", "(iv) the consequences of the expulsion for the alien’s close relatives living in Denmark, including the impact on family unity;", "(v) the alien’s limited or non-existent ties with his country of origin or any other country in which he may be expected to take up residence; and", "(vi) the risk that, in cases other than those mentioned in section 7(1) and (2) and section 8(1) and (2), the alien will be ill-treated in his country of origin or any other country in which he may be expected to take up residence.", "(2) An alien must be expelled under section 22(1)(iv) to (vii) and section 25 unless the circumstances mentioned in subsection (1) make this conclusively inappropriate.”", "Section 27", "“(1) The periods mentioned in section 11(4), section 17(1), third sentence, and sections 22, 23 and 25a shall be reckoned from the date of the alien’s registration with the Central National Register or, if his application for a residence permit was submitted in Denmark, from the date of submission of that application or from the date when the conditions for the residence permit are satisfied if such date is after the date of application.", "...", "(5) The time the alien has spent in custody prior to conviction or has served in prison or been subject to another criminal sanction involving or allowing deprivation of liberty for an offence that would have resulted in imprisonment shall not be included in the periods mentioned in subsection (1).”", "Section 32", "“(1) As a consequence of a court judgment, court order or decision ordering an alien to be expelled, the alien’s visa and residence permit shall lapse, and the alien shall not be allowed to re-enter and stay in Denmark without special permission (re-entry ban). A re-entry ban may be time-limited and shall be reckoned from the first day of the month following departure or return. The re-entry ban shall apply from the time of the departure or return.", "(2) A re-entry ban in connection with expulsion under sections 22 to 24 shall be imposed –", "...", "(v) permanently, if the alien is sentenced to imprisonment for more than two years or another criminal sanction involving or allowing deprivation of liberty for an offence that would have resulted in a punishment of this duration.”", "Section 49", "“(1) When an alien is convicted of an offence, the court shall decide in its judgment, upon an application by the public prosecutor, whether the alien will be expelled pursuant to sections 22 to 24 or section 25c or be sentenced to suspended expulsion pursuant to section 24b. If the judgment specifies expulsion, the judgment must state the period of the re-entry ban: see section 32(1) to (4).”", "Section 50a", "“(1) Where expulsion has been decided by a judgment sentencing an alien to safe custody or committal under the rules of Articles 68 to 70 of the Criminal Code, the court shall, in connection with a decision under Article 72 of the Criminal Code on varying the measure that involves discharge from hospital or safe custody, decide at the same time to revoke the expulsion if the alien’s state of health makes it conclusively inappropriate to enforce the expulsion.", "(2) If an expelled alien is subject to a criminal sanction involving deprivation of liberty under the rules of Articles 68 to 70 of the Criminal Code in cases other than those mentioned in subsection (1), the public prosecutor shall, in connection with discharge from hospital, bring the matter of revocation of the expulsion before the court. Where the alien’s state of health makes it conclusively inappropriate to enforce the expulsion, the court shall revoke the expulsion. The court shall assign counsel to defend the alien. The court shall make its decision by court order, which is subject to interlocutory appeal under the rules of Part 85 of the Administration of Justice Act. The court may decide that the alien is to be remanded in custody when on conclusive grounds this is found to be necessary to ensure the alien’s presence.”", "77. Concerning the application of section 22 of the Aliens Act, the preparatory work on Act no. 429 of 10 May 2006 amending the Aliens Act indicates that expulsion will be inappropriate in the circumstances mentioned in section 26(1) of the Aliens Act if it would be contrary to international obligations, including Article 8 of the Convention, to expel the alien.", "78. In the proceedings before the Grand Chamber, the Government pointed out that the wording of section 32 relating to the ban on re-entry and its duration had been changed by Act no. 469 of 14 May 2018, which had come into force on 16 May 2018. According to the preparatory work on the latter Act, the reasoning behind the amendment had been the political will of the Danish legislature to ensure that the domestic courts ordered the expulsion of criminal aliens more often than had previously been the case while taking account of the Court’s Article 8 case-law. Under the amended legislation, the domestic courts could impose an entry ban for a shorter period if they found that a permanent ban would conflict with Denmark’s international obligations. Accordingly, rather than refraining from expelling a criminal alien, the courts could choose to impose a shorter ban on re-entry. The new version was subjected to further, merely textual, amendments on 9 June 2020, and currently reads as follows:", "“(1) A re-entry ban shall be imposed to prevent the alien in question from entering and staying in the area specified in the decision without permission – but see subsections (2) and (3) – in the following situations:", "(i) The alien has been expelled.", "(ii) The alien has been ordered to leave Denmark immediately or fails to leave the country in accordance with the time limit determined under section 33(2).", "(iii) The alien is subject to restrictive measures intended to prevent entry and transit as decided by the United Nations or the European Union.", "(iv) The alien is included in the list referred to in section 29c(1).", "(v) The alien’s residence permit or right of residence has lapsed under section 21b(1).", "(2) A re-entry ban shall be imposed on an alien falling within the scope of the EU rules only if the alien in question has been expelled to maintain public policy, public safety or public health.", "(3) In particular cases, including in respect of family unity, no re-entry ban shall be imposed if the alien is expelled under section 25a(2) or section 25b, or if the alien falls within the scope of subsection (1)(ii).", "(4) The duration of re-entry bans shall be as follows, but see subsection (5):", "(i) A period of two years, if the alien is expelled under section 25a or section 25b, or if the alien has been issued with a re-entry ban under subsection (1)(ii), but see paragraph (iii).", "(ii) A period of four years, if the alien is expelled under section 22, section 23 or section 24 and is issued with a suspended prison sentence or is sentenced to imprisonment for a term not exceeding three months or to another criminal sanction involving or allowing deprivation of liberty for an offence that would have resulted in a punishment of this nature or duration, but see paragraph (v), or if the alien is expelled under section 25c.", "(iii) A period of five years, if the alien is expelled under section 25(2), provided that the alien is deemed a serious threat to public health, or if the alien is a third-country national and has been issued with a re-entry ban under subsection (1)(ii) or in connection with expulsion under section 25a(2) or section 25b and has entered Denmark in violation of a previous re-entry ban issued under subsection (1)(ii) or in connection with expulsion under section 25a(2) or section 25b or has entered Denmark in violation of a re-entry ban issued by another member State and entered in SIS II.", "(iv) A period of six years, if the alien is expelled under section 22, section 23 or section 24 and is sentenced to imprisonment for a term of more than three months but not exceeding one year or to another criminal sanction involving or allowing deprivation of liberty for an offence that would have resulted in a punishment of this duration.", "(v) A period of at least six years, if the alien is expelled under section 22(1)(iv) to (viii), section 23(1)(i), cf. section 22(1)(iv) to (viii), or section 24(1)(i), cf. section 22(1)(iv) to (viii), or if the alien is expelled by judgment and has not been lawfully resident in Denmark for more than the last six months.", "(vi) A period of twelve years, if the alien is expelled under section 22, section 23 or section 24 and is sentenced to imprisonment for a term of more than one year but not exceeding one year and six months or to another criminal sanction involving or allowing deprivation of liberty for an offence that would have resulted in a punishment of this duration.", "(vii) Permanently, if the alien is expelled under section 22, section 23 or section 24 and is sentenced to imprisonment for more than one year and six months or to another criminal sanction involving or allowing deprivation of liberty for an offence that would have resulted in a punishment of this duration.", "(viii) Permanently, if the alien is expelled under section 25(1)(i) or section 25(1)(ii), provided that the alien is deemed a serious threat to public policy or public safety.", "(ix) Permanently, if the re-entry ban is imposed under subsection (1)(v).", "(x) For such time as the alien is subject to the restrictive measures referred to in subsection (1)(iii) or is included in the list mentioned in subsection (1)(iv).", "(5) A re-entry ban of a shorter duration may be imposed in the following cases:", "(i) The alien is expelled under section 22, section 23 or section 24, and the imposition of a re-entry ban of the duration referred to in subsection (4) will mean that expulsion would for certain be contrary to Denmark’s international obligations.", "(ii) The alien has been issued with a re-entry ban under subsection (1)(ii) or in connection with expulsion under section 25a(2), section 25b or section 25(1)(ii), provided that the alien is deemed a serious threat to public health, and exceptional reasons, including regard for family and social ties, make it appropriate to impose a re-entry ban of a shorter duration than the periods set out in subsection (4)(i) and (iii).", "(iii) A permanent re-entry ban under subsection (4)(viii) or (ix) would be contrary to Denmark’s international obligations.", "(6) A re-entry ban shall be reckoned from the date of the departure or deportation from the area to which the re-entry ban applies. A re-entry ban under subsection (1)(iii) or (iv) shall be reckoned from the date when the alien in question satisfies the conditions for being issued with a re-entry ban under those provisions. A re-entry ban under subsection (1)(v) shall be reckoned from the date when it is found that the alien in question satisfies the conditions for being issued with a re-entry ban if the alien is staying outside Denmark.", "(7) A re-entry ban imposed on an alien falling within the scope of the EU rules shall be revoked upon application if the alien’s personal conduct is deemed no longer to represent a genuine, present and sufficiently serious threat affecting public policy, public safety or public health. The assessment must take into account any change in the circumstances initially justifying the re-entry ban. An application for the revocation of a re-entry ban must be determined within six months of the submission of the application. In cases other than those provided for in the first sentence hereof, a re-entry ban under subsection (1)(ii) or in connection with expulsion under section 25a(2) or section 25b may be revoked if exceptional reasons, including regard for family unity, make this appropriate. Moreover, a re-entry ban imposed under subsection (1)(ii) may be revoked if the alien has left Denmark by the relevant time ‑ limit for departure.", "(8) A re-entry ban shall lapse in the following cases:", "(i) The alien in question is granted residence under sections 7 to 9f, sections 9i to 9n, section 9p or section 9q on the conditions set out in section 10(3) to (6).", "(ii) The alien in question is issued with a registration certificate or a residence card (see section 6) following an assessment corresponding to the assessment referred to in the first and second sentences of subsection (7).", "(iii) The alien in question ceases to be subject to the restrictive measures referred to in subsection (1)(iii).", "(iv) The alien in question ceases to be included in the list referred to in section 29c(1).”", "Other relevant materialsInstruments of the Council of Europe", "Instruments of the Council of Europe", "Instruments of the Council of Europe", "79. With regard to the various texts adopted by the Council of Europe in the field of immigration, mention should be made of the Committee of Ministers Recommendations Rec(2000)15 concerning the security of residence of long-term migrants and Rec(2002)4 on the legal status of persons admitted for family reunification, and of Parliamentary Assembly Recommendation 1504 (2001) on the non-expulsion of long-term immigrants.", "80. Recommendation Rec(2000)15 states, inter alia :", "“4. As regards the protection against expulsion", "(a) Any decision on expulsion of a long-term immigrant should take account, having due regard to the principle of proportionality and in the light of the European Court of Human Rights’ constant case-law, of the following criteria:", "– the personal behaviour of the immigrant;", "– the duration of residence;", "– the consequences for both the immigrant and his or her family;", "– existing links of the immigrant and his or her family to his or her country of origin.", "(b) In application of the principle of proportionality as stated in paragraph 4 (a), member States should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long-term immigrant. More particularly, member States may provide that a long-term immigrant should not be expelled:", "– after five years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of two years’ imprisonment without suspension;", "– after ten years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of five years of imprisonment without suspension.", "After twenty years of residence, a long-term immigrant should no longer be expellable.", "(c) Long-term immigrants born on the territory of the member State or admitted to the member State before the age of ten, who have been lawfully and habitually resident, should not be expellable once they have reached the age of eighteen.", "Long-term immigrants who are minors may in principle not be expelled.", "(d) In any case, each member State should have the option to provide in its internal law that a long-term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety.”", "81. In Recommendation 1504 (2001) the Parliamentary Assembly recommended that the Committee of Ministers invite the governments of member States, inter alia :", "“11. ...", "(ii) ...", "(c) to undertake to ensure that the ordinary-law procedures and penalties applied to nationals are also applicable to long-term immigrants who have committed the same offence;", "...", "(g) to take the necessary steps to ensure that in the case of long-term migrants the sanction of expulsion is applied only to particularly serious offences affecting State security of which they have been found guilty;", "(h) to guarantee that migrants who were born or raised in the host country and their under-age children cannot be expelled under any circumstances;", "...”", "The Committee of Ministers replied to the Assembly on the matter of non-expulsion of certain migrants on 6 December 2002. It considered that Recommendation Rec(2000)15 addressed many of the concerns of the Assembly and it was thus not minded to devise any new standards.", "82. Under the heading “Effective protection against expulsion of family members”, the Committee of Ministers recommended to governments in Recommendation Rec(2002)4 that, where the withdrawal of or refusal to renew a residence permit, or the expulsion of a family member, was being considered:", "“...member States should have proper regard to criteria such as the person’s place of birth, his age of entry on the territory, the length of residence, his family relationships, the existence of family ties in the country of origin and the solidity of social and cultural ties with the country of origin. Special consideration should be paid to the best interest and well-being of children.”", "Relevant practice of the European Union", "83. In the case of C.K. v. Slovenia (C- 578/16 PPU), at issue was the return to Croatia from Slovenia of an asylum seeker and her husband and newborn child, nationals of third States, Croatia being the appropriate Member State for the processing of her claim. The applicant had had a difficult pregnancy and had been diagnosed with postnatal depression and periodic suicidal tendencies since giving birth. In its judgment of 16 February 2017, the Court of Justice of the European Union (CJEU) held, in particular:", "“68. It follows from the case-law of the European Court of Human Rights relating to Article 3 of the ECHR ... that the suffering which flows from naturally occurring illness, whether physical or mental, may be covered by Article 3 of the ECHR if it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible, provided that the resulting suffering attains the minimum level of severity required by that article (see, to that effect, ECtHR, 13 December 2016, Paposhvili v. Belgium, CE:ECHR:2016:1213JUD004173810, § 174 and 175).", "...", "70. In that regard, it must be stated, as regards the reception conditions and the care available in the Member State responsible, that the Member States ... are required ... to provide asylum seekers with the necessary health care and medical assistance including, at least, emergency care and essential treatment of illnesses and of serious mental disorders. In those circumstances, and in accordance with the mutual confidence between Member States, there is a strong presumption that the medical treatments offered to asylum seekers in the Member States will be adequate...", "71. In the present case, neither the decision to refer nor the material in the case file shows that there are substantial grounds for believing that there are systemic flaws in the asylum procedure and the conditions for the reception of asylum seekers in Croatia, with regard to access to health care in particular, which is, moreover, not alleged by the appellants in the main proceedings. On the contrary, it is apparent from that decision that the Republic of Croatia has, in, inter alia, the town of Kutina, a reception centre designed specifically for vulnerable persons, where they have access to medical care provided by a doctor and, in urgent cases, by the local hospital or even by the hospital in Zagreb. Furthermore, it appears that the Slovenian authorities have obtained from the Croatian authorities an assurance that the appellants in the main proceedings would receive any necessary medical treatment.", "72. Moreover, while it is possible that, for certain acute and specific medical illnesses, appropriate medical treatment is available only in certain Member States ... the appellants in the main proceedings have not alleged that this is the case as far as they are concerned.", "73. That said, it cannot be ruled out that the transfer of an asylum seeker whose state of health is particularly serious may, in itself, result, for the person concerned, in a real risk of inhuman or degrading treatment ... irrespective of the quality of the reception and the care available in the Member State responsible for examining his application.", "74. In that context, it must be held that, in circumstances in which the transfer of an asylum seeker with a particularly serious mental or physical illness would result in a real and proven risk of a significant and permanent deterioration in his state of health, that transfer would constitute inhuman and degrading treatment, within the meaning of that article.", "75. Consequently, where an asylum seeker provides ... objective evidence, such as medical certificates concerning his person, capable of showing the particular seriousness of his state of health and the significant and irreversible consequences to which his transfer might lead, the authorities of the Member State concerned, including its courts, cannot ignore that evidence. They are, on the contrary, under an obligation to assess the risk that such consequences could occur when they decide to transfer the person concerned or, in the case of a court, the legality of a decision to transfer, since the execution of that decision may lead to inhuman or degrading treatment of that person...", "76. It is, therefore, for those authorities to eliminate any serious doubts concerning the impact of the transfer on the state of health of the person concerned. In this regard, in particular in the case of a serious psychiatric illness, it is not sufficient to consider only the consequences of physically transporting the person concerned from one Member State to another, but all the significant and permanent consequences that might arise from the transfer must be taken into consideration.”", "84. The case of MP v. Secretary of State for the Home Department (C ‑ 353/16) involved a Sri Lankan national who had been given leave to remain on United Kingdom territory for the period of his studies and who, after that period expired, had applied for asylum, stating that he had been tortured by the Sri Lankan authorities because he was a member of an illegal organisation. Medical evidence was adduced to the relevant domestic court that the applicant was suffering the after-effects of torture, severe post-traumatic stress disorder and serious depression, showed marked suicidal tendencies, and appeared to be particularly determined to kill himself if he had to return to Sri Lanka. In the judgment of 24 April 2018, the CJEU stated, in so far as relevant:", "“40. As regards ... the threshold of severity for finding a violation of Article 3 of the ECHR, it follows from the most recent case-law of the European Court of Human Rights that that provision precludes the removal of a seriously ill person where he is at risk of imminent death or where substantial grounds have been shown for believing that, although not at imminent risk of dying, he would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of suffering a serious, rapid and irreversible decline in his state of health resulting in intense suffering or to a significant reduction in life expectancy (see, to that effect, ECtHR, 13 December 2016, Paposhvili v. Belgium, CE:ECHR:2016:1213JUD004173810, § 178 and 183).", "...", "42. In that regard, the Court has held that, particularly in the case of a serious psychiatric illness, it is not sufficient to consider only the consequences of physically transporting the person concerned from a Member State to a third country; rather, it is necessary to consider all the significant and permanent consequences that might arise from the removal ... Moreover, given the fundamental importance of the prohibition of torture and inhuman or degrading treatment ..., particular attention must be paid to the specific vulnerabilities of persons whose psychological suffering, which is likely to be exacerbated in the event of their removal, is a consequence of torture or inhuman or degrading treatment in their country of origin.", "43. It follows that Article 4 and Article 19(2) of the Charter, as interpreted in the light of Article 3 of the ECHR, preclude a Member State from expelling a third country national where such expulsion would, in essence, result in significant and permanent deterioration of that person’s mental health disorders, particularly where, as in the present case, such deterioration would endanger his life.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "85. The applicant complained that, on account of the state of his mental health, his removal to Turkey had breached Article 3 of the Convention, which reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "The Chamber judgment", "86. The Chamber reiterated the principles set out in the case of Paposhvili v. Belgium ([GC], no. 41738/10, 13 December 2016). Whilst accepting that the medication in issue was generally available in Turkey, including in the area where the applicant would most likely settle down, the Chamber observed that, in the present case, the applicant’s follow-up and supervision in connection with intensive outpatient treatment had been an additional important element. Medical evidence showed that the applicant’s current medication should be administered on a daily basis and that a failure to take his medication entailed a risk of worsening his psychotic symptoms and a greater risk of aggressive behaviour. Moreover, the provision of medical treatment to the applicant was an expert task. In particular, in order to prevent a relapse, it was essential that besides medication, the applicant had a regular contact person for supervision, and that a follow-up scheme was in place to make sure that the applicant paid attention to the medical treatment administered. In addition, the applicant needed to undergo blood tests regularly in order to verify that he had not developed an immune disorder, which could be a side-effect of Leponex.", "87. The Chamber pointed out that the High Court had not addressed those elements, but had stated, more generally, that the fact that the applicant was aware of his disease and of the importance of adhering to his medical treatment and of taking the drugs prescribed would not make his removal conclusively inappropriate. The Chamber observed, however, that, according to one of the medical experts, the applicant’s awareness of his illness would not suffice to avoid a relapse; it was essential that he also had a regular contact person for supervision. The Chamber found it noteworthy that, in contrast to the City Court, the High Court had not elaborated on that issue.", "88. The Chamber considered that returning the applicant to Turkey, where, as he had stated, he had no family or any other social network, would unavoidably cause him additional hardship. This made it even more crucial that, upon his return, he should be provided with the follow-up and supervision necessary for his psychiatric outpatient therapy, as well as for the prevention of the degeneration of his immune system, and, at the very least, with assistance in the form of a regular and personal contact person. It further shared the City Court’s concern that it was unclear whether, if returned to Turkey, the applicant had a real possibility of receiving the relevant psychiatric treatment, including the necessary follow-up and supervision in connection with intensive outpatient therapy. That uncertainty raised serious doubts as to the impact of the removal on the applicant. Accordingly, the Danish authorities should have assured themselves that upon the applicant’s return to Turkey, a regular and personal contact person would be available, offered by the Turkish authorities and suitable to the applicant’s needs. The Chamber concluded that there would be a violation of Article 3 of the Convention if the applicant were to be removed to Turkey without the Danish authorities’ having obtained such assurances.", "The parties’ submissions before the Grand ChamberThe applicant", "The applicant", "The applicant", "89. The applicant maintained that the facts of the case disclosed a violation of his rights secured by Article 3 of the Convention. He argued that he suffered from paranoid schizophrenia, a very serious and long-term illness, recognised internationally, including by the World Health Organisation. It had been medically established that this mental illness could be so severe that inadequate treatment could result in a serious, rapid and irreversible decline in patients’ health that was associated with intense suffering, or in a significant reduction in life expectancy, and could pose a threat to such patients’ own safety and to the safety of others.", "90. As for the concerns regarding the difficulties in assessing a particular mental condition as being more subjective owing to the risk of symptoms being simulated, the applicant stressed that he had adduced a solid body of medical evidence covering a very long period of his medical history. At various times, three consultant psychiatrists had confirmed his diagnosis, the development of his illness and the evolution of his behaviour, as well as the crucial importance of the follow-up and supervision of the treatment and of other treatment initiatives for the prevention of a relapse. Moreover, the applicant referred to the health professionals’ attempt to reduce his medication at the beginning of 2013, which had destabilised him, with the result that he had displayed psychotic symptoms and had to be immobilised with a belt for a week. In the applicant’s view, that incident had shown how fragile his mental health was and had made it clear that even after years of targeted therapy in a specialist hospital he still needed supervision and medical intervention, and that, at the time of his removal to Turkey, he had not been ready to pursue outpatient treatment independently.", "91. The applicant thus argued that he had established a prima facie case by submitting medical evidence which had clearly demonstrated substantial grounds to believe that he would be exposed to a real risk of being subjected to treatment that fell within the scope of Article 3. With reference to the judgment of the City Court dated 14 October 2014, the applicant argued that the Danish authorities were fully aware of the serious risks he would be exposed to in the event of his expulsion.", "92. Yet in its decision of 13 January 2015 the High Court had done no more than rely on the general information obtained from MedCOI on the availability of treatment and medication in Turkey (see paragraph 66 above). In relation to the latter, the applicant contended that a wide range of sources had criticised the methods and results of MedCOI’s work. In particular, it was unclear how the information had been obtained; moreover, the information provided was always anonymised, which raised doubts as regards the transparency, accuracy and reliability of the relevant sources. More specifically, in the applicant’s case that information was clearly insufficient to counterbalance the very serious medical evidence submitted by him.", "93. Furthermore, even the general availability of psychiatric treatment in Turkey was open to doubt. The applicant referred to the World Health Organisation Mental Health Atlas of 2017, which indicated that there were 1.64 psychiatrists per 100,000 inhabitants in Turkey, the lowest rate of psychiatrists in relation to the country’s population among the countries in the World Health Organisation. Against that background, it was particularly important that the Danish authorities should have examined the question whether the appropriate treatment would actually be accessible to the applicant; however, the High Court had not addressed that issue.", "94. The applicant further referred to his current situation, stating that appropriate treatment in his particular case was absent or de facto unavailable to him owing to the lack of essential health services, facilities, resources and/or medicines. He further relied on the fact that he was only able to obtain certain tablets infrequently, as well as the high cost of treatment. The applicant thus stressed that it had been of particular importance for individual assurances to be obtained in his case prior to his expulsion. Given that the foreseeable consequences of the lack of appropriate treatment had been clearly described by the psychiatrists in their statements in the domestic proceedings, it had fallen to the Danish authorities to satisfy themselves that the applicant’s treatment would not be interrupted. That had not been an insurmountable task for them as Denmark had a large embassy in Turkey and could have made efforts to ensure that the applicant’s medical treatment would not be interrupted in the event of his removal. In the absence of such assurances, however, the returning State should have refrained from deporting the applicant.", "95. The applicant also disputed the Government’s argument that a contact person was a social measure rather than an element of his medical treatment. He pointed to the psychiatrists’ reports in his case, which had made it clear that a contact person was an integral part of his medical treatment. Such a person had been necessary to ensure that he adhered to his treatment with a view to preventing the risk of relapse, and thereby the risk of self-harm or harm to others; and to maintain awareness of the potentially dangerous side-effects of the treatment. He stressed that he had never requested the same quality of healthcare in Turkey as he had received in Denmark, but had merely asserted the need for essential treatment measures, including a personal contact person, as indicated by the psychiatrists in his case.", "96. Although the authorities had obtained information that psychiatric treatment in general was available in Turkey, and even covered by the national healthcare system, a follow-up and supervision scheme by means of a daily contact person to prevent relapse had been essential but was not available; nor had the Danish authorities received any assurances from Turkey that such outpatient therapeutic assistance would be available to him upon his arrival.", "97. The applicant further stressed his deplorable situation after expulsion (see paragraphs 70-71 above). He thus contended that the existing case-law in the field and the particular facts of his case strongly supported the Chamber’s finding of a violation of Article 3 of the Convention.", "The Government", "98. The Government insisted that the implementation of the order for the applicant’s expulsion had not breached Article 3 of the Convention. They extensively cited the Court’s case-law in the field of removal of seriously ill aliens and, in particular, relied on the applicable standards established in the Paposhvili judgment (cited above). They argued, however, that it had not been explicitly stated in that judgment whether the standard established in its paragraph 183 also applied to cases concerning the removal of mentally ill aliens.", "99. In their view, the standard set out in that paragraph of Paposhvili could not be applied in an identical manner in the latter context. In this regard, they submitted that owing to its nature, symptoms and possible treatment, a mental illness was not comparable with a terminal or other serious physical illness that required continued intensive treatment. A physical illness was based on elements that were objectively visible or measurable to a greater extent than a mental illness, which, owing to its nature, had to be assessed on the basis of psychological factors, such as observations of a person’s behaviour and/or accounts given by the person showing symptoms of such an illness.", "100. With regard to the specific criteria listed in paragraph 183 of the Paposhvili judgment (cited above), the Government submitted that the elements of “rapid and irreversible” and to some extent also that of “intense suffering” could not be meaningfully transposed from an assessment of an alien suffering from a very serious physical illness to that of an alien suffering from a very serious mental illness. Accordingly, the interruption of treatment for mental illness could not be assumed to have the same predictable consequences as the interruption of treatment for physical diseases like cancer, renal failure and cardiac diseases. Moreover, people suffering from a mental illness could retain their ability to function well in their everyday life. That made it a very complex task to assess whether a person’s condition had seriously declined, and what criteria should be applied to determine whether the relevant person’s state of health would result in intense suffering.", "101. In so far as the standard in question referred to an “irreversible” decline in health, this criterion could not be applied directly to mental illness unless there was a proven risk of consequences such as a substantially increased risk of suicide or self-harm in the event of interruption of treatment. The treatment of a mentally ill person could be interrupted by the person himself or herself if the person lacked insight into his or her own illness, but in the vast majority of cases it was possible to resume the treatment later and to stabilise the person’s condition.", "102. With reference to the Court’s case-law concerning the removal of applicants suffering from schizophrenia, the Government further contended that in such cases a thorough analysis had to be made of an individual’s personal situation, and in that context the nature of the illness and the individual’s insight into the illness, including the current need for treatment, were essential elements for determining whether it would be contrary to Article 3 to remove the individual in question. Accordingly, a psychiatric diagnosis, in itself, was insufficient to bring a particular application within the scope of Article 3 of the Convention. The threshold in such cases had to be very high.", "103. The Government went on to state that, even assuming that the Paposhvili criteria were applicable in an identical manner in the context of the removal of mentally ill aliens, the threshold for application of Article 3 had not been reached in the present case. They stressed that the threshold criteria had to be fulfilled before the question of the availability of and access to appropriate and sufficient medical treatment became of relevance. In the present case, the Chamber had made no such assessment. In their view, the Court’s assessment should be made on the basis of the factual findings made in the proceedings before the Danish courts, who had carefully assessed the impact of the applicant’s removal on his health in the light of the information adduced by the competent authorities and experts. The medical evidence adduced had not demonstrated, nor had any findings to that effect been made by the domestic courts, that in the event of his removal to Turkey the applicant would be exposed to consequences amounting to “a serious, rapid and irreversible decline in his state of health resulting in intense suffering”, as defined in paragraph 183 of the Paposhvili judgment (cited above).", "104. More specifically, the medical evidence before the courts had demonstrated that the applicant had a complete awareness of his illness, was highly motivated to undergo psychiatric treatment, including treatment with psychoactive drugs, and had clearly acknowledged his need for therapy, and that he had good prospects of recovery if subject to follow-up and supervision in connection with intensive outpatient therapy when discharged. No psychiatric evaluation had ever shown that the applicant would endure “intense suffering” in the event of removal to Turkey on account of the lack of access to medical treatment or of assistance in the form of a regular and personal contact person.", "105. There was also no evidence to suggest that the applicant’s illness would become “irreversible” if left untreated. Initially, the applicant had not been diagnosed with a mental illness but had only been found to be mentally impaired with a mild to moderate level of functional disability and to be suffering from a personality disorder characterised by immaturity, lack of empathy, emotional instability and impulsivity. The applicant had for the first time been diagnosed with schizophrenia in 2008. However, appropriate treatment had stabilised and eventually improved his condition. His medical history showed that although he had not been treated for schizophrenia for several years, it had been possible for him to commence treatment, with the result that his psychotic symptoms had been relieved and had, at times, disappeared entirely.", "106. Since the applicant suffered from a long-term illness that required treatment, a relapse could occur irrespective of whether he had been removed to Turkey or remained resident in Denmark. In any event, even assuming that his treatment would be interrupted in Turkey, the consequences of such interruption would not meet the high threshold of Article 3.", "107. The Government went on to argue that the care generally available in Turkey and the extent to which the applicant could actually have access to that care were sufficient and appropriate to treat his illness. On the basis of the available information and evidence, the Danish authorities, and, in particular, the High Court of Eastern Denmark, had considered the care available in Turkey and the extent to which the applicant would have access to it, including with reference to the cost of medication and care, the distance to be travelled in order to have access to care and the availability of medical assistance in a language spoken by the applicant. The Danish courts had therefore carried out a thorough and individual assessment of the impact of the removal on the applicant’s state of health. Accordingly, there had been no “serious doubts” regarding the consequences for the applicant’s removal to Turkey, with the result that there had been no need for the Danish authorities to obtain individual assurances in respect of him.", "108. The Chamber had concluded that the Danish authorities should have obtained assurances from the Turkish authorities that the applicant, upon his return, would continue to have access to assistance in the form of a regular and personal contact person. However, this was a social measure and the Chamber’s conclusion had gone further than what followed from the Paposhvili judgment (cited above), which referred to an assurance that a specific type of treatment would be available for a seriously ill man suffering from leukaemia. The Chamber had thus lowered the threshold for when a returning State should obtain an assurance and had thus “invalidated” the well-established case-law, according to which the benchmark was not the level of care existing in the returning State.", "109. Lastly, the Government referred to the applicant’s current situation, stating that no evidence had been submitted that he had experienced any relapses or any worsening of his psychotic symptoms after his expulsion to Turkey. In their view, the hardship he had to bear in Turkey – staying indoors and not speaking Turkish – clearly did not amount to a violation of Article 3. They further argued that, in fact, the applicant lived in a Kurdish village, that he spoke Kurdish fluently, and that he still received his Danish disability pension of approximately 1,300 euros (EUR) monthly.", "Third-party interveners", "110. The Dutch, French, German, Norwegian, Russian, Swiss and United Kingdom Governments were granted leave to intervene, as were Amnesty International, a non-governmental organisation, and the Centre for Research and Studies on Fundamental Rights of Paris Nanterre University (CREDOF).", "(a) Intervening Governments", "111. The intervening Governments submitted somewhat similar arguments focusing primarily on the following aspects.", "112. Firstly, they argued that the Chamber judgment in the present case had erred in its interpretation of the existing case-law in the field, including the Paposhvili judgment (cited above), and had broadened the scope of Article 3 of the Convention in the context of the expulsion of seriously ill aliens. With reference to the Court’s relevant case-law, the Governments all stressed that the threshold of severity for Article 3 to come into play in cases involving the removal of seriously ill aliens had always been very high. The Paposhvili judgment had been a clarification, not a departure, from that approach. They insisted that the threshold should remain very high and that successful cases under the Paposhvili test should be truly “very exceptional”, given in particular the “prevailing notions” and “present-day conditions” and the need not to impose an excessive burden on the limited resources of Contracting States, as this might seriously impair their ability to maintain economically viable healthcare systems sufficient to care for those who were lawfully resident there. That truth had been apparent even before the COVID-19 crisis but it was all the clearer now. The Governments argued that lowering that threshold would in fact amount to imposing on them a heavy burden of alleviating disparities between their healthcare systems and those of third countries. The protection against expulsion should serve to ensure that the person concerned was not exposed to treatment proscribed by Article 3 of the Convention rather than to provide the best treatment for an existing illness or to increase the chances of recovery.", "113. Secondly, the Governments made extensive comments on various aspects of the standard established in the Paposhvili judgment (cited above). They mostly agreed that the Paposhvili test required no adjustment for mentally ill patients and should be applied as it stood, although some interpretation might be useful to make it more suited to mental conditions. The United Kingdom Government argued, in particular, that a serious and rapid decline in mental health, which could be reversed with treatment, would not satisfy the test. They also warned the Court about the possibility of individuals simulating mental conditions which might lead to abuses. In so far as the standard at hand referred to “a significant reduction in life expectancy”, the United Kingdom Government contended that it should exclude cases of possible suicide as those resulted from a deliberate act. More generally, the United Kingdom Government expressed a concern that the wording in question was too vague and broad. They insisted that all the elements of the relevant test should be read together and be regarded as indispensable for the passing of this threshold. In their view, under no circumstances could “a significant reduction in life expectancy” be used as the only element for reaching the above-mentioned threshold. That element was not enough to demonstrate a breach of Article 3 unless it followed from a “serious, rapid and irreversible decline in [one’s] state of health”.", "114. The Governments stressed that, in any event, the standard established in the Paposhvili judgment (cited above), which had already expanded the scope of Article 3 for cases concerning the removal of seriously ill aliens, should not be extended further. Several Governments pointed out that they had integrated that standard into their domestic law to comply with their obligations under the Convention.", "115. The Governments then invited the Grand Chamber to reaffirm the necessity of first examining the question of whether the requisite threshold had been reached in a particular case – that is, that an applicant “would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy” (referring to Paposhvili, cited above, § 183) – before addressing any other questions such as the availability and accessibility of treatment. This was particularly important in situations involving the expulsion of aliens with mental conditions as those were more subjective than somatic illnesses. In that connection, the Governments criticised the Chamber judgment, stressing that, by omitting that necessary step, the Chamber had, in fact, lowered the requisite Article 3 threshold, which had not been reasonable or justified.", "116. The Governments further stressed that it had been for the applicant to demonstrate that, in the absence of appropriate treatment or access to such treatment in the receiving country, he would suffer consequences as established in paragraph 183 of the Paposhvili judgment (cited above). As regards the rules on the burden of proof, the United Kingdom Government also submitted that the relevant parts of the Paposhvili judgment should be interpreted realistically, meaning that Contracting States could not be expected to instruct medical experts to examine every applicant who had applied for leave to remain on medical grounds, or to gather evidence as regards the applicants’ relatives in their country of origin. States could – in suitable cases – gather evidence on the treatment available in a receiving State, but they could not reasonably be expected to gather evidence as to the particular medical needs of individual applicants.", "117. The Governments also reflected on the notion of “sufficient and appropriate” treatment in the receiving State, stating that it called for a broad and non-partisan assessment based on objectively verifiable evidence, including independent expertise; and that the domestic courts were better placed than the European Court to make such an assessment in each particular case. In their view, “sufficient and appropriate” treatment should not be regarded as including any social measures. They reiterated that the benchmark was not the level of care existing in the returning State.", "118. As regards the accessibility of medical treatment in the receiving country, the Governments argued that there should be no general presumption that because a person was mentally ill, he or she lacked capacity to make decisions about his or her own treatment. Also, whilst a social or family network might be relevant in that context, the lack of any such network would not rule out the possibility for a mentally ill applicant to have actual access to the necessary medical treatment. Contracting States should not be obliged to provide indefinite free healthcare to foreign nationals who had the necessary mental capacity to take decisions on their health care and who were able to access appropriate treatment on return to the receiving State, but who would or might fail to do so.", "(b) Amnesty International", "119. Amnesty International underlined the connection between the right to health, including mental health care and treatment, and the prohibition against torture and other ill-treatment. They pointed to a number of international law instruments highlighting this link and also argued in favour of a rights-based approach to mental-health care and treatment which should emphasise a holistic and multisectoral process involving community support networks and a range of service providers.", "(c) CREDOF", "120. The CREDOF argued in favour of a heightened level of protection for mentally ill patients in removal cases under Article 3 of the Convention. The assessment of whether the available treatment in the receiving country was adequate should include an evaluation of the therapeutic consequences of the treatment in question, the availability of an adequate caring environment and follow-up, as well as the need to view the treatment as a continuing process. With reference to various international cases, the CREDOF especially pointed to the latter two criteria as the key ones, since abruptly interrupting the treatment of certain mental disorders could, by the very nature of such illnesses, have a damaging effect on a patient such as to engage Article 3. It further submitted that, in contrast to patients with physical disorders, mentally ill patients were generally viewed as sometimes being capable of simulating their illness. This situation frequently led to challenges to their condition and also created additional difficulties in making a diagnosis and carrying out the relevant legal assessments. In view of the above, the CREDOF emphasised that the Court should be particularly careful in setting up the relevant standards so as not to dilute the protection of Article 3 in respect of mentally ill aliens. Lastly, it referred to the link between family support and the chances of improvement of mentally ill patients, and also to statistical data to the effect that the group in question ran a considerable risk of suicide.", "The Court’s assessmentArticle 3: general principles", "Article 3: general principles", "Article 3: general principles", "121. It is the Court’s settled case-law that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture and inhuman or degrading treatment or punishment and its guarantees apply irrespective of the reprehensible nature of the conduct of the person in question (see, among many other authorities, Aswat v. the United Kingdom, no. 17299/12, § 49, 16 April 2013).", "122. The prohibition under Article 3 of the Convention does not, however, relate to all instances of ill-treatment. Such treatment has to attain a minimum level of severity if it is to fall within the scope of that Article. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see N. v. the United Kingdom [GC], no. 26565/05, § 29, ECHR 2008; Paposhvili, cited above, § 174; and Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015).", "123. An examination of the Court’s case-law shows that Article 3 has been most commonly applied in contexts in which the risk of being subjected to a proscribed form of treatment has emanated from intentionally inflicted acts of State agents or public authorities. However, in view of the fundamental importance of Article 3, the Court has reserved to itself sufficient flexibility to address its application in other situations (see Pretty v. the United Kingdom, no. 2346/02, § 50, ECHR 2002 ‑ III, and Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12, § 111, ECHR 2012 (extracts)). In particular, it has held that suffering which flows from a naturally occurring illness may be covered by Article 3 where it is, or risks being, exacerbated by treatment stemming from measures for which the authorities can be held responsible (see N. v. the United Kingdom, cited above, § 29). Moreover, it is not prevented from scrutinising an applicant’s claim under Article 3 where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country (see Paposhvili, cited above, § 175).", "Article 3: expulsion of seriously ill aliens", "124. In its case-law concerning the extradition, expulsion or deportation of individuals to third countries, the Court has consistently held that as a matter of well-established international law and subject to their treaty obligations, States Parties have the right to control the entry, residence and expulsion of aliens. Nevertheless, the expulsion of an alien by a State Party may give rise to an issue under Article 3 of the Convention where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the receiving country (ibid., §§ 172 ‑ 73, and the authorities cited therein).", "125. In its judgment in the case of Paposhvili (cited above), the Court reviewed the applicable principles, starting with the case of D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997 ‑ III).", "126. The Court observed that the D. v. the United Kingdom case concerned the intended expulsion to St Kitts of an alien who was suffering from AIDS which had reached its terminal stages. It had found that the applicant’s removal would expose him to a real risk of dying under most distressing circumstances and would amount to inhuman treatment (ibid., § 53). The case was characterised by “very exceptional circumstances”, owing to the fact that the applicant suffered from an incurable illness and was in the terminal stages, that there was no guarantee that he would be able to obtain any nursing or medical care in St Kitts or that he had family there willing or able to care for him, or that he had any other form of moral or social support (ibid., §§ 52-53). Taking the view that, in those circumstances, his suffering would attain the minimum level of severity required by Article 3, the Court held that compelling humanitarian considerations weighed against the applicant’s expulsion (ibid., § 54).", "127. It further observed that since the subsequent case of N. v. the United Kingdom (cited above), in which it had concluded that the applicant’s removal would not give rise to a violation of Article 3, it had declared inadmissible as being manifestly ill-founded numerous applications raising similar issues lodged by aliens who were HIV positive or suffered from other serious physical or mental illnesses. Several judgments had also been adopted; in all of them – with the exception of the case of Aswat (cited above, which concerned the extradition to the United States of a detainee suffering from paranoid schizophrenia) – it had been found that the applicants’ removal would not breach Article 3 of the Convention (see Paposhvili, cited above, § 179).", "128. The Court concluded from that recapitulation of the case-law that the application of Article 3 of the Convention only in cases where the person facing expulsion was close to death, which had been its practice since the judgment in N. v. the United Kingdom (cited above), had deprived aliens who were seriously ill, but whose condition was less critical, of the benefit of that provision. Moreover, the case-law subsequent to N. v. the United Kingdom had not provided any more detailed guidance regarding the “ very exceptional cases ” referred to in N. v. the United Kingdom, other than the circumstances contemplated in D. v. the United Kingdom (see Paposhvili, cited above, § 181).", "129. In that connection, the Court went on to elucidate what “other very exceptional cases” could be so contemplated, while reiterating that it was essential that the Convention was interpreted and applied in a manner which rendered its rights practical and effective and not theoretical and illusory (ibid., § 182):", "“183. The Court considers that the ‘other very exceptional cases’ within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.”", "130. As to whether those conditions were satisfied in a given situation, the Court stressed that the national authorities were under an obligation under Article 3 to establish appropriate procedures allowing an examination of the applicants’ fears to be carried out, as well as an assessment of the risks they would face if removed to the receiving country (ibid., §§ 184-85). In the context of those procedures,", "(a) it is for the applicants to adduce evidence capable of demonstrating that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3 (ibid., § 186);", "(b) where such evidence is adduced, it is for the returning State to dispel any doubts raised by it, and to subject the alleged risk to close scrutiny by considering the foreseeable consequences of removal for the individual concerned in the receiving State, in the light of the general situation there and the individual’s personal circumstances; such an assessment must take into consideration general sources such as reports of the World Health Organisation or of reputable non-governmental organisations and the medical certificates concerning the person in question (ibid., § 187); the impact of removal must be assessed by comparing the applicant’s state of health prior to removal and how it would evolve after transfer to the receiving State (ibid., § 188);", "(c) the returning State must verify on a case-by-case basis whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness so as to prevent him or her being exposed to treatment contrary to Article 3 (ibid., § 189);", "(d) the returning State must also consider the extent to which the applicant will actually have access to the treatment, including with reference to its cost, the existence of a social and family network, and the distance to be travelled in order to have access to the required care (ibid., § 190);", "(e) where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the applicant – on account of the general situation in the receiving country and/or their individual situation – the returning State must obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned so that they do not find themselves in a situation contrary to Article 3 (ibid., § 191).", "131. The Court stressed in the above connection that the benchmark was not the level of care existing in the returning State; it was not a question of ascertaining whether the care in the receiving State would be equivalent or inferior to that provided by the healthcare system in the returning State. Nor was it possible to derive from Article 3 a right to receive specific treatment in the receiving State which was not available to the rest of the population (ibid., § 189). In cases concerning the removal of seriously ill persons, the event which triggered the inhuman and degrading treatment, and which engaged the responsibility of the returning State under Article 3, was not the lack of medical infrastructure in the receiving State. Likewise, the issue was not one of any obligation for the returning State to alleviate the disparities between its healthcare system and the level of treatment existing in the receiving State through the provision of free and unlimited healthcare to all aliens without a right to stay within its jurisdiction. The responsibility that was engaged under the Convention in cases of this type was that of the returning State, on account of an act – in this instance, expulsion – which would result in an individual being exposed to a risk of treatment prohibited by Article 3 (ibid., § 192). Lastly, the Court pointed out that whether the receiving State was a Contracting Party to the Convention was not decisive.", "132. There has been no further development in the relevant case-law since the Paposhvili judgment (cited above).", "General considerations on the criteria laid down in the Paposhvili judgment", "133. Having regard to the reasoning of the Chamber and the submissions of the parties and third parties before the Grand Chamber, the latter considers it useful with a view to its examination of the present case to confirm that the Paposhvili judgment (cited above) offered a comprehensive standard taking due account of all the considerations that are relevant for the purposes of Article 3 of the Convention. It maintained the Contracting States’ general right to control the entry, residence and expulsion of aliens, whilst recognising the absolute nature of Article 3. The Grand Chamber thus reaffirms the standard and principles as established in Paposhvili (cited above).", "134. Firstly, the Court reiterates that the evidence adduced must be “capable of demonstrating that there are substantial grounds” for believing that as a “seriously ill person”, the applicant “would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy” (ibid., § 183).", "135. Secondly, it is only after this threshold test has been met, and thus Article 3 is applicable, that the returning State’s obligations listed in paragraphs 187-91 of the Paposhvili judgment (see paragraph 130 above) become of relevance.", "136. Thirdly, the Court emphasises the procedural nature of the Contracting States’ obligations under Article 3 of the Convention in cases involving the expulsion of seriously ill aliens. It reiterates that it does not itself examine the applications for international protection or verify how States control the entry, residence and expulsion of aliens. By virtue of Article 1 of the Convention, the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities, who are thus required to examine the applicants’ fears and to assess the risks they would face if removed to the receiving country, from the standpoint of Article 3. The machinery of complaint to the Court is subsidiary to national systems safeguarding human rights (ibid., § 184).", "Relevance of the Paposhvili threshold test in the context of the removal of mentally ill aliens", "137. The Court has consistently applied the same principles in cases concerning the expulsion of seriously ill applicants, irrespective of what particular type of medical issue – somatic or mental – underlay their health condition. In the Paposhvili judgment (cited above), before it proceeded to formulate the new standard, the Court had regard to case-law relating to applicants suffering from both physical and mental illnesses (see paragraph 127 above and the range of authorities cited in Paposhvili, cited above, § 179). In the wording of paragraph 183 of the Paposhvili judgment, the standard refers to “a seriously ill person”, without specifying the type of illness. Thus, it is not limited to any specific category of illness, let alone physical ones, but may extend to any category, including mental illnesses, provided that the situation of the ill person concerned is covered by the Paposhvili criteria taken as a whole.", "138. In particular, in its relevant part, the threshold test established in paragraph 183 of the Paposhvili judgment (cited above), rather than mentioning any particular disease, broadly refers to the “irreversibility” of the “decline in [a person’s] state of health”, a wider concept that is capable of encompassing a multitude of factors, including the direct effects of an illness as well as its more remote consequences. Moreover, it would be wrong to dissociate the various fragments of the test from each other, given that, as noted in paragraph 134 above, a “decline in health” is linked to “intense suffering”. It is on the basis of all those elements taken together and viewed as a whole that the assessment of a particular case should be made.", "139. In the light of the foregoing, the Court considers that the standard in question is sufficiently flexible to be applied in all situations involving the removal of a seriously ill person which would constitute treatment proscribed by Article 3 of the Convention, irrespective of the nature of the illness.", "Application of the relevant principles in the present case", "140. The Grand Chamber observes that in its judgment the Chamber did not assess the circumstances of the present case from the standpoint of the threshold test established in paragraph 183 of the Paposhvili judgment (cited above). As noted in paragraph 135 above, it is only after that test is met that any other questions, such as the availability and accessibility of appropriate treatment, become of relevance.", "141. Whilst, admittedly, schizophrenia is a serious mental illness, the Court does not consider that that condition can in itself be regarded as sufficient to bring the applicant’s complaint within the scope of Article 3 of the Convention.", "142. The Court observes that the medical evidence submitted by the applicant showed, in particular, that he was aware of his disease, clearly acknowledged his need for therapy, and was cooperative. His treatment plan included medication with two antipsychotic drugs: Leponex (a medication with clozapine as the active pharmaceutical ingredient), in the form of tablets to be administered daily, and Risperdal Consta, in the form of injections to be administered fortnightly. The experts submitted that a relapse in the event of the interruption of the applicant’s medication might “have serious consequences for himself and his environment” (see paragraph 44 above). In particular, there was said to be “a risk of aggressive behaviour” and of the applicant’s becoming “very dangerous”, which would give rise to “a significantly higher risk of offences against the person of others because of the worsening of the applicant’s psychotic symptoms” (see paragraphs 36, 42 and 45 above). It was also stated that Leponex could cause immune deficiencies, and therefore the taking of blood samples for somatic reasons on a weekly or monthly basis was necessary (see paragraph 63 above).", "143. While the Court finds it unnecessary to decide in the abstract whether a person suffering from a severe form of schizophrenia might be subjected to “intense suffering” within the meaning of the Paposhvili threshold test, it considers, having reviewed the evidence adduced by the parties before it and the evidence before the domestic courts, that it has not been demonstrated in the present case that the applicant’s removal to Turkey exposed him to a serious, rapid and irreversible decline in his state of health resulting in intense suffering, let alone to a significant reduction in life expectancy. According to some of the relevant medical statements, a relapse was likely to result in “aggressive behaviour” and “a significantly higher risk of offences against the person of others” as a result of the worsening of psychotic symptoms. Whilst those would have been very serious and detrimental effects, they could not be described as “resulting in intense suffering” for the applicant himself.", "144. It does not appear, in the absence of convincing evidence to that effect, that any risk has ever existed of the applicant harming himself (in this connection, compare Bensaid v. the United Kingdom, no. 44599/98, §§ 16 and 37, ECHR 2001 ‑ I, and Tatar v. Switzerland, no. 65692/12, § 16, 14 April 2015, both concerning applicants who were suffering from paranoid schizophrenia, where a risk of self-harm was a factor but where Article 3 was not engaged). Whilst one of the experts did mention “serious consequences” for the applicant “himself”, those consequences, as explained further by the expert, concerned a high risk of harm to others.", "145. As regards any risk to the applicant’s physical health owing to immune defects that might be caused by Leponex, this appears to have been neither real nor immediate in the applicant’s case. It is noteworthy that the applicant was prescribed Leponex in May 2013 (see paragraph 35 above) and that during the period of two years that elapsed until the final decision in the revocation proceedings on 20 May 2015 (see paragraph 67 above) he had shown no symptoms of any deterioration of his physical health on account of his treatment with that drug. In any event, the relevant evidence does not indicate that such immune deficiencies, should they occur, would be “irreversible” and would result in the “intense suffering” or “significant reduction in life expectancy” necessary to satisfy the Paposhvili test. The medical expert simply suggested that the applicant should stop taking that drug if such deficiencies emerged (see paragraph 63 above).", "146. Even assuming that a certain degree of speculation is inherent in the preventive purpose of Article 3 and that it is not a matter of requiring the persons concerned to provide clear proof of their claim that they would be exposed to proscribed treatment (see Paposhvili, cited above, § 186), the Court is not convinced that in the present case, the applicant has shown substantial grounds for believing that, in the absence of appropriate treatment in Turkey or the lack of access to such treatment, he would be exposed to a risk of bearing the consequences set out in paragraph 183 of the judgment in Paposhvili and paragraphs 129 and 134 above.", "147. The foregoing considerations are sufficient to enable the Court to conclude that the circumstances of the present case do not reach the threshold set by Article 3 of the Convention to bring the applicant’s complaint within its scope. As already indicated, that threshold should remain high for this type of case (ibid., § 183). Against this background, there is no call to address the question of the returning State’s obligations under this Article in the circumstances of the present case.", "148. There has accordingly been no violation of Article 3 of the Convention as a result of the applicant’s removal to Turkey.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "149. The applicant further complained that the authorities’ refusal to revoke the expulsion order, and the implementation of that order entailing as a consequence a permanent re-entry ban, had breached his right to respect for his private and family life. He relied on Article 8 of the Convention, the relevant part of which reads as follows:", "“1. Everyone has the right to respect for his private and family life...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "The Chamber judgment", "150. The Chamber observed that the complaint under Article 8 relating to the original expulsion order had been lodged out of time and had to be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. It then declared admissible the complaint relating to the revocation proceedings and, having regard to its findings under Article 3, considered that there was no need to examine separately the applicant’s complaint under Article 8 of the Convention.", "The parties’ submissions before the Grand ChamberThe applicant", "The applicant", "The applicant", "151. The applicant argued that the outcome of the revocation proceedings and his eventual expulsion had constituted a violation of his right to respect for his private and family life secured by Article 8 of the Convention. Given that he had lived in Denmark from the age of six until the age of almost thirty, he had been a “settled migrant”, and therefore “serious reasons” had been required to justify his expulsion, as established in the case of Maslov v. Austria ([GC], no. 1638/03, ECHR 2008). Moreover, his enduring mental disorder – paranoid schizophrenia – and his low intellectual capacity made him particularly vulnerable.", "152. Prior to his expulsion, the applicant had had very close ties with his mother, his four siblings and his niece and nephew, all of them living in Denmark. They had frequently visited him at the Hospital of Saint John, and he had visited them either alone, or in the company of health workers from the hospital. He had had a family life with them and, in view of his diagnosis, had been particularly dependent on them and had relied on their assistance and support in his efforts to overcome his mental illness; those were additional elements of his dependence on his mother and siblings, which demonstrated his particular need for a family unit. In the latter connection, the applicant relied on the case of Nasri v. France (13 July 1995, Series A no. 320 ‑ B). In addition, he stressed that he had no family or friends in Turkey and was currently living in isolation in a village in Turkey, given his very limited ability to communicate because of his lack of command of Turkish. The applicant argued that his family in Denmark was the only family he had, and that his removal had been both disproportionate and inhuman.", "153. The applicant further contended that the Grand Chamber’s task in the present case was to review the revocation proceedings, which, in his view, had not met the relevant standards of Article 8 of the Convention. With reference to the cases of I.M. v. Switzerland (no. 23887/16, 9 April 2019) and Saber and Boughassal v. Spain (nos. 76550/13 and 45938/14, 18 December 2018), the applicant argued that, similarly to those cases, in its decision of 13 January 2015 the High Court had failed to make a thorough assessment of all the relevant elements, and especially his particular dependence on his family; to carry out a proper balancing exercise, in accordance with the criteria established in the Court’s case-law; and to provide sufficient grounds for his expulsion. The High Court’s reasoning regarding the applicant’s rights protected by Article 8 of the Convention had been given in a summary and superficial manner.", "154. The applicant also argued that the permanent ban on his re-entry had breached the relevant requirements of Article 8. As regards the 2018 amendments introduced in section 32(5) of the Aliens Act (see paragraph 78 above), this new provision had enabled the Danish courts to impose a ban on re-entry for a shorter duration than those fixed in section 32(4) of the Aliens Act. His legal representatives had, however, not been able to find any practice of the Danish courts on the application of that provision. In particular, a search of Danish legal commentaries and legal databases, as well as enquiries to a number of Danish public authorities involved in this field, had not led to the identification of any legal precedent. Against this background, the Government’s argument that the amended provision would not have led to a different outcome in the applicant’s case (see paragraph 166 below) seemed rather speculative.", "155. The applicant further contended that the nature and seriousness of his criminal offence could not have been decisive in the assessment of the necessity of his expulsion, in accordance with the requirements of Article 8, given that he had been convicted of an attack in which several other persons had taken part, and that his individual role in the attack had not been determined in the course of the criminal proceedings against him. Also, in the revocation proceedings the Danish courts should have taken into account the permanent nature of the removal measure, as well as the fact that the applicant had committed no further offences since May 2006.", "156. The applicant agreed with the Government that the new version of section 32 of the Aliens Act could not be applied retroactively, but argued that, since the amended provision had afforded the Danish courts more flexibility in dealing with expulsion issues in criminal cases, it could not be ruled out that, if applied at the time of his criminal trial, that provision could have altered the outcome of his case with the result that he would have had a chance to return to his family in Denmark after spending a period of several years in Turkey.", "The Government", "157. The Government submitted that there had been no violation of Article 8 in the present case. With reference to the Court’s relevant case ‑ law, and, in particular, its judgment in Üner v. the Netherlands ([GC], no. 46410/99, ECHR 2006 ‑ XII), they pointed out that an absolute right not to be expelled – even for a long-term immigrant who had been born in the host State or who had arrived there during early childhood – could not be derived from Article 8 of the Convention (ibid., §§ 55-57).", "158. Whilst conceding that the contested measure had interfered with the applicant’s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention, the Government pointed out that at the time when the applicant’s expulsion order had been upheld by the Supreme Court in 2009 (see paragraph 30 above) and had thus become final, he had been a 24 ‑ year-old unmarried adult who had not founded a family.", "159. They further argued that the interference in question had been justified under Article 8 § 2 of the Convention. The expulsion order had been “in accordance with the law”, had pursued the legitimate aim of “the prevention of disorder or crime” and had been “necessary in a democratic society”.", "160. As regards the last-mentioned aspect, the Government argued that in the criminal proceedings against the applicant, when deciding on the issue of expulsion, the domestic courts at two levels of jurisdiction had expressly considered Article 8 and the Court’s case-law, including the criteria established in Üner and Maslov ( both cited above), in their assessment of the proportionality of the interference with the applicant’s relevant rights. The courts had taken into account the available information on the applicant’s personal circumstances.", "161. The Government adduced detailed arguments regarding the domestic courts’ findings in the context of the criminal proceedings against the applicant, and insisted that, in their assessment of the issue of expulsion, the High Court and the Supreme Court had carried out a thorough assessment of the applicant’s personal circumstances in accordance with the general principles set out by the Court and had carefully struck a fair balance between the opposing interests. In the light of the principle of subsidiarity, the Court ought to be reluctant to disregard the assessment made by the Danish courts. In that connection, referring to the relevant considerations in Ndidi v. the United Kingdom (no. 41215/14, §§ 75-76, 14 September 2017), they argued that the Court should decline to substitute its own conclusions for those of the domestic courts.", "162. The Government also pointed out that under the Danish courts’ case-law, a visitor’s visa could be issued in very extraordinary cases to aliens who had been expelled and permanently banned from re-entry. For the first two years following expulsion, a visa could be issued only where there was an urgent need for a deportee’s presence in Denmark, for instance if the deportee was to give evidence as a witness in legal proceedings and a court deemed the deportee’s presence to be of material importance to the completion of the proceedings; or in the event of acute serious illness of a spouse or a child living in Denmark where regard for the person living in Denmark made such a visit appropriate. After the first two years following deportation, a visa could be issued only where exceptional reasons made it appropriate, for instance, serious illness or death of a family member living in Denmark.", "163. At the hearing before the Grand Chamber, the Government stated that the applicant had never lost his legal capacity.", "164. As regards the indefinite duration of the ban on re-entry imposed on the applicant, the Government pointed out that at the time when the applicant’s expulsion had been ordered, the domestic courts had had no discretion to impose a ban on re-entry of a limited duration. The relevant provision – section 32 of the Aliens Act – had only recently been amended (see paragraph 78 above) in order to make it more nuanced and flexible based on a differentiation of the criteria for the imposition of a ban on re ‑ entry.", "165. The reasoning behind the amendment had been the political will of the Danish legislature to ensure that the domestic courts ordered the expulsion of criminal aliens more often than had previously been the case while taking account of the Court’s Article 8 case-law. Under the amended legislation, the domestic courts could impose an entry ban for a shorter period if they found that a permanent ban would conflict with Denmark’s international obligations. Accordingly, rather than refraining from expelling a criminal alien, the courts could choose to impose a shorter ban on re-entry.", "166. However, the Government pointed out that the amended provision had no retroactive effect, and thus was inapplicable in the applicant’s case. Nor did it allow for a reconsideration of a permanent ban that had already been imposed. Even if that new provision had been applicable, a permanent ban would still have been imposed on the applicant regardless, because of the nature and seriousness of his crime.", "Third-party intervener", "167. The Norwegian Government, who were the only intervening Government to make comments under Article 8, invited the Grand Chamber to develop the principles regarding the expulsion of “settled migrants” established under Article 8 of the Convention in Üner and Maslov (both cited above). Since those cases had been examined from the standpoint of the “family life” aspect of Article 8, the principles established therein were not easily applicable in situations where only the “private life” of the person concerned was involved. The subsequent case-law had relied on factors that presupposed the severance of family ties upon removal, whilst factors more typically associated with “private life”, including the question of adequate medical treatment in the receiving State, had not been included.", "168. More specifically, the Norwegian Government invited the Grand Chamber to elaborate on the Üner and Maslov criteria, having regard to the approach taken in the case of Levakovic v. Denmark (no. 7841/14, 23 October 2018). In their view, in paragraph 44 of the latter judgment the Court had shown sensitivity towards the inadequacy of several of the Üner criteria in cases where only the “private life” aspects of Article 8 came into play. As the Court had stated in paragraph 45 of that judgment, “[a]scertaining whether ‘very weighty reasons’ justif[ied] the expulsion of a settled migrant ... must inevitably require a delicate and holistic assessment ... that must be carried out by the national authorities under the final supervision of the Court”, and the Court should require “strong reasons to substitute its view for that of the domestic courts” where “a balancing exercise ha[d] been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law”.", "The Court’s assessmentThe scope of the case", "The scope of the case", "The scope of the case", "169. According to the Court’s settled case-law, the “case” referred to the Grand Chamber necessarily embraces all aspects of the application previously examined by the Chamber in its judgment. The “case” referred to the Grand Chamber is the application as it has been declared admissible, as well as the complaints that have not been declared inadmissible (see S.M. v. Croatia [GC], no. 60561/14, § 216, 25 June 2020, and the authorities cited therein). This means that the Grand Chamber must examine the case in its entirety in so far as it has been declared admissible; it cannot, however, examine those parts of the application which have been declared inadmissible by the Chamber (see, for instance, Kurić and Others v. Slovenia [GC], no. 26828/06, §§ 234-35, ECHR 2012 (extracts), and Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 87, 6 November 2018). The Court sees no reason to depart from this principle in the present case.", "170. The Court further observes that the Grand Chamber has previously decided in some cases, in view of the importance of the issues at stake, to consider certain complaints which the Chamber had not deemed necessary to examine, even where the outcome was detrimental to the party that had requested referral to it (see, for example, Öneryıldız v. Turkey [GC], no. 48939/99, §§ 141 and 149, ECHR 2004 ‑ XII; Kurić and Others, cited above, § 382; and Ramos Nunes de Carvalho e Sá, cited above, § 88).", "171. In the present case, the Chamber declared inadmissible the applicant’s complaint under Article 8 relating to the original expulsion order as having been lodged out of time. It declared admissible the complaint relating to the revocation proceedings but decided that it was not necessary to examine that complaint under Article 8 (see paragraph 150 above). In the light of the above-mentioned principles, the Court will examine the complaint under Article 8 only in so far as it relates to the authorities’ refusal to revoke the expulsion order, and the implementation of that order, entailing as a consequence a permanent re-entry ban. Its task therefore is not to assess, from the standpoint of Article 8 of the Convention, the original expulsion order and the criminal proceedings in the context of which it was issued, but rather to review whether the revocation proceedings complied with the relevant criteria established by the Court’s case-law (compare T.C.E. v. Germany, no. 58681/12, § 54, 1 March 2018).", "Whether there was interference with the applicant’s right to respect for his private and family life", "172. From the outset, and notwithstanding the conclusion above under Article 3 of the Convention, it should be recalled that in the case of Bensaid (cited above) the Court held:", "“46. Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court’s case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private-life aspect where there are sufficiently adverse effects on physical and moral integrity (see Costello-Roberts v. the United Kingdom, judgment of 25 March 1993, Series A no. 247-C, pp. 60-61, § 36).", "47. ... Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Burghartz, cited above, opinion of the Commission, p. 37, § 47, and Friedl v. Austria, judgment of 31 January 1995, Series A no. 305-B, p. 20, § 45). The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.”", "173. Furthermore, as regards the position of settled migrants the Court held as follows in the case of Maslov (cited above):", "“61. The Court considers that the imposition and enforcement of the exclusion order against the applicant constituted an interference with his right to respect for his ‘private and family life’. It reiterates that the question whether the applicant had a family life within the meaning of Article 8 must be determined in the light of the position when the exclusion order became final (see El Boujaïdi v. France, 26 September 1997, § 33, Reports of Judgments and Decisions 1997-VI; Ezzouhdi v. France, no. 47160/99, § 25, 13 February 2001; Yildiz v. Austria, no. 37295/97, § 34, 31 October 2002; Mokrani v. France, no. 52206/99, § 34, 15 July 2003; and Kaya, cited above, § 57).", "62. The applicant was a minor when the exclusion order was imposed. He had reached the age of majority, namely 18 years, when the exclusion order became final in November 2002 following the Constitutional Court’s decision, but he was still living with his parents. In any case, the Court has accepted in a number of cases concerning young adults who had not yet founded a family of their own that their relationship with their parents and other close family members also constituted ‘family life’ (see Bouchelkia v. France, 29 January 1997, § 41, Reports 1997-I; El Boujaïdi, cited above, § 33; and Ezzouhdi, cited above, § 26).", "63. Furthermore, the Court observes that not all settled migrants, no matter how long they have been residing in the country from which they are to be expelled, necessarily enjoy ‘family life’ there within the meaning of Article 8. However, as Article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual’s social identity, it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of ‘private life’ within the meaning of Article 8. Regardless of the existence or otherwise of a ‘family life’, the expulsion of a settled migrant therefore constitutes an interference with his or her right to respect for private life. It will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the ‘family life’ rather than the ‘private life’ aspect (see Üner, cited above, § 59).”", "174. Whilst in some cases the Court has held that there will be no family life between parents and adult children or between adult siblings unless they can demonstrate additional elements of dependence (see, for instance, A.W. Khan v. the United Kingdom, no. 47486/06, § 32, 12 January 2010, and Narjis v. Italy, no. 57433/15, § 37, 14 February 2019), in a number of other cases it has not insisted on such further elements of dependence with respect to young adults who were still living with their parents and had not yet started a family of their own (see Bouchelkia v. France, 29 January 1997, § 41, Reports 1997 ‑ I; Ezzouhdi v. France, no. 47160/99, § 26, 13 February 2001; Maslov, cited above, §§ 62 and 64; and Yesthla v. the Netherlands (dec.), no. 37115/11, § 32, 15 January 2019). As already stated above, whether it is appropriate for the Court to focus on the “family life” rather than the “private life” aspect will depend on the circumstances of the particular case.", "175. In the present case, the applicant arrived in Denmark at the age of six; he was educated and spent his formative years there; he was issued with a residence permit and remained lawfully resident in the country for fourteen years and eight months (see paragraphs 27 and 30 above). The Court thus accepts that he was a “settled migrant” and therefore Article 8 under its “private life” aspect is engaged.", "176. The applicant also alleged that, prior to his expulsion, he had had a close relationship with his mother, his four siblings and their children, who all lived in Denmark. In particular, while he had remained in forensic psychiatric care, they had visited him and he had visited them. The applicant also stressed his particular vulnerability on account of his mental condition, which, in his view, was an additional element of his dependence on them, and argued that he had had a “family life” with them, which had been interrupted by his expulsion (see paragraph 152 above).", "177. The Court observes that, at the time when the applicant’s expulsion order became final, he was 24 years old (see paragraph 30 above). Even if the Court may be prepared to accept that a person of this age can still be considered a “young adult” (see paragraph 174 above), the facts of the case reveal that from his childhood the applicant was removed from home and placed in foster care, and that, at various times over the years, he lived in socio-educational institutions (see paragraph 18 above). It is thus clear that from his early years the applicant was not living full time with his family (compare Pormes v. the Netherlands, no. 25402/14, § 48, 28 July 2020, and compare and contrast Nasri, cited above, § 44).", "178. The Court is further not convinced that the applicant’s mental illness, albeit serious, can in itself be regarded as a sufficient evidence of his dependence on his family members to bring the relationship between them within the sphere of “family life” under Article 8 of the Convention. In particular, it has not been demonstrated that the applicant’s health condition incapacitated him to the extent that he was compelled to rely on their care and support in his daily life (compare and contrast Emonet and Others v. Switzerland, no. 39051/03, § 35, 13 December 2007; Belli and Arquier-Martinez v. Switzerland, no. 65550/13, § 65, 11 December 2018; and I.M. v. Switzerland, cited above, § 62). Moreover, it has not been argued that the applicant was dependent on any of his relatives financially (compare and contrast I.M. v. Switzerland, cited above, § 62); it is noteworthy in this connection that the applicant has been and remains in receipt of a disability pension from the Danish authorities (see paragraphs 27, 30 and 72 above). Moreover, there is no indication that there were any further elements of dependence between the applicant and his family members. In these circumstances, whilst the Court sees no reason to doubt that the applicant’s relationship with his mother and siblings involved normal ties of affection, it considers that it would be appropriate to focus its review on the “private life” rather than the “family life” aspect under Article 8.", "179. The Court further finds that the refusal to revoke the applicant’s expulsion order in the revocation proceedings and his expulsion to Turkey constituted an interference with his right to respect for his private life (see Hamesevic v. Denmark (dec.), no. 25748/15, §§ 31 and 46, 16 May 2017). Such interference will be in breach of Article 8 of the Convention unless it can be justified under Article 8 § 2 as being “in accordance with the law”, as pursuing one or more of the legitimate aims listed and as being “necessary in a democratic society” in order to achieve the aim or aims concerned (see, among many other authorities, Maslov, cited above, § 65).", "Lawfulness and legitimate aim", "180. It was not disputed that the impugned interference was “in accordance with the law”, namely section 50a of the Aliens Act, and pursued the legitimate aim of preventing disorder and crime. However, the parties disagreed as to whether the interference was “necessary in a democratic society”.", "“Necessary in a democratic society”", "(a) General principles", "181. The Court first reiterates the following fundamental principles established in its case-law as summarised in Üner (cited above, § 54) and quoted in Maslov (cited above, § 68):", "“54. The Court reaffirms at the outset that a State is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94, and Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI). The Convention does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuance of their task of maintaining public order, Contracting States have the power to expel an alien convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be in accordance with the law and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see Dalia v. France, 19 February 1998, § 52, Reports 1998-I; Mehemi v. France, 26 September 1997, § 34, Reports 1997-VI; Boultif, cited above, § 46; and Slivenko v. Latvia [GC], no. 48321/99, § 113, ECHR 2003-X).", "55. The Court considers that these principles apply regardless of whether an alien entered the host country as an adult or at a very young age, or was perhaps even born there. In this context the Court refers to Recommendation 1504 (2001) on the non ‑ expulsion of long-term immigrants, in which the Parliamentary Assembly of the Council of Europe recommended that the Committee of Ministers invite member States, inter alia, to guarantee that long-term migrants who were born or raised in the host country cannot be expelled under any circumstances (see paragraph 37 above). While a number of Contracting States have enacted legislation or adopted policy rules to the effect that long-term immigrants who were born in those States or who arrived there during early childhood cannot be expelled on the basis of their criminal record (see paragraph 39 above), such an absolute right not to be expelled cannot, however, be derived from Article 8 of the Convention, couched, as paragraph 2 of that provision is, in terms which clearly allow for exceptions to be made to the general rights guaranteed in the first paragraph.”", "182. In Maslov (cited above, § 71) the Court further set out the following criteria as relevant to the expulsion of young adults, who have not yet founded a family of their own:", "– the nature and seriousness of the offence committed by the applicant;", "– the length of the applicant’s stay in the country from which he or she is to be expelled;", "– the time that has elapsed since the offence was committed and the applicant’s conduct during that period; and", "– the solidity of social, cultural and family ties with the host country and with the country of destination.", "In addition, the Court will have regard to the duration of the exclusion order (ibid., § 98; see also Külekci v. Austria, no. 30441/09, § 39, 1 June 2017, and Azerkane v. the Netherlands, no. 3138/16, § 70, 2 June 2020). Indeed, the Court notes in this context that the duration of a ban on re-entry, in particular whether such a ban is of limited or unlimited duration, is an element to which it has attached importance in its case-law (see, for example, Yilmaz v. Germany, no. 52853/99, §§ 47-49, 17 April 2003; Radovanovic v. Austria, no. 42703/98, § 37, 22 April 2004; Keles v. Germany, no. 32231/02, §§ 65 ‑ 66, 27 October 2005; Külekci v. Austria, cited above, § 51; Veljkovic-Jukic v. Switzerland, no. 59534/14, § 57, 21 July 2020; and Khan v. Denmark, no. 26957/19, § 79, 12 January 2021).", "183. All of the relevant criteria established in the Court’s case-law should be taken into account by the domestic courts, from the standpoint of either “family life” or “private life” as appropriate, in all cases concerning settled migrants who are to be expelled and/or excluded from the territory following a criminal conviction (see Üner, cited above, § 60, and Saber and Boughassal, cited above, § 47).", "184. Where appropriate, other elements relevant to the case, such as, for instance, its medical aspects, should also be taken into account (see Shala v. Switzerland, no. 52873/09, § 46, 15 November 2012; I.M. v. Switzerland, cited above, § 70; and K.A. v. Switzerland, no. 62130/15, § 41, 7 July 2020).", "185. The weight to be attached to the respective criteria will inevitably vary according to the specific circumstances of each case; where the aim is the “prevention of disorder or crime”, they are designed to help domestic courts evaluate the extent to which the applicant can be expected to cause disorder or to engage in criminal activities (see Maslov, cited above, § 70).", "186. Moreover, for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons are required to justify expulsion (ibid., § 75).", "187. National authorities enjoy a certain margin of appreciation when assessing whether an interference with a right protected by Article 8 was necessary in a democratic society and proportionate to the legitimate aim pursued. However, the Court has consistently held that its task consists in ascertaining whether the impugned measures struck a fair balance between the relevant interests, namely the individual’s rights protected by the Convention on the one hand and the community’s interests on the other. Thus, the State’s margin of appreciation goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether an expulsion measure is reconcilable with Article 8 (ibid., § 76, and the cases cited therein).", "188. Domestic courts must put forward specific reasons in the light of the circumstances of the case, not least to enable the Court to carry out the European supervision entrusted to it. Where the reasoning of domestic decisions is insufficient, without any real balancing of the interests in issue, this would be contrary to the requirements of Article 8 of the Convention. In such a scenario, the Court will find that the domestic courts failed to demonstrate convincingly that the respective interference with a right under the Convention was proportionate to the aim pursued and thus met a “pressing social need” (see El Ghatet v. Switzerland, no. 56971/10, § 47, 8 November 2016).", "189. At the same time, where independent and impartial domestic courts have carefully examined the facts, applying the relevant human rights standards consistently with the Convention and its case-law, and adequately balanced the applicant’s personal interests against the more general public interest in the case, it is not for the Court to substitute its own assessment of the merits (including, in particular, its own assessment of the factual details of proportionality) for that of the competent national authorities. The only exception to this is where there are shown to be strong reasons for doing so (see Ndidi, cited above, § 76; Levakovic, cited above, § 45; Saber and Boughassal, cited above, § 42; and Narjis, cited above, § 43).", "(b) Application of those principles in the present case", "190. In the present case, it appears that a balancing of the various interests at stake was performed in the light of the relevant Article 8 criteria by the national courts in the context of the criminal proceedings against the applicant, when his expulsion was first ordered. The Court further observes that a significant period elapsed between 10 August 2009 (the date on which the expulsion order became final) and 20 May 2015 (the date of the final decision in the revocation proceedings). Thus, it fell to the national authorities to consider the proportionality of the applicant’s expulsion in the revocation proceedings, taking into account any relevant change in his circumstances, notably those pertaining to his conduct and health, that might have taken place during that period (see Maslov, cited above, §§ 90 ‑ 93). The Court reiterates at this juncture that the crux of the present case is the compliance of the revocation proceedings with the relevant criteria under Article 8 of the Convention established by the Court’s case ‑ law (see paragraph 171 above).", "191. The Court observes at the outset that, on account of his mental condition, the applicant was more vulnerable than an average “settled migrant” facing expulsion. The state of his health was required to be taken into account as one of the balancing factors (see paragraph 184 above). In this connection, the Court observes that, by virtue of section 50a of the Aliens Act (see paragraph 76 above), the national courts in the revocation proceedings proceeded to determine whether the applicant’s state of health made it conclusively inappropriate to enforce the expulsion order. At two levels of jurisdiction, the domestic courts had regard to statements from various experts and relevant information from the country concerned. In particular, they examined information from the social security institution in Turkey, a physician at a rehabilitation clinic in Konya under the auspices of the public hospital, and a public hospital in Konya, which confirmed that it was possible for a patient to receive intensive care in a psychiatric hospital matching the applicant’s needs. The courts were thus satisfied that the medication in issue was available in Turkey, including in the area where the applicant would most likely settle down.", "192. The Court sees no reason to question that very thorough consideration was given to the medical aspects of the applicant’s case at the domestic level. Indeed, the High Court carried out a careful examination of the applicant’s state of health and the impact thereon, including the availability and accessibility of the necessary medical treatment, should the removal be implemented. It took into account the cost of medication and care, the distance to be travelled in order to have access to care and the availability of medical assistance in a language spoken by the applicant. However, medical aspects are only one among several factors to be taken into account where appropriate (see paragraph 184 above), as is the case here, in addition to the Maslov criteria outlined in paragraph 182 above.", "193. As regards the nature and seriousness of the criminal offence, the Court observes that, while still a minor, the applicant committed a robbery of which he was convicted in 2001 (see paragraph 12 above). In 2006, acting with a group of other people, he participated in an attack on a man which resulted in the latter’s death (see paragraph 13 above). The Court notes that those were crimes of a violent nature, which cannot be regarded as mere acts of juvenile delinquency (compare and contrast Maslov, cited above, § 81). At the same time, the Court does not overlook the fact that, in the later criminal proceedings in which the applicant was found guilty of aggravated assault, the medical reports revealed that at the time when he had committed that offence, it was very likely that he had been suffering from a mental disorder, namely paranoid schizophrenia, threatening and physically aggressive behaviour being symptoms of that disorder in his case (see paragraph 25 above). In accordance with the Maslov criteria (see paragraph 182 above), it needs to be considered whether “very serious reasons” justified the applicant’s expulsion and hence, for the purposes of the present case, the refusal to revoke the order in 2015 at the time its execution became feasible. A relevant issue for the purposes of the Article 8 analysis is whether the fact that the applicant, on account of his mental illness, was, in the national courts’ view, exempt from punishment under Article 16 § 2 and Article 68 of the Danish Penal Code when convicted in 2009 had the impact of limiting the extent to which the respondent State could legitimately rely on the applicant’s criminal acts as the basis for his expulsion and permanent ban on re-entry.", "194. In its recent case-law dealing with the expulsion of settled migrants under Article 8 of the Convention (see, for example, paragraph 189 above), the Court has held that serious criminal offences can, assuming that the other Maslov criteria are adequately taken into account by the national courts in an overall balancing of interests, constitute a “very serious reason” such as to justify expulsion. However, the first Maslov criterion, with its reference to the “nature and seriousness” of the offence perpetrated by the applicant, presupposes that the competent criminal court has determined whether the settled migrant suffering from a mental illness has demonstrated by his or her actions the required level of criminal culpability. The fact that his or her criminal culpability was officially recognised at the relevant time as being excluded on account of mental illness at the point in time when the criminal act was perpetrated may have the effect of limiting the weight that can be attached to the first Maslov criterion in the overall balancing of interests required under Article 8 § 2 of the Convention.", "195. The Court makes clear that in the present case it is not called upon to make general findings in this regard, but only to determine whether the manner in which the national courts assessed the “nature and seriousness” of the applicant’s offence in the 2015 proceedings adequately took into account the fact that he was, according to the national authorities, suffering from a serious mental illness, namely paranoid schizophrenia, at the moment when he perpetrated the act in question.", "196. In this connection, the Court observes that, in its decision of 13 January 2015 regarding the lifting of the expulsion order, the High Court only briefly referred to the serious nature and gravity of his criminal offence (the first Maslov criterion, see paragraphs 66 and 182 above). No account was taken of the fact that the applicant was, due to his mental illness, ultimately exempt from any punishment but instead sentenced to committal to forensic psychiatric care (see paragraphs 22, 26 and 30 above). The High Court also made only a limited attempt to consider whether there had been a change in the applicant’s personal circumstances with a view to assessing the requirements of public order in the light of the information regarding his conduct during the intervening 7-year period (see paragraphs 34-36, 38-40, 43, 51, 54 and 62 above). Against this background, and given the immediate and long-term consequences for the applicant of the expulsion order being executed (see paragraph 200 below in relation to the permanent nature of the ban on re-entry), the Court considers that the national authorities did not give a sufficiently thorough and careful consideration to the Article 8 rights of the applicant, a settled migrant who had resided in Denmark since the age of six, and did not carry out an appropriate balancing exercise with a view to establishing whether those applicant’s rights outweighed the public interest in his expulsion for the purpose of preventing disorder and crime (compare Ndidi, cited above, §§ 76 and 81).", "197. In that connection, as follows from the third of the Maslov criteria (see paragraph 182 above), the applicant’s conduct during the period that elapsed between the offence of which he had been found guilty and the final decision in the revocation proceedings is particularly important. Thus, the relevant evidence demonstrates that although initially the applicant’s aggressive behavioural patterns had persisted, he had made progress during those years (see paragraphs 34-36, 38-40, 43, 51, 54 and 62 above). However, the High Court did not consider these changes in the applicant’s personal circumstances with a view to assessing the risk of his reoffending against the background of his mental state at the time of the commission of the offence, which had exempted him from punishment, and the apparent beneficial effects of his treatment, which had led to his being discharged from forensic psychiatric care.", "198. A further issue to be considered is the solidity of the applicant’s social, cultural and family ties with the host country and the country of destination (the fourth Maslov criterion). Whilst the applicant’s ties with Turkey seem to have been limited, it cannot be said that he was completely unfamiliar with that country (see paragraphs 30, 59 and 65 above). However, it appears that the High Court gave little consideration to the length of the applicant’s stay in and his ties to his host country Denmark (the second and fourth Maslov criteria respectively; see paragraph 182 above), stressing as it did the fact that he had not founded his own family and had no children in Denmark (see paragraph 66 above). As to the latter aspect, the Court reiterates its finding in paragraph 178 above that, even if he had no “family life”, the applicant could still claim protection of his right to respect for his “private life” within the meaning of Article 8 (see Maslov, cited above, § 93). In this regard, the Court attaches particular weight to the fact, also noted by the domestic courts in the criminal proceedings and by the City Court in the revocation proceedings, that the applicant was a settled migrant who had been living in Denmark since the age of six (see paragraph 59 above). Although the applicant’s child and young adulthood were clearly difficult, suggesting integration difficulties, he had received most of his education in Denmark and his close family members (mother and siblings) all live there. He had also been attached to the Danish labour market for about five years (see paragraphs 27 and 30 above).", "199. Lastly, in order to assess the proportionality of the impugned measure, the duration of the entry ban also needs to be taken into account (see paragraph 182 above). The Court has previously found such a ban to be disproportionate on account of its unlimited duration, whilst in other cases, it has considered the limited duration of the exclusion measure to be a factor weighing in favour of its proportionality (see the authorities cited in paragraph 182 above). The Court has also accepted an expulsion measure as proportionate in a situation where, in spite of the indefinite duration of that measure, possibilities remained for the applicants to enter the returning State (see, for instance, Vasquez v. Switzerland, no. 1785/08, § 50, 26 November 2013, where the applicant could apply for authorisation to enter Switzerland as a tourist), and, even more so, where it was open to the applicants to request the authorities to reconsider the duration of the entry ban (ibid.; see also Kaya v. Germany, no. 31753/02, §§ 68-69, 28 June 2007).", "200. In the present case, the Danish courts, in the revocation proceedings, had no discretion under the domestic law to review and to limit the duration of the ban imposed on the applicant; nor was it open to him to have the exclusion order reconsidered in any other procedure. As a result of the refusal to lift that measure in the revocation proceedings, he was subjected to a permanent re-entry ban. The Court notes the very intrusive nature of that measure for the applicant. In the light of the Government’s submissions regarding the very limited basis on which a visitor’s visa may be issued to aliens who have been expelled and permanently banned from re-entry (see paragraph 162 above), it is clear that the possibility of the applicant re-entering Denmark, even for a short period, remains purely theoretical. As a result, he has been left without any realistic prospect of entering, let alone returning to, Denmark.", "201. In the light of the above, it appears that in the revocation proceedings, despite the significant period of time during which the applicant underwent medical treatment for his mental disorder, the High Court, apart from briefly referring to his lack of family ties in Denmark and to the serious nature and gravity of his criminal offence, did not consider the changes in the applicant’s personal circumstances with a view to assessing the risk of his reoffending against the background of his mental state at the time of the commission of the offence and the apparent beneficial effects of his treatment. Nor did it have due regard to the strength of the applicant’s ties to Denmark as compared to those to Turkey. The Court further notes that under the domestic law, the administrative and judicial authorities had no possibility of making an individual assessment of the duration of the applicant’s exclusion from Danish territory, which was both irreducible and permanent. Therefore, and notwithstanding the respondent State’s margin of appreciation, the Court considers that, in the particular circumstances of the present case, the domestic authorities failed to duly take into account and to properly balance the interests at stake (see paragraphs 182 and 183 above).", "202. Accordingly, there has been a violation of Article 8 of the Convention.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "203. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "204. Before the Chamber, the applicant claimed 40,000 euros (EUR) as compensation for non-pecuniary damage relating to the alleged violation of Articles 3 and 8 of the Convention. The Government contested that claim as excessive.", "205. The Chamber decided that a finding of a violation of Article 3 constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.", "206. In the proceedings before the Grand Chamber, the applicant claimed EUR 30,000 in respect of non-pecuniary damage. He argued, in particular, that he had suffered distress, frustration and feelings of injustice resulting from the legal proceedings in Denmark and his subsequent removal to Turkey, which had interrupted his medical treatment as well as his private and family life in Denmark. In his view, his suffering could not be compensated for by a mere finding of a violation.", "207. The Government submitted that, in the absence of a violation of the applicant’s rights secured by Articles 3 or 8, there was no call to make any award under Article 41 of the Convention.", "208. The Court considers that, having regard to the circumstances of the case, the conclusion it has reached under Article 8 of the Convention constitutes sufficient just satisfaction in respect of any non-pecuniary damage that may have been sustained by the applicant. It therefore makes no award under this head (see Mehemi v. France, 26 September 1997, § 41, Reports 1997 ‑ VI; Yildiz v. Austria, no. 37295/97, § 51, 31 October 2002; and Radovanovic v. Austria (just satisfaction), no. 42703/98, § 11, 16 December 2004).", "Costs and expenses", "209. Before the Chamber, the applicant claimed costs and expenses incurred in the proceedings before the Court in the amount of 103,560 Danish kroner (DKK – approximately EUR 14,000), corresponding to legal fees for a total of eighty-six hours of work performed by his representatives and their legal team. The Government disputed that amount as being excessive and pointed out that the applicant had applied for and had been provisionally granted legal aid in the amount of DKK 40,000 (approximately EUR 5,400) under the Danish Legal Aid Act ( Lov 1999 ‑ 12 ‑ 20 nr. 940 om retshjælp til indgivelse og førelse af klagesager for internationale klageorganer i henhold til menneskerettigheds-konventioner ).", "210. Bearing in mind the amount of legal aid that had been granted to the applicant at the domestic level, the Chamber considered it reasonable to award him EUR 2,000, covering costs for the proceedings before the Court.", "211. In the proceedings before the Grand Chamber, in his observations of 28 May 2020 the applicant sought reimbursement of DKK 322,700 (approximately EUR 45,000) for legal costs and expenses incurred in the proceedings before the Chamber and Grand Chamber. He submitted a detailed invoice, which indicated the estimate of the total number of hours spent by each of two legal representatives and their legal team members on working on the case, as well as hourly rates of their fees. He also pointed out that, as of that date, he had only received DKK 20,230.63 (approximately EUR 2,700) under the Danish Legal Aid Act. In an additional claim submitted on 24 June 2020, after the hearing before the Grand Chamber, the applicant specified that, in view of the complexity of the case and, in particular, the significant number of third-party interveners who had submitted observations, the actual time spent by the representatives and their team had exceeded the above-mentioned estimate and ranged from 104 hours for Mr Trier to thirty-two hours for Mr Boelskifte and from eight to fifty-four hours for various members of their legal team. He claimed the reimbursement of an amount totalling DKK 372,420 (approximately EUR 50,000).", "212. The Government argued that the number of hours spent on the case as claimed by the applicant’s representatives had exceeded the normal and necessary time spent by lawyers in similar cases, with the result that the amount claimed was excessive. They also pointed out that under the Danish Legal Aid Act, the applicant had already been granted legal aid in the amount of DKK 20,230.63 (approximately EUR 2,700) by a decision of 8 April 2020, and in the amount of DKK 18,597.50 (approximately EUR 2,500) by a decision of 23 June 2020.", "213. The Court notes that the applicant has provisionally been granted DKK 38,828.13 under the Danish Legal Aid Act. However, it is uncertain whether the applicant will subsequently be granted additional legal aid by the Ministry of Justice and how the dispute between the parties about the applicant’s outstanding claim for legal aid will be decided. Therefore, the Court finds it necessary to assess and decide the applicant’s claim for costs and expenses.", "214. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, for instance, Osman v. Denmark, no. 38058/09, § 88, 14 June 2011). In the present case, regard being had to the documents in its possession and the above criteria, the Court is satisfied that the applicant’s claim was substantiated. It further notes that this case has been relatively complex and has required a certain amount of work. On the other hand, the Court doubts whether, in the proceedings before the Grand Chamber, the case required the amount of work claimed by the applicant, given that a significant part of it had been carried out in the proceedings before the Chamber.", "215. In these circumstances, having regard to the details of the claims submitted by the applicant, the Court considers it reasonable to award the reduced amount of EUR 20,000, together with any tax that may be chargeable to the applicant.", "Default interest", "216. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant was born in 1965 and lives in Cologne ( Germany ).", "10. The facts of the case, as submitted by the parties, may be summarised as follows.", "A. Investigation proceedings", "11. On 29 October 1993 four plain-clothes policemen observed the applicant on at least two different occasions take a tiny plastic bag (a so ‑ called “ bubble ” ) out of his mouth and hand it over to another person in exchange for money. Believing that these bags contained drugs, the police officers went to arrest the applicant, whereupon he swallowed another bubble he still had in his mouth.", "12. The police officers did not find any drugs on the applicant. Since further delay might have frustrated the conduct of the investigation, the public prosecutor ordered that emetics ( Brechmittel ) be administered to the applicant by a doctor in order to provoke the regurgitation of the bag ( Exkorporation ).", "13. The applicant was taken to a hospital in Wuppertal-Elberfeld. According to the Government, the doctor who was to administer the emetics questioned the applicant about his medical history (a procedure known as obtaining an anamnesis). This was disputed by the applicant, who claimed that he had not been questioned by a doctor. As the applicant refused to take the medication necessary to provoke vomiting, he was held down and immobilised by four police officers. The doctor then forcibly administered to him a salt solution and the emetic ipecacuanha syrup through a tube introduced into his stomach through the nose. In addition, the doctor injected him with apomorphine, another emetic that is a derivative of morphine. As a result, the applicant regurgitated one bubble containing 0.2182 grams of cocaine. Approximately an hour and a half after being arrested and taken to the hospital, the applicant was examined by a doctor and declared fit for detention.", "14. When visited by the police in his cell two hours after being given the emetics, the applicant, who was found not to speak German, said in broken English that he was too tired to make a statement about the alleged offence.", "15. Pursuant to an arrest warrant that had been issued by the Wuppertal District Court, the applicant was remanded in custody on 30 October 1993.", "16. The applicant maintained that for three days following the treatment to which he was subjected he was only able to drink soup and that his nose repeatedly bled for two weeks because of wounds he had received when the tube was inserted. This was disputed by the Government, who stressed that the applicant had failed to submit a medical report to prove his allegation.", "17. Two and a half months after the administration of the emetics, the applicant underwent a gastroscopy in the prison hospital after complaining of continuous pain in the upper region of his stomach. He was diagnosed as suffering from irritation in the lower area of the oesophagus caused by the reflux of gastric acid. The medical report did not expressly associate this condition with the forced administration of the emetics.", "18. The applicant was released from prison on 23 March 1994. He claimed that he had had to undergo further medical treatment for the stomach troubles he had suffered as a result of the forcible administration of the emetics. He did not submit any documents to confirm that he had received medical treatment. The Government, for their part, maintained that the applicant had not received any medical treatment.", "B. Domestic court proceedings", "19. In his submissions dated 20 December 1993 to the Wuppertal District Court, the applicant, who was represented by counsel throughout the proceedings, objected to the use at his trial of the evidence obtained through the administration of emetics, a method he considered to be illegal. By using force to provoke the regurgitation of the bubble of cocaine, the police officers and the doctor concerned were guilty of causing him bodily harm in the course of their duties ( Körperverletzung im Amt ). The administration of toxic substances was prohibited by Article 136a of the Code of Criminal Procedure (see paragraph 34 below). His bodily functions had been manipulated, since bodily activity had been provoked by suppressing the control reactions of the brain and the body. In any event, administering emetics was a disproportionate measure and therefore not authorised by Article 81a of the Code of Criminal Procedure (see paragraphs 33 and 35-40 below). It would have been possible to obtain evidence of the alleged offence by waiting for the bubble to pass through his system naturally. The applicant further argued that the only other method authorised by Article 81a of the Code of Criminal Procedure would have been irrigation of the stomach.", "20. On 23 March 1994 the Wuppertal District Court convicted the applicant of drug trafficking and sentenced him to one year ’ s imprisonment, suspended, and probation. It rejected the defence ’ s argument that the administration of emetics under Article 81a of the Code of Criminal Procedure was a disproportionate means of recovering a bubble containing just 0.2 g of cocaine.", "21. The applicant appealed against the judgment.", "22. On 17 May 1995 the Wuppertal Regional Court upheld the applicant ’ s conviction but reduced the length of the suspended prison sentence to six months. It further ordered the forfeiture ( Verfall ) of 100 German marks that had been found on the applicant at the time of his arrest on the ground that it was the proceeds of sale of two drug bubbles.", "23. The Regional Court found that the evidence obtained following the public prosecutor ’ s order to provoke the regurgitation of the bubble of cocaine was admissible. The measure had been carried out because further delay might have frustrated the conduct of the investigation. Pursuant to Article 81a of the Code of Criminal Procedure, the administration of the substances in question, even if effected against the suspect ’ s will, was legal. The procedure had been necessary to secure evidence of drug trafficking. It had been carried out by a doctor and in compliance with the rules of medical science. The defendant ’ s health had not been put at risk and the principle of proportionality had been adhered to.", "24. The applicant appealed against this judgment on points of law. He argued in particular that Article 81a of the Code of Criminal Procedure did not authorise the administration of emetics, as it did not permit the administration of life-threatening substances by dangerous methods. Furthermore, Article 81a prohibited measures such as the one in question that resulted in a suspect effectively being forced to contribute actively to his own conviction. He further submitted that the impugned measure had violated Articles 1 and 2 of the Basic Law ( Grundgesetz – see paragraphs 31-32 below), and disregarded in particular the right to respect for human dignity.", "25. On 19 September 1995 the Düsseldorf Court of Appeal dismissed the applicant ’ s appeal. It found that the Regional Court ’ s judgment did not contain any error of law that was detrimental to the accused.", "26. The applicant lodged a complaint with the Federal Constitutional Court. He reiterated that the administration of emetics was a disproportionate measure under Article 81a of the Code of Criminal Procedure.", "27. On 15 September 1999 the Federal Constitutional Court declared the applicant ’ s constitutional complaint inadmissible under the principle of subsidiarity.", "28. It considered that the administration of emetics, including apomorphine, a morphine derivative, raised serious constitutional issues with respect to the right to physical integrity (Article 2 § 2 of the Basic Law – see paragraph 32 below) and to the principle of proportionality which the criminal courts had not yet addressed.", "29. The Federal Constitutional Court found that the applicant had not availed himself of all the remedies at his disposal ( alle prozessualen Möglichkeiten ) to contest the measure before the criminal courts in order to avoid any underestimation of the importance and scope of the fundamental right laid down in Article 2 § 2, first sentence, of the Basic Law ( um eine Verkennung von Bedeutung und Tragweite des Grundrechts des Art. 2 Abs. 2 Satz 1 GG zu verhindern ).", "30. It further stated that the administration of emetics did not give rise to any constitutional objections of principle either with respect to human dignity protected by Article 1 § 1 of the Basic Law or the principle against self-incrimination guaranteed by Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law." ]

[ "II. RELEVANT DOMESTIC, COMPARATIVE AND INTERNATIONAL LAW AND PRACTICE", "1. Domestic law and practice", "( a ) The Basic Law", "31. Article 1 § 1 of the Basic Law reads as follows:", "“ The dignity of human beings is inviolable. All public authorities have a duty to respect and protect it. ”", "32. Article 2, in so far as relevant, provides:", "“1. Everyone shall have the right to the free development of their personality provided that they do not interfere with the rights of others or violate the constitutional order or moral law [ Sittengesetz ].", "2. Every person shall have the right to life and physical integrity. ... ”", "( b ) The Code of Criminal Procedure", "33. Article 81a of the Code of Criminal Procedure, in so far as relevant, reads as follows:", "“ 1. A physical examination of the accused may be ordered for the purpose of establishing facts of relevance to the proceedings. To this end, blood samples may be taken and other bodily intrusions effected by a doctor in accordance with the rules of medical science for the purpose of examination without the accused ’ s consent, provided that there is no risk of damage to his health.", "2. Power to make such an order shall be vested in the judge and, in cases in which delay would jeopardise the success of the examination, in the public prosecutor ’ s office and officials assisting it ...”", "34. Article 136a of the Code of Criminal Procedure on prohibited methods of interrogation ( verbotene Vernehmungsmethoden ) provides:", "“ 1. The freedom of the accused to make decisions and to manifest his will shall not be impaired by ill-treatment, induced fatigue, physical interference, the administration of drugs, torment, deception or hypnosis. Coercion may be used only in so far as it is permitted by the law on criminal procedure. Threatening the accused with measures that are not permitted under the law on criminal procedure or holding out the prospect of an advantage that is not contemplated by statute shall be prohibited.", "2. Measures which impair the accused ’ s memory or ability to understand and accept a given situation [ Einsichtsfähigkeit ] shall not be permitted.", "3. The prohibition under sub -paragraphs 1 and 2 shall apply even if the accused has consented [to the proposed measure]. Statements obtained in breach of this prohibition shall not be used [in evidence], even if the accused has agreed to their use.”", "35. German criminal courts and legal writers disagree as to whether Article 81a of the Code of Criminal Procedure authorises the administration of emetics to a suspected drug dealer who has swallowed drugs on arrest.", "36. The view taken by the majority of the German courts of appeal (see, inter alia, the decision of the Bremen Court of Appeal of 19 January 2000, NStZ-RR 2000, p. 270, and the judgment of the Berlin Court of Appeal of 28 March 2000, JR 2001, pp. 162- 64 ) is that Article 81a of the Code of Criminal Procedure can serve as a legal basis for the administration of emetics in such circumstances.", "37. For example, in its judgment cited above, the Berlin Court of Appeal had to deal with the case of a suspected drug dealer who agreed to swallow ipecacuanha syrup after being threatened with its administration through a nasogastric tube if he refused. It found:", "“Pursuant to Article 81a § 1, first sentence, of the Code of Criminal Procedure, a physical examination of the accused may be ordered for the purpose of establishing facts of relevance to the proceedings. ...", "( a) Contrary to the view taken by the appellant, legal commentators are almost unanimous in agreeing that the administration of emetics in order to obtain quantities of drugs the accused has swallowed involves a bodily intrusion within the meaning of that provision (see HK - Lemke, StPO, 2 nd edition, § 9; Dahs in Löwe ‑ Rosenberg, StPO, 24 th edition, § 16; KK - Senge, StPO, 4 th edition, §§ 6, 14; see, with regard to Article 81a of the Code of Criminal Procedure, Rogall, SK ‑ StPO, Article 81a, § 48 and NStZ 1998, pp. 66- 67, and Schaefer, NJW 1997, pp. 2437 et seq. ; contrast Frankfurt Court of Appeal, NJW 1997, p. 16 4 7 with note by Weßlau, StV 1997, p. 341).", "This intrusion also does not violate human dignity protected by Article 1 § 1 of the Basic Law or the principle against self-incrimination contained in Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law. Pursuant to Article 2 § 2, third sentence, of the Basic Law, interferences with these basic rights are permitted if they have a statutory basis. The Federal Constitutional Court has already found on several occasions that, as a statutory provision enacted by Parliament, Article 81a of the Code of Criminal Procedure meets this requirement ... Furthermore, it has found more specifically that the administration of emetics in reliance on that provision did not give rise to any constitutional objections of principle either (see Federal Constitutional Court, StV 2000, p. 1 – the decision in the present case ). It did not, therefore, find it necessary to discuss in detail the opinion expressed by the Frankfurt (Main) Court of Appeal ( NJW 1997, pp. 1647 - 48 ) which is occasionally shared by legal writers (see Weßlau, StV 199 7, pp. 341 - 42), ... that the administration of emetics forces the accused to contribute to his own conviction and to actively do something he does not want to, namely regurgitate. This Court does not share the [Frankfurt Court of Appeal ’ s] view either, as the right of an accused to remain passive is not affected by his or her having to tolerate an intervention which merely provokes ‘ involuntary bodily reactions ’. ...", "( e) ... this Court does not have to decide whether the evidence obtained by the administration of emetics may be used if the accused has refused to comply with his duty to tolerate the measure and his resistance to the introduction of a tube though the nose has been overcome by physical force. That point is not in issue in the present case ... The Regional Court ... stated that [on the facts of] the case decided by the Frankfurt ( Main ) Court of Appeal it too would have excluded the use of the evidence obtained because of the clearly disproportionate nature of the measure. It did, however, expressly and convincingly demonstrate that the facts of the present case were different.”", "38. In its judgment of 11 October 1996, however, the Frankfurt ( Main ) Court of Appeal held that Article 81a of the Code of Criminal Procedure did not authorise the administration of emetics. The case concerned the administration of an overdose of ipecacuanha syrup to a suspected drug dealer by force through a nasogastric tube and his injection with apomorphine. The court found:", "“The forced administration of emetics was not covered by the Code of Criminal Procedure. Even Article 81a does not justify the administration of an emetic by force. Firstly, the administration of an emetic constitutes neither a physical examination nor a bodily intrusion carried out by a doctor for examination purposes within the meaning of that provision. It is true that searching for foreign objects may be justified by Article 81a ... However, the emetic was used not to search for foreign objects, but to retrieve objects – whose presence was at least probable – in order to use them in evidence ... This aim was more akin to searching for or seizing an object within the meaning of Articles 102, 94 et seq. of the Code of Criminal Procedure than to a physical examination ... – although those provisions do not, on the face of it, include forcible interference with a person ’ s physical integrity as a possible measure. ...", "Secondly, an accused is not the object of criminal proceedings ... The forced administration of emetics violates the principle of passivity [ Grundsatz der Passivität ], since its purpose is to force the accused actively to do something that he is unwilling to do, namely regurgitate. This is neither permitted under Article 81a of the Code of Criminal Procedure nor compatible with the position of the accused in criminal proceedings. ...", "Consequently, the conduct of the prosecuting authorities constitutes unlawful interference with the accused ’ s physical integrity (Article 2 § 1, first sentence, of the Basic Law). ...", "The forcible administration of emetics in the absence of any legal basis therefor also violates the duty to protect human dignity and the accused ’ s general personality rights (Articles 1 § 1 and 2 § 1 of the Basic Law). ...", "The prohibition on obtaining the evidence [in that manner] and the other circumstances of the case prevent this evidence from being used in court. ... ”", "39. According to many legal writers, Article 81a of the Code of Criminal Procedure authorises the administration of emetics to suspected drug dealers in order to obtain evidence (see also the authors cited above at paragraph 37 ). This view is taken, for example, by Rogall ( NStZ 1998, pp. 66-68 and Systematischer Kommentar zur Strafprozeßordnung und zum Gerichtsverfassungsgesetz, München 2005, Article 81a StPO, § 48 ) and by Kleinknecht and Meyer-Goßner ( StPO, 44 th edition, Article 81a, § 22 – administration of emetics permitted for the investigation of serious offences).", "40. A considerable number of legal writers, however, take the view that the Code of Criminal Procedure, Article 81a in particular, does not permit the administration of emetics. This opinion is held, for example, by Dallmeyer ( StV 1997, pp. 606- 10, and KritV 2000, pp. 252- 59 ), who considers that Article 81a does not authorise a search – as opposed to an examination – of the interior of a defendant ’ s body. Vetter ( Problemschwerpunkte des § 81a StPO – Eine Untersuchung am Beispiel der Brechmittelvergabe im strafrechtlichen Ermittlungsverfahren, Neuried 2000, pp. 72-82, 161) considers that the forcible administration of emetics through a nasogastric tube is irreconcilable with the rules of medical science, disproportionate and liable to damage the defendant ’ s health.", "(c) Medical expert opinions on the forced administration of emetics to suspected drug dealers", "41. Medical experts disagree as to whether the forcible administration of emetics through the insertion of a nasogastric tube is advisable from a medical point of view. While some experts consider that emetics should be administered to a suspect in order to protect his health even if he resists such treatment, others take the view that such a measure entails serious health risks for the person concerned and should not therefore be carried out.", "42. The medical experts who argue in favour of the forcible administration of emetics stress that even if this measure is not primarily carried out for medical reasons, it may nevertheless serve to prevent a possibly life-threatening intoxication. As the packaging of drugs swallowed on arrest is often unreliable, it is preferable from a medical standpoint for emetics to be administered. This measure poses very few risks, whereas there is a danger of death if the drugs are allowed to pass through the body naturally. Drugs can be extracted from the stomach up to one hour, in some cases two, after being swallowed. Administering emetics is a safe and fast method (the emetic usually takes effect within 15 to 30 minutes ) of retrieving evidence of a drugs offence, as it is rare for them not to work. Even though the forcible introduction of a tube through the nose can cause pain, it does not pose any health risks as the act of swallowing can be induced by the mechanical stimulus of the tube in the throat (see, inter alia, Birkholz, Kropp, Bleich, Klatt and Ritter, “ Exkorporation von Betäubungsmitteln – Erfahrungen im Lande Bremen ”, Kriminalistik 4/97, pp. 277- 83).", "43. The emetic ipecacuanha syrup has a high margin of safety. Side ‑ effects to be expected merely take the form of drowsiness, diarrhoea and prolonged vomiting. Rare, more serious complications include Mallory-Weiss syndrome or aspiration pneumonia. These may occur if the person concerned has sustained previous damage to his or her stomach or if the rules governing the administration of emetics, notably that the patient is fully alert and conscious, are not observed (see, for example, Birkholz, Kropp, Bleich, Klatt and Ritter, cited above, pp. 278-81, and American Academy of Clinical Toxicology/European Association of Poisons Centres and Clinical Toxicologists, “ Position Paper: Ipecac Syrup ”, Journal of Toxicology, Clinical Toxicology, vol. 42, no. 2, 2004, pp. 133- 43, in particular, p. 141 ).", "44. Those medical experts who argue against the administration of emetics by force point out in particular that the forcible introduction of emetics through a nasogastric tube entails considerable health risks. Even though it is desirable for drugs to be eliminated from the suspect ’ s body as quickly as possible, the use of a nasogastric tube or any other invasive method can be dangerous because of the risk of perforation of the drug packaging with potentially fatal consequences. Furthermore, if the tube is badly positioned liquid may enter the lungs and cause choking. Forced regurgitation also involves a danger of vomit being inhaled, which can lead to choking or a lung infection. The administration of emetics cannot therefore be medically justified without the consent of the person concerned, and, without this consent, this method of securing evidence will be incompatible with the ethics of the medical profession, as has been illustrated in particular by the death of a suspect following such treatment (see, inter alia, Odile Diamant-Berger, Michel Garnier and Bernard Marc, Urgences Médico ‑ Judiciaires, 1995, pp. 24-33; Scientific Committee of the Federal Medical Council, report dated 28 March 1996 in response to the Federal Constitutional Court ’ s request to assess the dangers involved in the forcible administration of emetics; and the resolution adopted by the 105 th German Medical Conference, Activity Report of the Federal Medical Association, point 3).", "( d ) Practice concerning the administration of emetics by force in Germany", "45. There is no uniform practice on the use of emetics to secure evidence of a drugs offence in the German Länder. Since 1993, five of the sixteen Länder ( Berlin, Bremen, Hamburg, Hesse and Lower Saxony ) have used this measure on a regular basis. Whereas some Länder discontinued its use following the death of a suspect, others are still resorting to it. In the vast majority of cases in which emetics have been used, the suspects chose to swallow the emetic themselves, after being informed that it would otherwise be administered forcibly. In other Länder, emetics are not forcibly administered, partly because, on the basis of medical advice, it is regarded as a disproportionate and dangerous measure, and partly because it is not considered a necessary means of combating drugs offences.", "46. There have been two fatalities in Germany as a result of the forcible administration of ipecacuanha syrup to suspected drug dealers through a tube introduced through the nose into the stomach. In 2001 a Cameroonian national died in Hamburg. According to the investigation, he had suffered a cardiac arrest as a result of stress caused by the forcible administration of emetics. He was found to have been suffering from an undetected heart condition. In 2005 a Sierra Leonean national died in Bremen. The investigation into the cause of his death has not yet been completed. The emergency doctor and a medical expert suggested that the applicant had drowned as a result of a shortage of oxygen when water permeated his lungs. Criminal investigations for homicide caused by negligence have been launched against the doctor who pumped the emetic and water into the suspect ’ s stomach and against the emergency doctor called to attend to him.", "47. As a consequence of the fatality in Bremen, the Head of the Bremen Chief Public Prosecutors ( Leitender Oberstaatsanwalt ) has ordered the forcible administration of emetics to be discontinued in Bremen for the time being. Pending the outcome of the investigation, a new procedure has been set up by the Senators for Justice and the Interior. Under this procedure, a person suspected of swallowing drugs must be informed by a doctor about the risks to his health if the drugs remain in his body. The suspect can choose to take emetics or a laxative if a medical examination discloses that it poses no risks to his health. Otherwise, he is detained in a specially equipped cell until the drug packages are passed naturally.", "2. Public international law, comparative law and practice", "( a ) United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment", "48. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as adopted by the United Nations General Assembly on 10 December 1984 (resolution 39/46), provides:", "Article 1 § 1", "“For the purposes of this Convention, the term ‘ torture ’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”", "Article 15", "“Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”", "Article 16 § 1", "“Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in Articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.”", "( b ) Case-law of United States courts", "49. In Rochin v. California ( 342 US 165 (1952) ), the United States Supreme Court reversed the petitioner ’ s conviction for unlawful possession of drugs. On the basis of information that the petitioner was selling narcotics, three state officers entered his home and forced their way into his bedroom. They unsuccessfully attempted to extract by force drug capsules which the petitioner had been observed to put into his mouth. The officers then took him to a hospital, where an emetic was forced through a tube into his stomach against his will. He regurgitated two capsules which were found to contain morphine. These were admitted in evidence in the face of his objection. The Supreme Court held on 2 January 1952 that the conviction had been obtained by methods in violation of the Due Process Clause in the Fourteenth Amendment.", "50. Mr Justice Frankfurter, delivering the opinion of the Court, found:", "“Applying these general considerations to the circumstances of the present case, we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach ’ s contents – this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.", "It has long since ceased to be true that due process of law is heedless of the means by which otherwise relevant and credible evidence is obtained. This was not true even before the series of recent cases enforced the constitutional principle that the States may not base convictions upon confessions, however much verified, obtained by coercion. ... It would be a stultification of the responsibility which the course of constitutional history has cast upon this Court to hold that in order to convict a man the police cannot extract by force what is in his mind but can extract what is in his stomach.", "To attempt in this case to distinguish what lawyers call ‘ real evidence ’ from verbal evidence is to ignore the reasons for excluding coerced confessions. Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community ’ s sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society. ”", "51. In State of Ohio v. Dario Williams ( 2004 WL 1902368 (Ohio App. 8 Dist.) ), the Ohio Court of Appeals held on 26 August 2004 that the pumping of the defendant ’ s stomach in the face of his objections was not an unreasonable search and seizure. The defendant was observed engaging in a hand-to-hand transaction typical of drug dealing. When police officers ordered the defendant to their vehicle, he put something in his mouth and ran off. In the opinion of the court, flushing out the defendant ’ s stomach by gastric lavage by a physician in a hospital setting was not an unreasonable measure, even though the defendant violently objected to the procedure and had to be sedated. Swallowing the cocaine, which had been seen in the defendant ’ s mouth, put his life in jeopardy and he was destroying evidence.", "52. Mr Justice T.E. McMonagle, delivering the Court of Appeals ’ opinion, found:", "“19. Williams directs us to Rochin v. California, 342 US 165 (1952), ... one of the prominent cases on intrusive searches.", "...", "21. Rochin is not dispositive, however. After Rochin, the United States Supreme Court decided Schmerber v. California, 384 US 757 (1966), 86 S.Ct. 1826, 16 L.Ed.2d 908, in which a police officer ordered an individual suspected of driving while intoxicated to submit to a blood test at the hospital where he was being treated for injuries sustained in an automobile collision. The Supreme Court noted that ‘ the Fourth Amendment ’ s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner ’. ... Finding no Fourth Amendment violation, the Court set forth several criteria to be considered in determining the reasonableness of an intrusive search: 1) the government must have a clear indication that incriminating evidence will be found; 2) the police officers must have a warrant, or, there must be exigent circumstances, such as the imminent destruction of evidence, to excuse the warrant requirement; and 3) the method used to extract the evidence must be reasonable and must be performed in a reasonable manner.", "...", "23. Applying the Schmerber factors to the facts of this case, it is apparent that the pumping of Williams ’ stomach was a lawful search and seizure. First, the officers observed Williams in an area known for illegal drug activity engage in a hand-to-hand transaction indicative of drug activity. When he saw the officers, he put whatever was in his hand in his mouth and then ran away. This behavior was a ‘ clear indication ’ to the officers that Williams had secreted drugs in his mouth. Moreover, it was reasonable for the officers to conclude that Williams ’ life could be in jeopardy after they observed crack cocaine in his mouth and saw him trying to chew it and swallow it. Furthermore, Williams was destroying the evidence necessary to convict him of drug possession. Accordingly, this case falls within the exigent circumstances exception to the warrant requirement.", "24. Finally, it is apparent that the method and manner of the search were not unreasonable. The facts indicate that a physician administered Williams ’ medical treatment in a hospital setting, according to accepted medical procedures ...", "25. In Schmerber, the United States Supreme Court expressed an acceptance of a search conducted in a reasonable manner by a physician. The physician is certainly more qualified than a police officer to determine the extent to which a procedure is life threatening.", "26. Assuming that [a defendant] swallowed the cocaine, if the drugs were packaged in such a way as to be impervious to intestinal processes, the physician would certainly be in a position to pump the stomach of the [defendant], which is a reasonable medical procedure less traumatic than the forced emetic in Rochin. Again, this is the kind of conduct that Schmerber finds more reasonable because it is done in the confines of a hospital with appropriate medical supervision.”", "(c) Practice concerning the administration of emetics in the member States of the Council of Europe", "53. The Government submitted a survey based on information obtained from the governments of the member States of the Council of Europe via their Agents or, if the government concerned had not provided information, from the German Embassy in the country concerned. According to the survey, emetics are forcibly administered to suspected drug dealers in practice in four countries ( Luxembourg, Norway, “ the former Yugoslav Republic of Macedonia ” and Germany ). In thirty- three countries emetics are not used against a suspect ’ s will to retrieve drug bubbles that have been swallowed (Albania, Armenia, Austria, Belgium, Bosnia and Herzegovina, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Georgia, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Malta, Moldova, the Netherlands, Portugal, Romania, Russia, Serbia and Montenegro, Slovakia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom). In three countries ( Croatia, Poland and Slovenia ) there is a legal basis for the use of emetics, but no information was supplied as to whether this measure is applied in practice. No information with respect to the use of emetics in practice was obtained from six member States ( Andorra, Azerbaijan, Bulgaria, Liechtenstein, San Marino and Monaco ).", "54. The applicant partly contested the Government ’ s findings. He noted that the Government had said that three countries other than Germany ( Luxembourg, “the former Yugoslav Republic of Macedonia ” and Norway ) permitted the administration of emetics to suspected drug dealers and used the measure in practice. However, he said that the Government had failed to adduce any evidence of emetics being administered by force against the accused ’ s will in those member States. With respect to Norway in particular, the applicant disputed that the forcible introduction of a nasogastric tube as in his case was legal. As regards the administration of emetics in Croatia, Poland and Slovenia, he contested the existence of any legal basis for such a measure in those countries, irrespective of the position in practice. Consequently, Germany was the only Contracting State which was proven to actually resort to the impugned measure. In all the other member States the authorities waited for the drugs to pass through the body naturally.", "55. Other materials before the Court confirm the parties ’ findings that emetics are not forcibly administered in practice in several Convention States examined ( Belgium, Estonia, France, Ireland, the Netherlands, Spain and the United Kingdom ). In these States, the authorities wait for the drugs to pass through the body naturally. Use is routinely made of special toilets to recover and clean drugs that have been swallowed. The materials further indicated that in Norway special toilets (so-called Pacto 500 toilets) are generally used in order to recover ingested drugs. However, during its visit to Norway in 1993, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( CPT ) witnessed the administration of an emetic (brine) to a detainee in Oslo police headquarters (see the CPT report on its visit to Norway in 1993, § 25). With respect to Poland, it has not been confirmed whether emetics are administered by force in practice.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "56. The applicant claimed that he had been subjected to inhuman and degrading treatment as a result of having been forcibly administered emetics. He relied on Article 3 of the Convention, which provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "57. The Government contested this allegation.", "A. The parties ’ submissions", "1. The applicant", "58. According to the applicant, the administration of emetics by force had constituted a serious interference with his physical integrity and posed a serious threat to his health, and even life, since the emetics used – ipecacuanha syrup and apomorphine – could have provoked life ‑ threatening side effects. The insertion of a tube by force through the nose of a suspect who did not cooperate in the procedure could have caused damage to the nose, throat and gullet and even burst drug bubbles in the stomach. The danger of administering emetics by force was illustrated by the fact that it had already resulted in the deaths of two suspects in Germany. The vast majority of the member States of the Council of Europe as well as the United States considered this method to be illegal. The interference could not be justified on grounds of medical assistance. On the contrary, it merely increased the risk of the suspect being poisoned by the drugs he had swallowed. A suspect ’ s express opposition to undergoing medical treatment had to be respected in a democratic society as part of the individual ’ s right to self-determination.", "59. The applicant further argued that the administration of emetics had been aimed at intimidating and debasing him in disregard of his human dignity. The manner in which he had been forced to undergo a life ‑ threatening medical intervention had been violent, agonising and humiliating. He had been degraded to the point of having to vomit while being observed by several police officers. Being in police custody, he had found himself in a particularly vulnerable position.", "60. Moreover, the applicant maintained that no anamnesis to establish his medical history and physical condition had been obtained by a doctor prior to the execution of the impugned measure. Nor had he been given any medical care and supervision in prison afterwards.", "61. The applicant also stressed that he had sustained bodily injury, notably to his stomach, as was proved by a gastroscopy that had been performed in the prison hospital. Furthermore, he had been subjected to intense physical and mental suffering during the process of the administration of the emetics and by the chemical effects of the substances concerned.", "2. The Government", "62. According to the Government, the forcible administration of emetics entailed merely negligible risks to health. Ipecacuanha syrup was not a dangerous substance. In fact, it was given to children who had been poisoned. The introduction of a very flexible tube through the applicant ’ s nose had not put him at risk, even though he had resisted the procedure. The injection of apomorphine had not been dangerous either. The side effects and dangers described by the applicant could only be caused by chronic abuse or misuse of the emetics in question. The fact that two suspected drug dealers had died following the forcible administration of emetics in Hamburg and Bremen did not warrant the conclusion that the measure in general posed health risks. The method had been used on numerous occasions without giving rise to complications. The authorities resorted to the administration of emetics in those Länder where drug trafficking was a serious problem. In the vast majority of cases suspects chose to swallow the emetics after being informed that force would be used if they refused to do so. In the Hamburg case the defendant had suffered from an undetected heart condition and would have been equally at risk if he had resisted a different kind of enforcement measure. In the Bremen case the possibility that the defendant was poisoned by the drugs he had swallowed could not be excluded.", "63. The Government pointed out that there had been a real, immediate risk that the drug bubble, which had not been packaged for long-term transport inside the body, would leak and poison the applicant. Even though the emetics had been administered primarily to obtain evidence rather than for medical reasons, the removal of the drugs from the applicant ’ s stomach could still be considered to be required on medical grounds. It was part of the State ’ s positive obligation to protect the applicant by provoking the regurgitation of the drugs. Awaiting the natural excretion of the drugs would not have been as effective a method of investigation or any less humiliating and may, in fact, have posed risks to his health. It was significant in this connection that the administration of emetics to a juvenile was only considered an option if he or she was suspected of selling drugs on a commercial basis.", "64. In the Government ’ s view, the impugned measure had not gone beyond what had been necessary to secure evidence of the commission of a drugs offence. The applicant had been administered harmless emetics in a hospital by a doctor acting lege artis. Such a measure could not be considered humiliating in the circumstances.", "65. The Government further maintained that the emetics were administered to the applicant only after an anamnesis had been obtained by a doctor at the hospital. The same doctor had duly supervised the administration of the emetics to the applicant.", "66. The Government stressed that there was no evidence that the applicant had suffered any injuries or lasting damage as a result of the administration of the emetics. He had merely been tired for several hours after the execution of the measure, either because of the effects of the apomorphine or because of the resistance he had put up. In the proceedings before the Court the applicant had claimed for the first time that he had suffered further damage to his health. However, he had not produced any documentary evidence to support his allegations.", "B. The Court ’ s assessment", "1. Relevant principles", "67. According to the Court ’ s well-established case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, inter alia, Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII; Mouisel v. France, no. 67263/01, § 37, ECHR 2002-IX; and Naumenko v. Ukraine, no. 42023/98, § 108, 10 February 2004). Allegations of ill-treatment must be supported by appropriate evidence (see, mutatis mutandis, Klaas v. Germany, 22 September 1993, § 30, Series A no. 269). To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, 18 January 1978, § 161 in fine, Series A no. 25, and Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000-IV ).", "68. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering (see Labita, cited above, § 120). Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance (see Hurtado v. Switzerland, 28 January 1994, opinion of the Commission, § 67, Series A no. 280 ), or when it was such as to drive the victim to act against his will or conscience (see, for example, Denmark, Norway, Sweden and the Netherlands v. Greece ( the “ Greek case ”), nos. 3321/67, 3322/67, 3323/67 and 3344/67, Commission ’ s report of 5 November 1969, Yearbook 12, p. 186, and Keenan v. the United Kingdom, no. 27229/95, § 110, ECHR 2001-III). Furthermore, in considering whether treatment is “degrading ” within the meaning of Article 3, one of the factors which the Court will take into account is the question whether its object was to humiliate and debase the person concerned, although the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 ( see Raninen v. Finland, 16 December 1997, § 55, Reports of Judgments and Decisions 1997 ‑ VIII; Peers v. Greece, no. 28524/95, §§ 68 and 74, ECHR 2001-III; and Price, cited above, § 24 ). In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see Labita, cited above, § 120 ).", "69. With respect to medical interventions to which a detained person is subjected against his or her will, Article 3 of the Convention imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance. The persons concerned nevertheless remain under the protection of Article 3, whose requirements permit of no derogation ( Mouisel, cited above, § 40, and Naumenko, cited above, § 112). A measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading (see, in particular, Herczegfalvy v. Austria, 24 September 1992, § 82, Series A no. 244, and Naumenko, cited above, § 112 ). This can be said, for instance, about force ‑ feeding that is aimed at saving the life of a particular detainee who consciously refuses to take food. The Court must nevertheless satisfy itself that a medical necessity has been convincingly shown to exist and that procedural guarantees for the decision, for example to force-feed, exist and are complied with ( see Nevmerzhitsky v. Ukraine, no. 54825/00, § 94, ECHR 2005-II ).", "70. Even where it is not motivated by reasons of medical necessity, Articles 3 and 8 of the Convention do not as such prohibit recourse to a medical procedure in defiance of the will of a suspect in order to obtain from him evidence of his involvement in the commission of a criminal offence. Thus, the Convention institutions have found on several occasions that the taking of blood or saliva samples against a suspect ’ s will in order to investigate an offence did not breach these Articles in the circumstances of the cases examined by them (see, inter alia, X v. the Netherlands, no. 82 39/78, Commission decision of 4 December 1 978, Decisions and Reports (DR) 16, pp. 187- 89, and Schmidt v. Germany (dec.), no. 32352/02, 5 January 2006).", "71. However, any recourse to a forcible medical intervention in order to obtain evidence of a crime must be convincingly justified on the facts of a particular case. This is especially true where the procedure is intended to retrieve from inside the individual ’ s body real evidence of the very crime of which he is suspected. The particularly intrusive nature of such an act requires a strict scrutiny of all the surrounding circumstances. In this connection, due regard must be had to the seriousness of the offence in issue. The authorities must also demonstrate that they took into consideration alternative methods of recovering the evidence. Furthermore, the procedure must not entail any risk of lasting detriment to a suspect ’ s health (see, mutatis mutandis, Nevmerzhitsky, cited above, §§ 94 and 97, and Schmidt, cited above ).", "72. Moreover, as with interventions carried out for therapeutic purposes, the manner in which a person is subjected to a forcible medical procedure in order to retrieve evidence from his body must not exceed the minimum level of severity prescribed by the Court ’ s case - law on Article 3 of the Convention. In particular, account has to be taken of whether the person concerned experienced serious physical pain or suffering as a result of the forcible medical intervention (see Peters v. the Netherlands, no. 211 32/93, Commission decision of 6 April 1994, DR 77-B; Schmidt, cited above; and Nevmerzhitsky, cited above, § § 94 and 97).", "73. Another material consideration in such cases is whether the forcible medical procedure was ordered and administered by medical doctors and whether the person concerned was placed under constant medical supervision (see, for example, Ilijkov v. Bulgaria, no. 3397 7/96, Commission decision of 20 October 1997, unreported ).", "74. A further relevant factor is whether the forcible medical intervention resulted in any aggravation of his or her state of health and had lasting consequences for his or her health (see Ilijkov, cited above, and, mutatis mutandis, Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004 ).", "2. Application of those principles to the present case", "75. At the outset the Court notes that in the Government ’ s view the removal of the drugs from the applicant ’ s stomach by the administration of emetics could be considered to be required on medical grounds, as he risked death through poisoning. However, it is to be observed that the domestic courts all accepted that, when ordering the administration of emetics, the authorities had acted on the basis of Article 81a of the Code of Criminal Procedure. This provision entitles the prosecuting authorities to order a bodily intrusion to be effected by a doctor without the suspect ’ s consent in order to obtain evidence, provided that there is no risk of damage to the suspect ’ s health. However, Article 81a does not cover measures taken to avert an imminent danger to a person ’ s health. Furthermore, it is undisputed that the emetics were administered in the absence of any prior assessment of the dangers involved in leaving the drug bubble in the applicant ’ s body. The Government also stated that emetics are never administered to juvenile dealers unless they are suspected of selling drugs on a commercial basis. Juvenile dealers are, however, in no less need of medical treatment than adults. Adult dealers, for their part, run the same risks to their health as juvenile dealers when administered emetics. Consequently, the Court is not satisfied that the prosecuting authorities ’ decision to order the impugned measure was based on and required by medical reasons, that is, the need to protect the applicant ’ s health. Instead, it was aimed at securing evidence of a drugs offence.", "76. This finding does not by itself warrant the conclusion that the impugned intervention contravenes Article 3. As noted above ( see paragraph 70 above ), the Court has found on several occasions that the Convention does not, in principle, prohibit recourse to a forcible medical intervention that will assist in the investigation of an offence. However, any interference with a person ’ s physical integrity carried out with the aim of obtaining evidence must be the subject of rigorous scrutiny, with the following factors being of particular importance : the extent to which forcible medical intervention was necessary to obtain the evidence, the health risks for the suspect, the manner in which the procedure was carried out and the physical pain and mental suffering it caused, the degree of medical supervision available and the effects on the suspect ’ s health ( compare and contrast also the criteria established by the United States courts in similar cases – see paragraphs 5 1 -5 2 above ). In the light of all the circumstances of the individual case, the intervention must not attain the minimum level of severity that would bring it within the scope of Article 3. The Court will now examine each of these elements in turn.", "77. As regards the extent to which the forcible medical intervention was necessary to obtain the evidence, the Court notes that drug trafficking is a serious offence. It is acutely aware of the problem confronting Contracting States in their efforts to combat the harm caused to their societies through the supply of drugs (see, in particular, D. v. the United Kingdom, 2 May 1997, § 46, Reports 1997-III). However, in the present case it was clear before the impugned measure was ordered and implemented that the street dealer on whom it was imposed had been storing the drugs in his mouth and could not, therefore, have been offering drugs for sale on a large scale. This is reflected in the sentence ( a six-month suspended prison sentence and probation ), which is at the lower end of the range of possible sentences. The Court accepts that it was vital for the investigators to be able to determine the exact amount and quality of the drugs that were being offered for sale. However, it is not satisfied that the forcible administration of emetics was indispensable in the instant case to obtain the evidence. The prosecuting authorities could simply have waited for the drugs to pass through his system naturally. It is significant in this connection that many other member States of the Council of Europe use this method to investigate drugs offences.", "78. As regards the health risks attendant on the forcible medical intervention, the Court notes that it is a matter of dispute between the parties whether and to what extent the administration of ipecacuanha syrup through a tube introduced into the applicant ’ s nose and the injection of apomorphine posed a risk to his health. Whether or not such measures are dangerous is, as has been noted above ( see paragraphs 4 1 -4 4 ), also a matter of dispute among medical experts. While some consider it to be entirely harmless and in the suspect ’ s best interest, others argue that in particular the use of a nasogastric tube to administer emetics by force entails serious risks to life and limb and should therefore be prohibited. The Court is not satisfied that the forcible administration of emetics, a procedure that has to date resulted in the deaths of two people in the respondent State, entails merely negligible health risks. It also observes in this respect that the actual use of force – as opposed to the mere threat of force – has been found to be necessary in the respondent State in only a small proportion of the cases in which emetics have been administered. However, the fatalities occurred in cases in which force was used. Furthermore, the fact that in the majority of the German Länder and in at least a large majority of the other member States of the Council of Europe the authorities refrain from forcibly administering emetics does tend to suggest that such a measure is considered to pose health risks.", "79. As to the manner in which the emetics were administered, the Court notes that, after refusing to take the emetics voluntarily, the applicant was pinned down by four police officers, which shows that force verging on brutality was used against him. A tube was then fed through his nose into his stomach to overcome his physical and mental resistance. This must have caused him pain and anxiety. He was subjected to a further bodily intrusion against his will through the injection of another emetic. Account must also be taken of the applicant ’ s mental suffering while he waited for the emetics to take effect. During this time he was restrained and kept under observation by police officers and a doctor. Being forced to regurgitate under these conditions must have been humiliating for him. The Court does not share the Government ’ s view that waiting for the drugs to pass through his body naturally would have been just as humiliating. Although it would have entailed some invasion of privacy because of the need for supervision, such a measure nevertheless involves a natural bodily function and so causes considerably less interference with a person ’ s physical and mental integrity than forcible medical intervention (see, mutatis mutandis, Peters, cited above, and Schmidt, cited above ).", "80. As regards the medical supervision of the administration of the emetics, the Court notes that the impugned measure was carried out by a doctor in a hospital. In addition, after the measure was executed the applicant was examined by a doctor and declared fit for detention. However, it is a matter of dispute between the parties whether an anamnesis of the applicant was obtained prior to the execution of the measure in order to ascertain whether his health might be at risk if emetics were administered to him against his will. Since the applicant violently resisted the administration of the emetics and spoke no German and only broken English, the assumption must be that he was either unable or unwilling to answer any questions that were put by the doctor or to submit to a prior medical examination. The Government have not submitted any documentary or other evidence to show otherwise.", "81. As to the effects of the impugned measure on the suspect ’ s health, the Court notes that the parties disagree about whether the applicant has suffered any lasting damage to his health, notably to his stomach. Having regard to the material before it, it finds that it has not been established that either his treatment for stomach troubles in the prison hospital two and a half months after his arrest or any subsequent medical treatment he received was caused by the forcible administration of the emetics. This conclusion does not, of course, call into question the Court ’ s above finding that the forcible medical intervention was not without possible risk to the applicant ’ s health.", "82. Having regard to all the circumstances of the case, the Court finds that the impugned measure attained the minimum level of severity required to bring it within the scope of Article 3. The authorities subjected the applicant to a grave interference with his physical and mental integrity against his will. They forced him to regurgitate, not for therapeutic reasons, but in order to retrieve evidence they could equally have obtained by less intrusive methods. The manner in which the impugned measure was carried out was liable to arouse in the applicant feelings of fear, anguish and inferiority that were capable of humiliating and debasing him. Furthermore, the procedure entailed risks to the applicant ’ s health, not least because of the failure to obtain a proper anamnesis beforehand. Although this was not the intention, the measure was implemented in a way which caused the applicant both physical pain and mental suffering. He has therefore been subjected to inhuman and degrading treatment contrary to Article 3.", "83. Accordingly, the Court concludes that there has been a violation of Article 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "84. In the applicant ’ s submission, the administration of emetics by force also amounted to a disproportionate interference with his right to respect for his private life. He relied on Article 8 of the Convention, the relevant parts of which read :", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "85. The Government disagreed with that submission.", "86. The Court has already examined the applicant ’ s complaint concerning the forcible administration of emetics to him under Article 3 of the Convention. In view of its conclusion that there has been a violation of that provision, it finds that no separate issue arises under Article 8.", "III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "87. The applicant further considered that his right to a fair trial guaranteed by Article 6 of the Convention had been infringed by the use at his trial of the evidence obtained by the administration of the emetics. He claimed in particular that his right not to incriminate himself had been violated. The relevant part of Article 6 provides:", "“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”", "88. The Government contested this view.", "A. The parties ’ submissions", "1. The applicant", "89. In the applicant ’ s view, the administration of the emetics was illegal and violated Articles 3 and 8 of the Convention. As the evidence thereby obtained had formed the sole basis for his conviction, the criminal proceedings against him had been unfair.", "90. The applicant further argued that by forcing him against his will to produce evidence of an offence the authorities had violated his right not to incriminate himself and therefore his right to a fair trial. The principle against self-incrimination was not limited to statements obtained by coercion, but extended to objects so obtained. Moreover, the facts of his case were distinguishable from those in Saunders v. the United Kingdom (17 December 1996, Reports 1996-VI). Unlike the cases of blood or DNA testing referred to by the Court in its judgment in that case, the administration of emetics entailed the use of chemical substances that provoked an unnatural and involuntary activity of the body in order to obtain the evidence. His refusal to swallow the emetics was overcome by the use of considerable force. Therefore, the evidence that had been obtained had not existed independently of his will and he had been forced to contribute actively to his own conviction. The administration of emetics was comparable to the administration of a truth serum to obtain a confession, a practice which was expressly forbidden by Article 136a of the Code of Criminal Procedure. He referred to the judgment of the Frankfurt ( Main ) Court of Appeal of 11 October 1996 in support of his contention.", "2. The Government", "91. In the Government ’ s view, the administration of the emetics to the applicant had not contravened either Article 3 or Article 8 of the Convention. Consequently, the use of the drug bubble thereby obtained as evidence in the criminal proceedings against the applicant had not rendered his trial unfair. Determining the exact nature, amount and quality of the drugs being sold by the applicant had been a crucial factor in securing the applicant ’ s conviction and passing sentence.", "92. The Government further submitted that the right not to incriminate oneself only prohibited forcing a person to act against his or her will. Provoking an emesis was a mere reaction of the body which could not be controlled by a person ’ s will, and was therefore not prohibited by the principle against self-incrimination. The suspect was not thereby forced to contribute actively to securing the evidence. The accused ’ s initial refusal to take the emetics could not be relevant, as otherwise all investigative measures aimed at breaking a suspect ’ s will to conceal evidence, such as taking blood samples by force or searching houses, would be prohibited.", "93. Moreover, the Government argued that according to the Court ’ s judgment in Saunders, cited above, drugs obtained by the forcible administration of emetics were admissible in evidence. If it was possible to use bodily fluids or cells as evidence, then a fortiori it had to be possible to use objects which were not part of the defendant ’ s body. Furthermore, the administration of emetics, which the applicant merely had to endure passively, was not comparable to the administration of a truth serum as prohibited by Article 136 a of the Code of Criminal Procedure, which broke the suspect ’ s will not to testify.", "B. The Court ’ s assessment", "1. General principles established under the Court ’ s case-law", "94. The Court reiterates that its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no. 140, and Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports 1998-IV).", "95. It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the “unlawfulness” in question and, where violation of another Convention right is concerned, the nature of the violation found (see, inter alia, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 76, ECHR 2001-IX; and Allan v. the United Kingdom, no. 48539/99, § 42, ECHR 2002-IX).", "96. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence have been respected. It must be examined in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubts on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see, inter alia, Khan, cited above, §§ 35 and 37, and Allan, cited above, § 43 ).", "97. The general requirements of fairness contained in Article 6 apply to all criminal proceedings, irrespective of the type of offence in issue. Nevertheless, when determining whether the proceedings as a whole have been fair the weight of the public interest in the investigation and punishment of the particular offence in issue may be taken into consideration and be weighed against the individual interest that the evidence against him be gathered lawfully. However, public interest concerns cannot justify measures which extinguish the very essence of an applicant ’ s defence rights, including the privilege against self-incrimination guaranteed by Article 6 of the Convention (see, mutatis mutandis, Heaney and McGuinness v. Ireland, no. 34720/97, § § 57-58, ECHR 2000-XII ).", "98. As regards, in particular, the examination of the nature of the Convention violation found the Court observes that notably in the cases of Khan (cited above, §§ 25-28) and P.G. and J.H. v. the United Kingdom (cited above, §§ 37-38) it has found the use of covert listening devices to be in breach of Article 8 since recourse to such devices lacked a legal basis in domestic law and the interferences with those applicants ’ right to respect for private life were not “ in accordance with the law ”. Nonetheless, the admission in evidence of information obtained thereby did not in the circumstances of the cases conflict with the requirements of fairness guaranteed by Article 6 § 1.", "99. However, different considerations apply to evidence recovered by a measure found to violate Article 3. An issue may arise under Article 6 § 1 in respect of evidence obtained in violation of Article 3 of the Convention, even if the admission of such evidence was not decisive in securing the conviction (see İçöz v. Turkey (dec.), no. 54919/00, 9 January 2003, and Koç v. Turkey (dec.), no. 32580/96, 23 September 2003 ). The Court reiterates in this connection that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim ’ s conduct. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see, inter alia, Chahal v. the United Kingdom, 15 November 1996, § 79, Reports 1996-V, and Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V).", "100. As regards the use of evidence obtained in breach of the right to silence and the privilege against self-incrimination, the Court observes that these are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, inter alia, Saunders, cited above, § 68; Heaney and McGuinness, cited above, § 40; J.B. v. Switzerland, no. 31827/96, § 64, ECHR 2001-III; and Allan, cited above, § 44).", "101. In examining whether a procedure has extinguished the very essence of the privilege against self-incrimination, the Court will have regard, in particular, to the following elements: the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put (see, for example, Tirado Ortiz and Lozano Martin v. Spain (dec.), no. 43486/98, ECHR 1999 ‑ V; Heaney and McGuinness, cited above, §§ 51-55; and Allan, cited above, § 44).", "102. The Court has consistently held, however, that the right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood, urine, hair or voice samples and bodily tissue for the purpose of DNA testing (see Saunders, cited above, § 69; Choudhary v. the United Kingdom (dec.), no. 40084/98, 4 May 1999; J.B. v. Switzerland, cited above, § 68; and P.G. and J.H. v. the United Kingdom, cited above, § 80).", "2. Application of those principles to the present case", "103. In determining whether in the light of these principles the criminal proceedings against the applicant can be considered fair, the Court notes at the outset that the evidence secured through the administration of emetics to the applicant was not obtained “unlawfully” in breach of domestic law. It recalls in this connection that the national courts found that Article 81a of the Code of Criminal Procedure permitted the impugned measure.", "104. The Court held above that the applicant was subjected to inhuman and degrading treatment contrary to the substantive provisions of Article 3 when emetics were administered to him in order to force him to regurgitate the drugs he had swallowed. The evidence used in the criminal proceedings against the applicant was thus obtained as a direct result of a violation of one of the core rights guaranteed by the Convention.", "105. As noted above, the use of evidence obtained in violation of Article 3 in criminal proceedings raises serious issues as to the fairness of such proceedings. The Court has not found in the instant case that the applicant was subjected to torture. In its view, incriminating evidence – whether in the form of a confession or real evidence – obtained as a result of acts of violence or brutality or other forms of treatment which can be characterised as torture – should never be relied on as proof of the victim ’ s guilt, irrespective of its probative value. Any other conclusion would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe or, as it was so well put in the United States Supreme Court ’ s judgment in the Rochin case (see paragraph 50 above), to “ afford brutality the cloak of law ”. It notes in this connection that Article 15 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides that statements which are established to have been made as a result of torture shall not be used in evidence in proceedings against the victim of torture.", "106. Although the treatment to which the applicant was subjected did not attract the special stigma reserved to acts of torture, it did attain in the circumstances the minimum level of severity covered by the ambit of the Article 3 prohibition. It cannot be excluded that on the facts of a particular case the use of evidence obtained by intentional acts of ill-treatment not amounting to torture will render the trial against the victim unfair, irrespective of the seriousness of the offence allegedly committed, the weight attached to the evidence and the opportunities which the victim had to challenge its admission and use at his trial.", "107. In the present case, the general question whether the use of evidence obtained by an act qualified as inhuman and degrading treatment automatically renders a trial unfair can be left open. The Court notes that, even if it was not the intention of the authorities to inflict pain and suffering on the applicant, the evidence was obtained by a measure which breached one of the core rights guaranteed by the Convention. Furthermore, it was common ground between the parties that the drugs obtained by the impugned measure were the decisive element in securing the applicant ’ s conviction. It is true that, as was equally uncontested, the applicant was given the opportunity, which he took, of challenging the use of the drugs obtained by the impugned measure. However, any discretion on the part of the national courts to exclude that evidence could not come into play as they considered the administration of emetics to be authorised by domestic law. Moreover, the public interest in securing the applicant ’ s conviction cannot be considered to have been of such weight as to warrant allowing that evidence to be used at the trial. As noted above, the measure targeted a street dealer selling drugs on a relatively small scale who was eventually given a six-month suspended prison sentence and probation.", "108. In these circumstances, the Court finds that the use in evidence of the drugs obtained by the forcible administration of emetics to the applicant rendered his trial as a whole unfair.", "109. This finding is of itself a sufficient basis on which to conclude that the applicant was denied a fair trial in breach of Article 6. However, the Court considers it appropriate to address also the applicant ’ s argument that the manner in which the evidence was obtained and the use made of it undermined his right not to incriminate himself. To that end, it will examine, firstly, whether this particular right was relevant to the circumstances of the applicant ’ s case and, in the affirmative, whether it has been breached.", "110. As regards the applicability of the principle against self - incrimination in this case, the Court observes that the use at the trial of “real” evidence – as opposed to a confession – obtained by forcible interference with the applicant ’ s bodily integrity is in issue. It notes that the privilege against self-incrimination is commonly understood in the Contracting States and elsewhere to be primarily concerned with respecting the will of the defendant to remain silent in the face of questioning and not to be compelled to provide a statement.", "111. However, the Court has on occasion given the principle of self - incrimination as protected under Article 6 § 1 a broader meaning so as to encompass cases in which coercion to hand over real evidence to the authorities was in issue. In Funke v. France ( 25 February 1993, § 44, Series A no. 256-A ), for instance, the Court found that an attempt to compel the applicant to disclose documents, and thereby to provide evidence of offences he had allegedly committed, violated his right not to incriminate himself. Similarly, in J.B. v. Switzerland (cited above, §§ 63-71) the Court considered the State authorities ’ attempt to compel the applicant to submit documents which might have provided information about tax evasion to be in breach of the principle against self-incrimination (in its broader sense).", "112. In Saunders, the Court considered that the principle against self-incrimination did not cover “material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing” (cited above, § 69).", "113. In the Court ’ s view, the evidence in issue in the present case, namely, drugs hidden in the applicant ’ s body which were obtained by the forcible administration of emetics, could be considered to fall into the category of material having an existence independent of the will of the suspect, the use of which is generally not prohibited in criminal proceedings. However, there are several elements which distinguish the present case from the examples listed in Saunders. Firstly, as with the impugned measures in Funke and J.B. v. Switzerland, the administration of emetics was used to retrieve real evidence in defiance of the applicant ’ s will. Conversely, the bodily material listed in Saunders concerned material obtained by coercion for forensic examination with a view to detecting, for example, the presence of alcohol or drugs.", "114. Secondly, the degree of force used in the present case differs significantly from the degree of compulsion normally required to obtain the types of material referred to in the Saunders case. To obtain such material, a defendant is requested to endure passively a minor interference with his physical integrity (for example when blood or hair samples or bodily tissue are taken). Even if the defendant ’ s active participation is required, it can be seen from Saunders that this concerns material produced by the normal functioning of the body (such as, for example, breath, urine or voice samples). In contrast, compelling the applicant in the instant case to regurgitate the evidence sought required the forcible introduction of a tube through his nose and the administration of a substance so as to provoke a pathological reaction in his body. As noted earlier, this procedure was not without risk to the applicant ’ s health.", "115. Thirdly, the evidence in the present case was obtained by means of a procedure which violated Article 3. The procedure used in the applicant ’ s case is in striking contrast to procedures for obtaining, for example, a breath test or a blood sample. Procedures of the latter kind do not, unless in exceptional circumstances, attain the minimum level of severity to contravene Article 3. Moreover, though constituting an interference with the suspect ’ s right to respect for private life, these procedures are, in general, justified under Article 8 § 2 as being necessary for the prevention of criminal offences (see, inter alia, Tirado Ortiz and Lozano Martin, cited above).", "116. Consequently, the principle against self-incrimination is applicable to the present proceedings.", "117. In order to determine whether the applicant ’ s right not to incriminate himself has been violated, the Court will have regard, in turn, to the following factors: the nature and degree of compulsion used to obtain the evidence; the weight of the public interest in the investigation and punishment of the offence in issue; the existence of any relevant safeguards in the procedure; and the use to which any material so obtained is put.", "118. As regards the nature and degree of compulsion used to obtain the evidence in the present case, the Court reiterates that forcing the applicant to regurgitate the drugs significantly interfered with his physical and mental integrity. The applicant had to be immobilised by four policemen, a tube was fed through his nose into his stomach and chemical substances were administered to him in order to force him to surrender up the evidence sought by means of a pathological reaction of his body. This treatment was found to be inhuman and degrading and therefore to violate Article 3.", "119. As regards the weight of the public interest in using the evidence to secure the applicant ’ s conviction, the Court observes that, as noted above, the impugned measure targeted a street dealer who was offering drugs for sale on a comparatively small scale and who was eventually given a six- month suspended prison sentence and probation. In the circumstances of the instant case, the public interest in securing the applicant ’ s conviction could not justify recourse to such a grave interference with his physical and mental integrity.", "120. Turning to the existence of relevant safeguards in the procedure, the Court observes that Article 81a of the Code of Criminal Procedure prescribed that bodily intrusions had to be carried out lege artis by a doctor in a hospital and only if there was no risk of damage to the defendant ’ s health. Although it can be said that domestic law did in general provide for safeguards against arbitrary or improper use of the measure, the applicant, relying on his right to remain silent, refused to submit to a prior medical examination. He could only communicate in broken English, which meant that he was subjected to the procedure without a full examination of his physical aptitude to withstand it.", "121. As to the use to which the evidence obtained was put, the Court reiterates that the drugs obtained following the administration of the emetics were the decisive evidence in his conviction for drug trafficking. It is true that the applicant was given and took the opportunity to oppose the use at his trial of this evidence. However, and as noted above, any possible discretion the national courts may have had to exclude the evidence could not come into play, as they considered the impugned treatment to be authorised by national law.", "122. Having regard to the foregoing, the Court would also have been prepared to find that allowing the use at the applicant ’ s trial of evidence obtained by the forcible administration of emetics infringed his right not to incriminate himself and therefore rendered his trial as a whole unfair.", "123. Accordingly, there has been a violation of Article 6 § 1 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "124. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "125. The applicant claimed compensation for pecuniary and non ‑ pecuniary damage and the reimbursement of his costs and expenses.", "A. Damage", "126. The applicant claimed a total of 51.12 euros (EUR) in pecuniary damage, this being the amount he had forfeited as a result of the judgment of the Wuppertal Regional Court. He also sought compensation for non ‑ pecuniary damage. He made reference to his physical injuries and the mental distress and feelings of helplessness he had suffered as a result of the lengthy administration of emetics, which he considered to have been life ‑ threatening and obviously illegal. Furthermore, he had been remanded in custody for five months before being convicted and given a six- month suspended prison sentence and probation because of this illegal measure. He claimed a minimum amount of EUR 30,000 under this head.", "127. The Government did not comment on the applicant ’ s claim for pecuniary damage, but maintained that the sum claimed by him for non ‑ pecuniary damage was excessive. As regards the damage allegedly sustained due to the applicant ’ s pre-trial detention, his prosecution and conviction, an award of compensation was not required since full reparation could be made under German law. Should the Court find violations of the applicant ’ s Convention rights, he would be entitled to request the reopening of the criminal proceedings and could, if acquitted, claim damages, notably for the period he had spent in custody.", "128. As regards the pecuniary damage claimed, the Court notes that the Wuppertal Regional Court ordered the forfeiture of 100 German marks (approximately EUR 51.12), this being the proceeds of the offence of which he had been found guilty. However, it cannot speculate as to what the outcome of the proceedings might have been if the violation of the Convention had not occurred (see, inter alia, Schmautzer v. Austria, 23 October 1995, § 44, Series A no. 328 -A, and Findlay v. the United Kingdom, 25 February 1997, § 85, Reports 1997-I ). The drug bubble obtained by the impugned measure was a decisive factor in the applicant ’ s conviction. However, since that evidence could have been obtained without any breach of Article 3 ( by waiting for the drug bubble to be passed naturally ) and, therefore, used without any breach of Article 6, the Court finds that there is insufficient proof of a causal connection between the violation of those provisions and the pecuniary damage sustained by the applicant. There is, therefore, no ground for an award under this head.", "129. As to the non-pecuniary damage claimed, the Court notes that according to the Government, it would be possible for the applicant to seek compensation in the national courts if he was acquitted following a reopening of the criminal proceedings against him. It considers, however, that if, having exhausted domestic remedies without success before complaining in Strasbourg of a violation of his rights, then doing so a second time, successfully, to secure the setting aside of the conviction, and finally going through a new trial, the applicant was required to exhaust domestic remedies a third time in order to be able to obtain just satisfaction from the Court, the total duration of the proceedings would hardly be consistent with the effective protection of human rights and would lead to a situation incompatible with the aim and object of the Convention (see, for example, Barberà, Messegué and Jabardo v. Spain ( Article 50), 13 June 1994, § 17, Series A no. 285-C, and Papamichalopoulos and Others v. Greece ( Article 50 ), 31 October 1995, § 40, Series A no. 330-B ). Consequently, it may make an award.", "130. Having regard to all the elements before it, the Court finds that the applicant suffered non-pecuniary damage in the form of pain and mental distress as a result of the treatment to which he was subjected to obtain the evidence that was later used against him at the trial. Ruling on an equitable basis, it therefore awards the applicant EUR 10,000 under this head.", "B. Costs and expenses", "131. The applicant claimed a total of EUR 5,868.88 for costs and expenses. These comprised the costs of legal representation before the Federal Constitutional Court in an amount of EUR 868.88, calculated pursuant to the Federal Regulation on Lawyers ’ Fees ( Bundesrechtsanwalts - gebührenordnung ). Furthermore, he claimed EUR 5,000 for costs incurred in the Convention proceedings. He did not submit any separate documentary evidence in support of his claims.", "132. The Government did not comment on this claim.", "133. According to the Court ’ s case-law, to be awarded costs and expenses the injured party must have incurred them in order to seek prevention or rectification of a violation of the Convention, to have the same established by the Court and to obtain redress therefor. It must also be shown that the costs were actually and necessarily incurred and are reasonable as to quantum (see, among other authorities, Nikolova v. Bulgaria [GC], no. 3 1195/96, § 79, ECHR 1999-II, and Venema v. the Netherlands, no. 35731/97, § 117, ECHR 2002-X ).", "134. In the present case, regard being had to the information in its possession and the above criteria, the Court is satisfied that both the costs of legal representation in the proceedings before the Federal Constitutional Court and in the Convention proceedings were incurred in order to establish and redress a violation of the applicant ’ s Convention rights. Having regard to its case-law and making its own assessment, the Court finds the amount claimed to be reasonable as to quantum. It therefore awards the applicant EUR 5,868.88, plus any value-added tax that may be chargeable.", "C. Default interest", "135. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1980 and lives in Püspökladány.", "7. On 6 March 2010 the applicant got into a fight in a car park in front of a nightclub in Püspökladány, apparently under the influence of alcohol and drugs. The incident was reported to Püspökladány police station.", "8. The applicant asserts that around 3 a.m. he and his girlfriend were sitting in his car, not in traffic, pulled over to the side of the road, when patrolling police officers approached them. According to the file produced in the subsequent criminal proceedings, the applicant refused to take a breathalyser test for alcohol. Following an identity check and a search, he was handcuffed and taken to Püspökladány police station to be held for questioning ( előállítás ), on suspicion of having committed an offence. According to the police reports, the police officers believed that he was under the influence of either alcohol or drugs.", "9. At the police station the applicant started to insult the police officers and was handcuffed again. According to the applicant, he was also placed in leg restraints, during which time he suffered injuries. He was then transported to the Püspökladány medical emergency service by four police officers for a blood and urine test.", "10. The applicant told a doctor that he was unable to urinate. According to the police reports, the applicant was under the influence of alcohol, “uncooperative, making the insertion of a catheter necessary”; he was also “violent and resisted the procedure”. Furthermore, “it was necessary to physically restrain him and have recourse to force” to obtain the necessary urine sample.", "11. The doctor on duty proceeded with the applicant ’ s catheterisation while the latter ’ s arms were handcuffed. Afterwards, the doctor cut the applicant ’ s shirt and took a blood sample. He also issued a medical report on the applicant ’ s injuries.", "12. On 22 April 2010 the applicant was fined 50,000 Hungarian forints (HUF – approximately 180 euros (EUR)) for the minor offence of failing to comply with lawful police measures. That decision was subsequently overturned, and the proceedings were discontinued by a decision of the Püspökladány District Court of 22 April 2011. The Püspökladány District Court established that the police measure could not be held to be lawful, since the medical intervention had been carried out without the applicant ’ s written consent, required under the Health Care Act.", "13. Furthermore, in a judgment of 15 November 2011 the Püspökladány District Court found the applicant guilty of disorderly conduct, drink - driving and violence against a representative of a public authority. He was sentenced to two years and three months ’ imprisonment. The applicant challenged the evidence obtained through the urine test, and the court found it established that he had consented to the use of the catheter, as evidenced by five or six witness testimonies, and he had only withdrawn his consent upon realising that the intervention was painful. The judgment stated that, irrespective of the result of urine test, it was clear that the applicant had been under the influence of alcohol at the material time, as observed by the police officers, the witnesses and the doctor on duty. On appeal, the applicant ’ s sentence was reduced to one year and nine months ’ imprisonment suspended for five years by the Debrecen Regional Court.", "14. On 11 March 2010 the applicant lodged a criminal complaint against the police officers involved in the incident, alleging that they had interrogated him by subjecting him to ill-treatment – beating him, using handcuffs and leg restraints, and forcibly taking blood samples from him and urine samples by catheterisation.", "15. On 26 November 2010 the investigations division of the Debrecen public prosecutor ’ s office discontinued the criminal proceedings for lack of any conclusive evidence. As to the urinary catheterisation, relying on the witness testimonies of the doctor on duty, a nurse, a driver who was on duty at the medical service at the time and the police officers, the prosecutor ’ s office concluded that the applicant had voluntarily agreed to the sample being taken by catheterisation. Referring to an expert opinion produced by the Medical Expert Division of the Forensic Expert and Research Institute, the prosecutor ’ s office found that urinary catheterisation did not amount to a surgical intervention. In any event, the use of physical restraint had only been necessary as the applicant had become aggressive and tried to resist once the medical intervention had started.", "16. The applicant lodged a complaint against the decision, requesting that the investigation into the unlawful use of leg restraints and the catheterisation continue. By a decision of 10 January 2011 the Hajdú Bihar county chief public prosecutor ’ s office dismissed the applicant ’ s complaint, endorsing the findings of the first-instance authority.", "17. In a parallel procedure, on 16 March 2010 the applicant lodged a complaint with the Independent Police Complaints Board (“the Board”), the body responsible for inquiring into alleged violations of fundamental rights committed by the police, challenging the use of handcuffs and leg restraints, the fact that he had been held for questioning, his ill-treatment at the hands of the police officers, and the forcible taking of urine and blood samples. The Board inquired with the doctor on duty about the incident, who stated in his reply that the applicant had agreed to the insertion of a catheter before a number of witnesses, and that he had interpreted the fact that the applicant had removed his clothes as consent to the procedure. According to the doctor, the applicant had been cooperative and had only turned violent at a later stage. According to the facts established by the Board, since the applicant had been unable to produce the urine sample, the police officers had asked the doctor on duty to carry out the catheterisation.", "18. The Board commissioned an expert opinion from the chief physician of the Budapest Institute of Forensic Medicine, who stated in an opinion of 4 June 2010 that, although some medical institutions required written consent for catheterisation, this was not the policy of the majority of institutions. In his opinion, such a procedure was not general practice, and recourse to an “emergency” intervention was professionally unreasonable. In any event, according to professional guidelines, if a urine test could not be carried out, a blood test was sufficient.", "19. In an opinion of 4 August 2010 the Board found that the use of handcuffs had been legitimate and that the ill-treatment alleged could not be established. However, as regards the catheterisation and the use of leg restraints, the Board concluded that those measures had infringed the applicant ’ s right to dignity, physical integrity, health and a fair trial. It forwarded its opinion to the Commander of the National Police Service.", "20. Following the adoption of the Board ’ s opinion, the applicant ’ s complaint was examined by the Commander of the National Police Service under section 92(1) of Act no. XXXIV of 1994 on the Police ( “the Police Act ” ), with a view to establishing whether the police measure had been unlawful. It was dismissed on 26 October 2010. The decision established that the applicant had informed the doctor on duty that he had been unable to produce a urine sample and that he would not drink water in order to be able to do it later. He had behaved aggressively and had been uncooperative, but had nonetheless agreed to the catheterisation before witnesses by loudly screaming “do the catheterisation”, and had undressed voluntarily. He had only been restrained to prevent him from causing injuries to himself or the doctor, once the procedure had started. Moreover, the forcible taking of a sample was justified in situations where there were grounds to believe that the driver of a vehicle was under the influence of alcohol or drugs.", "21. The applicant sought judicial review of the decision, arguing that he had not been heard during the proceedings and the facts had been established solely on the basis of the testimonies of the police officers and the medical staff. He disputed the finding that he had voluntarily undressed for his catheterisation. He emphasised that he had submitted a medical report substantiating his allegations about the use of leg restraints, which had been disregarded by the Commander of the National Police Service.", "22. On 7 February 2012 the Budapest Regional Administrative and Labour Court dismissed his action. The court emphasised that, according to the medical expert opinion commissioned by the Board, there was no clear medical approach to catheterisation and the question of whether it was an invasive or non-invasive intervention, thus hospital practice differed in relation to the necessity of consent. If an examination was considered invasive, oral consent was not sufficient. In any case, the procedure could always be stopped. The medical expert also stated that, in comparison to a blood test, a urine test was not a precise method to establish whether a person was under the influence of drugs. Furthermore, catheterisation was a procedure that could be interrupted at any time.", "23. The court concluded that the procedure had been in compliance with the provisions of the Police Act setting out that a police officer could oblige a driver to provide a sample of breath, blood and urine for the purposes of a test. The court also indicated that the question as to whether consent was required for catheterisation, and whether the procedure should or should not have been carried out against the applicant ’ s will, was outside the scope of its examination. It had been up to the doctor and not the police officers to decide on the method by which to take a sample. The court also took note of several witness testimonies and concluded that the use of leg restraints could not be established in the applicant ’ s case.", "24. The applicant lodged a petition for review with the Kúria, arguing that the Commander of the National Police Service had failed to establish the facts of the case. In particular, the service had not commissioned a medical report capable of substantiating the use of leg restraints, had not heard him in person, and had drawn erroneous conclusions as regards his consent to the catheterisation. The applicant further submitted that the first-instance court had erred in classifying the medical examination, since it had been neither obligatory under the provisions of the Police Act, nor reasonable or proportionate according to medical standards.", "25. The Kúria upheld the first-instance judgment on 25 March 2014, endorsing its reasoning. The judgment was served on the applicant on 11 July 2014." ]

[ "II. RELEVANT DOMESTIC LAW", "26. Act no. XXXIV of 1994 on the Police provides as follows:", "Section 15", "Principle of proportionality", "“(1) A police measure shall not cause harm which is obviously disproportionate to its legitimate aim.", "(2) In the event that there are more appropriate police measures ... available, [the police] should choose the one which, while guaranteeing results, causes the least restriction, injury or harm to the person concerned.", "... ”", "Section 33", "“ ...", "( 2 ) The police [have the power to] hold for questioning before the relevant authority", "...", "( f) any person who is suspected of having committed a crime.", "... ”", "Section 44", "“ (1) A police officer may, while fulfilling his or her role of managing traffic,", "...", "( c) ... oblige the driver of a vehicle to give blood, urine or any other sample not classified as a surgical intervention, with the assistance of medical services, in the event that there is a suspicion that the driver has committed a criminal offence, a minor offence, or any traffic-related minor offence punishable by an administrative fine under the influence of substances negatively influencing driving skills or owing to alcohol consumption.", "... ”", "Section 92", "“ Any person whose fundamental right has been infringed by a violation of [police] obligations, by a police measure, by a failure to take a police measure, or by a coercive measure (hereinafter referred to as a ‘ measure ’ ) can, according to his or her choice :", "( a) lodge a complaint with the police body which has taken the measure;", "( b) request that – following an examination by the Independent Police Board – his complaint be examined, depending on the police body concerned:", "( ba ) by the Commander of the National Police Service;", "... ”", "Section 93/A", "“ ...", "(6) ... The Independent Police Complaints Board transfers its opinion to the Commander of the National Police Service ...", "(7) The Commander of the National Police Service shall decide on the complaint in the course of an administrative procedure ( közigazgatási hatósági eljárás ) within thirty days of receiving the opinion. If the ... decision of the Commander of the National Police Service differs from the opinion of the Board, he or she should provide reasons for it.", "...", "(9) No ordinary appeal lies against the decision of the Commander of the National Police Service in the course of the administrative procedure, but judicial review [of the decision] can be directly requested.", "... ”", "27. The Code of Civil Procedure (Act no. III of 1952) provided at the material time as follows:", "Administrative Actions", "Article 339", "Article 339/B", "“ An administrative decision rendered on a discretionary basis shall be deemed lawful if the administrative body [which has made the decision] has appropriately ascertained the relevant facts of the case [and] complied with the relevant rules of procedure, [and if] the discretionary points can be identified and the justification for the decision can be linked to the assessment of the evidence. ”", "28. Act no. CLIV of 1997 on Health Care provides as follows:", "Section 3", "Definitions", "“ ( m) [ an ] invasive intervention: a physical intervention penetrating the patient ’ s body through the skin, mucous membrane or an orifice, excluding interventions which pose negligible risks to the patient from a professional point of view;", "... ”", "Section 10", "“(1) The patient ’ s human dignity shall be respected in the course of health care.", "(2) Unless otherwise provided for by this Act, only the interventions necessary for the care of the patient may be performed.", "(3) In the course of health care, a patient may be restricted in exercising his rights only for the period of time justified by his state of health, and to the extent and in the way provided for by law.", "(4) In the course of health care, the patient ’ s personal freedom may be restricted by physical, chemical, biological or psychological methods or procedures exclusively in the event of an emergency, or in the interest of protecting the life, physical safety and health of the patient or others. Restriction of the patient may not be of a punitive nature, and may only last as long as the reason for ordering the restriction exists.", "... ”", "Section 15", "Right to self-determination", "“ (1) The patient shall have a right to self-determination, which may only be restricted in the cases and ways defined by law.", "(2) Within the framework of exercising the right to self-determination, the patient is free to decide whether he wishes to use health - care services, and which procedures to consent to or refuse in the course of using such services, taking into account the restrictions set out in section 20.", "(3) The patient shall have a right to be involved in the decisions concerning his examination and treatment. Apart from the exceptions defined in this Act, the performance of any procedure relating to health care shall be subject to the patient ’ s consent thereto, granted on the basis of appropriate information, free from deceit, threats and pressure (hereinafter referred to as ‘ informed consent ’ ).", "(4) A patient may give his consent as referred to in subsection (3) verbally, in writing or through implied behaviour, unless otherwise provided for by this Act.", "(5) Invasive procedures ... shall be subject to the patient ’ s written consent, or, if the patient is not capable of [giving] this, to his declaration made verbally or in some other way in the joint presence of two witnesses.", "(6) A patient may, at any time, withdraw his consent to the performance of a procedure. If, however, the patient withdraws his consent without good cause, he may be obliged to reimburse any justified costs incurred as a result of such a withdrawal. ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "29. The applicant claimed that he had been subjected to inhuman and degrading treatment as a result of the forcible taking of a urine sample and that the investigation into his allegations of ill-treatment was inadequate. He relied on Article 3 Convention, which provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Admissibility", "1. The parties ’ submissions", "30. The Government submitted that the application was incompatible ratione materiae with the provisions of the Convention, since the impugned treatment did not reach the minimum threshold of severity required for Article 3 to come into play. In their view, this was illustrated by the fact that the applicant had not initiated substitute private prosecution proceedings to establish whether, as he alleged, the police officers had subjected him to ill-treatment.", "31. They also maintained that the applicant had not exhausted the remedies available to him in domestic law; namely, he should have pursued substitute private prosecution following the discontinuation of the criminal proceedings against the police officers (see paragraph 16 above), as those proceedings would have provided an adequate remedy in the circumstances of the present case. They argued that the Court ’ s interpretation in previous cases of substitute private prosecution as a separate set of proceedings was erroneous, since such proceedings should instead be classified as a complaint or appeal by an applicant within an existing criminal case.", "32. In the alternative, the Government requested that the Court declare this complaint inadmissible, since the applicant had failed to lodge his complaint within the six-month time-limit provided for in Article 35 § 1 of the Convention. They submitted that the six-month time - limit had started to run after the termination of the criminal proceedings initiated by the applicant (see paragraph 16 above).", "33. The applicant disagreed in general terms.", "2. The Court ’ s assessment", "(a) The Court ’ s jurisdiction ratione materiae", "34. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015 ). Any interference with human dignity strikes at the very essence of the Convention. For that reason any conduct by law-enforcement officers vis-à-vis an individual which diminishes human dignity constitutes a violation of Article 3 of the Convention. That applies in particular to their use of physical force against an individual where it is not made strictly necessary by his conduct, whatever the impact on the person in question (ibid, §§ 100-101).", "35. In the present case, the Court notes that the applicant was subjected to an invasive medical intervention in order to obtain evidence. It also notes that he was physically restrained by police officers in order to overcome his resistance. The Court considers that the intervention must, by its very nature, have given rise to feelings of insecurity, anguish and stress on the part of the applicant. It finds that that treatment, combined with the applicant ’ s feelings mentioned above, was sufficiently serious to attain the minimum level of severity required to bring it within the scope of Article 3, which is therefore applicable to the present case. The Government ’ s related objection of incompatibility ratione materiae must consequently be dismissed.", "(b) The six-month rule and exhaustion of domestic remedies", "36. In assessing whether an applicant has complied with Article 35 § 1 of the Convention, it is important to bear in mind that the requirements contained in that Article concerning the exhaustion of domestic remedies and the six-month period are closely interrelated. The pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six-month rule. It follows that if an applicant has recourse to a remedy which is doomed to failure from the outset, the decision on that appeal cannot be taken into account for the calculation of the six-month period (see Jeronovičs v. Latvia [GC], no. 44898/10, § 75, 5 July 2016, and the cases cited therein ).", "37. The Court notes that, in the present case, the applicant diligently explored the criminal avenue of redress by lodging a criminal complaint against the police officers allegedly responsible for the specific incident. The focus of the criminal proceedings was establishing whether or not the police officers had acted in breach of the Criminal Code, which prohibited forced interrogation.", "38. As regards the Government ’ s objection concerning the applicant ’ s failure to initiate substitute private prosecution proceedings following the termination of the investigation, the Court firstly notes that in a number of cases against Hungary it has rejected the Government ’ s argument that applicants should have recourse to substitute private prosecution proceedings (see, among others, R.B. v. Hungary, no. 64602/12, §§ 60-65, 12 April 2016, and Borbála Kiss v. Hungary, no. 59214/11, §§ 25-27, 26 June 2012 ). Furthermore, in the present case, the applicant lodged a criminal complaint against the presumed perpetrators and a further complaint against the discontinuation order obtained at first instance. Those proceedings were capable of leading to the identification and, if appropriate, punishment of those responsible. The Court is therefore satisfied that the applicant was not required to also pursue the matter by way of an appeal in the course of a substitute private prosecution concerning the same event, which would have had the same objective as his criminal complaint (see, mutatis mutandis, Borbála Kiss, cited above, § 26, 26 June 2012, and Matko v. Slovenia, no. 43393/98, § 95, 2 November 2006). The Government ’ s related objection must therefore be dismissed.", "39. It remains therefore to be examined whether the applicant ’ s unsuccessful attempts to establish the unlawfulness of the police measure in the course of administrative proceedings amounted to him pursuing unnecessary remedies, which would render his application out of time (see, for example, Prystavska v. Ukraine ( dec. ), no. 21287/02, 17 December 2002).", "40. In particular, the Court notes that parallel to the lodging of the criminal complaint, the applicant also initiated proceedings before the Board, and subsequent to the negative decision of the Commander of the National Police Service on the Board ’ s opinion, he requested judicial review of that decision. He lodged his application with the Court following the dismissal of his administrative action by the Kúria. Admittedly, in relation to this matter, the Court has held that in the area of unlawful use of force by State agents – and not mere fault, omission or negligence –, civil or administrative proceedings aimed solely at awarding damages, rather than ensuring the identification and punishment of those responsible, are not adequate and effective remedies capable of providing redress for complaints based on the substantive aspect of Articles 2 and 3 of the Convention (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 227, ECHR 2014 (extracts)).", "41. Nonetheless, the Court notes that in the present case, the domestic legislation provided for a specific complaint mechanism against allegedly unlawful police measures, under section 92 of the Police Act. The aim of the inquiry conducted by the Board and of the subsequent administrative proceedings was to establish whether the police measures in question had infringed the applicant ’ s fundamental rights. The applicant ’ s complaint to the Board, raising the substance of his complaint before this Court, was in fact successful to the extent that the Board objected to the action taken by the police. It was thus perfectly reasonable for the applicant to await the Kúria ’ s judgment reviewing the administrative decision which had dismissed the Board ’ s opinion.", "42. The Court notes in this respect that Article 35 § 1 cannot be interpreted in a manner which would require an applicant to lodge his complaint with the Court before his position in connection with the matter complained of has been finally settled at the domestic level ( see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 157, ECHR 2009).", "43. Furthermore, it cannot be said that the applicant deliberately tried to extend the time-limit set out in Article 35 § 1 by making use of inappropriate procedures which could offer him no effective redress for the complaint in issue under the Convention.", "44. Against the above background, the Court considers that in the circumstances of the present case, the running of the six-month time-limit should be calculated from 11 July 2014, the date on which the applicant was informed of the Kúria ’ s position. The present application was lodged on 14 September 2014, within the six-month time-limit provided for in Article 35 § 1 of the Convention. As a result, the Court rejects the Government ’ s related objection.", "45. The Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ arguments", "(a) The applicant", "46. The applicant submitted that the manner in which he had been forced to undergo the medical intervention had amounted to torture. The taking of the urine sample had been coercive, and he had never given his consent to the procedure.", "47. Even assuming that he had given his agreement before the catheterisation, he should have had the right to withdraw such consent, in accordance with the Health Care Act. He pointed out that, while it remained in dispute as to whether he had given his consent to the sample being taken, the domestic courts had established that this consent had been withdrawn once the intervention had started.", "48. Relying on the medical expert opinion, the applicant emphasised that, in accordance with medical practice, taking urine samples through catheterisation was highly risky in situations like the one he had been in. He also pointed out that, according to the expert opinion commissioned in the domestic proceedings, only blood samples would have constituted reliable evidence as to his alleged drug consumption. He also stressed that he had sustained a physical injury as a consequence of the intervention. There had been blood in his urine for weeks after the incident.", "49. The applicant also maintained that he had been in leg restraints during the intervention, and the witness testimonies to the contrary could not be regarded as unbiased.", "50. The applicant refuted the Government ’ s argument that the alleged shortcomings in the administration of the catheterisation had been the responsibility of the medical staff. There had been no medical necessity for the intervention, which had therefore been carried out solely for the purposes of the police measure, through the use of force by the police officers.", "51. He also maintained that the investigation into his claims of ill-treatment had not been effective, since the decisions had not taken into account the medical evidence substantiating his allegations that his legs had been restrained. In his opinion, the investigating and judicial authorities should not have relied on the testimonies of the medical staff and the police officers, who had evidently been biased.", "( b ) The Government", "52. The Government contested the applicant ’ s factual allegations, maintaining that he had voluntarily consented to the medical intervention, had appeared to be cooperative, and had only shown resistance once the procedure had started. Any restraint used by the police, as noted in the police reports, had only been necessary owing to the applicant ’ s aggressive behaviour, and had been exercised only after the intervention had already started, in order to reduce any potential medical risk.", "53. The Government also pointed out that catheterisation had a statutory basis and was necessary for the protection of public security and the interests of others. There had been no clear medical practice or regulations concerning the nature of the disputed intervention, and therefore in the present case it had not been possible to decide what form of consent had been necessary.", "54. As to the proportionality of the measure, the Government argued that the catheterisation had entailed negligible risks to the applicant ’ s health, and he had only suffered minor injuries, which in any case had resulted from his own aggressive behaviour rather than the medical intervention. Any humiliation caused by the measure had been due to the fact that the applicant had failed to cooperate, as evidenced by the witness testimonies.", "55. As regards the alleged handcuffing, the Government emphasised that the origins of the applicant ’ s injuries on his wrists could not be established in the domestic proceedings. In any event, the applicant had not pursued his complaint about this issue. Similarly, it could not be verified whether the applicant had been in leg restraints during the catheterisation.", "2. The Court ’ s assessment", "( a ) General principles", "56. As the Court has held on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim ’ s behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).", "57. Even where it is not motivated by reasons of medical necessity, Article 3 of the Convention does not as such prohibit recourse to a medical procedure in defiance of the will of a suspect in order to obtain from him or her evidence of his or her involvement in the commission of a criminal offence. However, any recourse to a forcible medical intervention in order to obtain evidence of a crime must be convincingly justified on the facts of a particular case. This is especially true where the procedure is intended to retrieve from inside the individual ’ s body real evidence of the very crime of which he is suspected. The particularly intrusive nature of such an act requires strict scrutiny of all the surrounding circumstances. In this connection, due regard must be had to the seriousness of the offence in issue. The authorities must also demonstrate that they took into consideration alternative methods of recovering the evidence. Furthermore, the procedure must not entail any risk of lasting detriment to a suspect ’ s health (see Jalloh v. Germany [GC], no. 54810/00, § § 7 0-71, ECHR 2006 ‑ IX).", "58. Moreover, the Court has held that the following factors are of particular importance when assessing an interference with a person ’ s physical integrity carried out with the aim of obtaining evidence: the extent to which a forcible medical intervention was necessary to obtain the evidence, the health risks for the suspect, the manner in which the procedure was carried out and the physical pain and mental suffering it caused, the degree of medical supervision available, and the effects on the suspect ’ s health (ibid., § 76).", "59. Having regard to the general duty on the State under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, the provisions of Article 3 require by implication that there should be some form of effective official investigation where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands, inter alia, of the police or other similar authorities (see Bouyid, cited above, § 116).", "( b ) Application of these principles to the present case", "60. In the instant case, there is no dispute that the applicant underwent catheterisation. The parties disagree about the manner in which the intervention was conducted and whether the applicant consented to it. Thus, the Court firstly needs to decide whether the applicant consented to the medical intervention (see, mutatis mutandis¸ Bogumil v. Portugal, no. 35228/03, §§ 69 and 71, 7 October 2008).", "61. The Court notes in this respect that the parties disagree as to whether the applicant initially gave his consent to the catheterisation. The Government pointed out that, after questioning a number of witnesses, the authorities had found it established that the applicant had agreed to the medical procedure. The applicant stated that he had never given his consent to the intervention, and that even the domestic courts had acknowledged that he had resisted the procedure shortly after it had started.", "62. The Court reiterates in this respect that where domestic proceedings have taken place, it is not the Court ’ s task to substitute its own assessment of the facts for that of the domestic courts, and as a general rule it is for those courts to assess the evidence before them. Though the Court is not bound by the findings of domestic courts and remains free to make its own appreciation in the light of all the material before it, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by the domestic courts (see, among other authorities, Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 180, ECHR 2011 (extracts)).", "63. The Court firstly notes that there was no well-established domestic practice or regulations concerning the use and method of catheterisation to obtain evidence of a person ’ s involvement in an offence. Neither did the domestic law provide guarantees against the arbitrary or improper taking of urine samples through catheterisation. In particular, there was no consistent approach to the necessary form of consent in such situations (see paragraphs 18 above 22 above).", "64. Secondly, the Court acknowledges that, when assessing the issue of consent, the domestic authorities were confronted with two conflicting versions of events. It is true that the authorities were prepared to treat the applicant ’ s allegations seriously and not dismiss them outright. During the investigations, the applicant was questioned as to his version of the events which had occurred in the police station. The investigating authorities interviewed the persons involved, including the police officers, the driver on duty and the medical staff, assembled the relevant evidence, including the medical reports, and took other steps in order to establish the circumstances of the incident. Thus, it cannot be said that the authorities did not make a genuine attempt to eliminate the discrepancies between the applicant ’ s specific statements and the police officers ’ statements, but rather that, following the examination, they decided to give preference to the police officers ’ account of the events.", "65. However, they paid no heed to the surrounding circumstances, in particular to the fact that the applicant ’ s alleged consent had been given while he had been under the influence of alcohol (see paragraph 10 above) and under the control of the police officers. The Court also has doubts as to whether the applicant, being in the hands of the authorities and in their complete control, had any option in practice but to undergo the impugned procedure (see, mutatis mutandis, Y.F. v. Turkey, no. 24209/94, § 34, ECHR 2003 ‑ IX). The Court reiterates that with the exception of certain situations not applicable in the present case, the domestic law requires informed consent as a prerequisite of any medical intervention (see paragraph 28 above). It also observes that although the domestic authorities accepted that the applicant had given his consent to the catheterisation, they had no regard to the question whether taking a person ’ s shouting “do the catheterisation” as agreement to a medical intervention while that person was under the influence of alcohol was compatible with the requirement of informed consent laid down in domestic law.", "66. In any event, bearing in mind the applicant ’ s right to withdraw his initial consent at any time, as guaranteed under domestic law (see paragraph 28 above), the Court observes that the applicant clearly resisted the intervention, as evidenced by the fact that the police officers had to pin him down in order for the procedure to be completed. In this respect, the Court also notes that, from a medical point of view, there was a possibility to interrupt the catheterisation once it had started (see paragraph 22 above).", "67. Taking into account all the above-mentioned facts, the Court cannot conclude that there was free and informed consent by the applicant throughout the intervention.", "68. As regards the purpose of the medical intervention at issue, the Court considers, and it is not disputed by the parties, that an order was given for the urine sample to be taken in order to determine whether the applicant had been involved in a traffic-related offence. Thus, it was intended to retrieve real evidence from inside the applicant ’ s body, and was not carried out in response to a potential medical necessity.", "69. As to the manner in which the catheterisation was done, the Court considers that, given the intrusive nature of the act, the present case is to be distinguished from situations where an intervention is considered to be of minor importance. Furthermore, although the procedure was carried out by a doctor in a medical emergency service, the police officers restrained the applicant and kept him handcuffed throughout the medical intervention to which he was forcibly subjected.", "70. As regards the extent to which the forcible medical intervention was necessary to obtain the evidence, the Court notes that the police officers suspected that the applicant was under the influence of alcohol and drugs. He was subsequently convicted of the offence of drink-driving (see paragraph 13 above). The Court accepts that the police officers deemed it necessary to determine the blood alcohol level of the applicant and to find out whether he was under the influence of drugs, as he was a road user. However, for the Court the recourse to a catheterisation was unnecessary in the light of the fact that the police officers also proceeded with the taking of a blood sample for the same purposes. Moreover, catheterisation was not a generally accepted and applied measure in the context of domestic practice and in comparison to blood tests, there was no clear stance as to the utility of the measure in obtaining evidence of drug-related offences (see paragraphs 18 and 22 above).", "71. As to the effects of the impugned measure on the applicant ’ s health, the Court notes that the parties disagree about whether the taking of a sample by catheterisation caused him any physical injury or mental suffering, and whether it entailed any risk to his health. Taking into account the medical expert opinion commissioned in the course of the administrative proceedings, the Court cannot but observe that domestic medical practice also disagreed as to whether the intervention should be considered to be of an invasive nature. Therefore, the methods of carrying out such a procedure also differed. Having regard to the divergent domestic approach on this matter, it cannot be established with certainty that the intervention entailed no possible risk to the applicant ’ s health.", "72. The authorities subjected the applicant to a serious interference with his physical and mental integrity, against his will. They forced him to undergo catheterisation, not for therapeutic reasons (for the relevant principles see Jalloh, cited above, § 69), but in order to retrieve evidence which they otherwise also obtained by taking the applicant ’ s blood sample. The manner in which the impugned measure was carried out was liable to arouse in the applicant feelings of insecurity, anguish and stress that were capable of humiliating and debasing him. Furthermore, there is no material that would allow the Court to conclude that the officers paid any consideration to the risk the procedure could have entailed for the applicant. Although it cannot be established that this was the intention, the measure was implemented in a way which caused the applicant both physical pain and mental suffering. He has therefore been subjected to inhuman and degrading treatment contrary to Article 3.", "73. Accordingly, the Court concludes that there has been a violation of Article 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "74. In the applicant ’ s submission, the taking of a urine sample from him by force also amounted to a disproportionate interference with his right to respect for his private life. He relied on Article 8 of the Convention, the relevant parts of which read:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "75. The Government raised objections on the grounds of victim status and exhaustion of domestic remedies. In any event, in their opinion, there had been no interference with the applicant ’ s private life, since the applicant had voluntarily consented to the medical intervention, had appeared to be cooperative, and had shown resistance only once the procedure had started.", "76. The applicant disagreed with the Government ’ s assertions.", "77. The Court has already examined the applicant ’ s complaint under Article 3 of the Convention concerning the forcible catheterisation. In view of its conclusion that there has been a violation of that provision, it is not necessary to examine separately either the admissibility or the merits of the complaint raised under Article 8 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "78. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "79. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.", "80. The Government contested this claim.", "81. Taking into account all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Having regard to the nature of the violations found in the instant case, the Court considers it equitable to award the applicant EUR 9 ,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "82. The applicant also claimed EUR 4,080 plus VAT for costs and expenses incurred before the Court. This sum corresponds to twenty-six hours of legal work billed by his lawyer.", "83. The Government contested this claim.", "84. In accordance with the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the full sum claimed.", "C. Default interest", "85. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The applicants, Franja and Ivan Šilih, were born in 1949 and 1940 respectively and live in Slovenj Gradec.", "11. On 3 May 1993, at some point between midday and 1 p.m., the applicants'twenty-year-old son, Gregor Šilih, sought medical assistance in the Slovenj Gradec General Hospital for, inter alia, nausea and itching skin. He was examined by a duty doctor, M.E. On the basis of a diagnosis of urticaria (a type of allergic reaction), M.E. ordered the administration of intravenous injections of a drug containing glucocorticosteroid ( Dexamethason) and an antihistaminic ( Synopen ). Following the injections, the applicants'son's condition significantly deteriorated. This was probably a result of him being allergic to one or both of the drugs. His skin became very pale, he began to tremble and to feel cold; M.E. noticed signs of tachycardia. A diagnosis of anaphylactic shock was made. Subsequently, at 1.30 p.m., the applicant's son was transferred to intensive care. M.E. ordered the administration of, inter alia, adrenaline. By the time the cardiologist arrived, the applicants'son had stopped breathing and had no pulse. Cardiopulmonary resuscitation was given. At around 2.15 p.m. the applicants'son was connected to a respirator and his blood pressure and pulse returned to normal, but he remained in a coma; his brain was severely damaged.", "12. On 4 May 1993 he was transferred to the Ljubljana Clinical Centre ( Klinični center v Ljubljani ), where he died on 19 May 1993.", "13. The exact timing of the events which led to the death of the applicants'son and the action taken by M.E. in response to his deteriorating condition were disputed in the domestic proceedings.", "14. On 13 May 1993 the applicants lodged a criminal complaint ( ovadba ) with the Slovenj Gradec Unit of the Maribor First-Instance Public Prosecutor's Office ( Temeljno javno tožilstvo Maribor, Enota v Slovenj Gradcu ) against M.E. for the criminal offence of “negligent medical treatment” ( nevestno zdravljenje ) which, following the applicants'son's death, was characterised as “a serious criminal offence that [had] caused damage to health” ( hudo kaznivo dejanje zoper človekovo zdravje ). The applicants argued that, through the intravenous injection of the two drugs, M.E. had given their son the wrong treatment and had subsequently failed to take appropriate corrective measures after his condition deteriorated.", "15. In the course of the preliminary proceedings ( predkazenski postopek ) medical documents concerning the treatment administered to the applicants'son were seized by the police and, following his death, the duty investigating judge ( preiskovalni sodnik ) directed the Ljubljana Institute for Forensic Medicine ( Inštitut za sodno medicino v Ljubljani ) to conduct an autopsy and prepare a forensic report.", "16. On 26 August 1993 the police submitted a report to the public prosecutor from which it appears that the Ministry of Health ( Ministrstvo za zdravstvo ) requested the Medical Association ( Zdravniško Društvo ) to set up a commission to prepare an opinion in the case. The commission was composed of the same experts as those who were preparing the forensic report (see paragraph 17 below). According to the report, the opinion was sent on 11 June 1993 to the Ministry of Health, which published it in two of Slovenia's main newspapers on 19 June 1993.", "17. On 1 July 1993 the Ljubljana Institute for Forensic Medicine submitted their report, which stated, inter alia :", "“The anaphylactic shock which ... followed the administration of Dexamethason and Synopen was most likely due to sensitivity to one of the mentioned drugs.", "The medical treatment of anaphylactic shock in the Slovenj Gradec Hospital was, on the basis of the medical records, in accordance with established medical practice.", "The consequent ventricular fibrillation was influenced by the infection of the heart muscle, which Gregor Šilih must have contracted several weeks before 3 May 1993.", "After the ventricular fibrillation occurred, the hospital staff gave resuscitation. According to the medical records, this was performed in accordance with established medical practice.", "In the period from Gregor Šilih's admission to the Slovenj Gradec Hospital until his death, we have not found any acts or omissions in his medical treatment which could be characterised as clearly inappropriate or negligent.”", "18. On 8 April 1994 the public prosecutor dismissed the applicants'criminal complaint on the ground of insufficient evidence.", "A. Criminal proceedings", "19. On 1 August 1994 the applicants, acting as “subsidiary” prosecutors ( subsidiarni tožilec ), lodged a request for the opening of a criminal investigation ( zahteva za preiskavo ) into M.E.'s conduct.", "20. On 8 November 1994, having heard representations from M.E. on 26 October 1994, the investigating judge of the Maribor First-Instance Court ( Temeljno sodišče v Mariboru ) granted their request. On 27 December 1994, on an appeal ( pritožba ) by M.E., the interlocutory-proceedings panel ( zunaj- obravnavni senat ) of the Maribor First-Instance Court overturned the investigating judge's decision after finding that the evidence in the case-file, in particular the forensic report, did not afford reasonable grounds for suspecting M.E. of manifestly acting in breach of professional standards.", "21. An appeal by the applicants and a request for the protection of legality ( zahteva za varstvo zakonitosti ) were dismissed, the latter in a decision of 29 June 1995 by the Slovenj Gradec District Court ( Okrožno sodišče v Slovenj Gradcu ), which obtained jurisdiction in the case after the reorganisation of the judiciary in 1995. The applicants contested that decision. On 5 October 1995 the Maribor Higher Court ( Višje sodišče v Mariboru ) dismissed their appeal on essentially the same grounds as those on which the previous appeal and request for the protection of legality had been rejected, namely that the applicants were not entitled to appeal against the interlocutory-proceedings panel's decision not to institute criminal proceedings against the doctor.", "22. Subsequently the applicants obtained a medical opinion from Doctor T.V. who stated, inter alia, that myocarditis (inflammation of the heart muscle), which had previously been considered a contributory factor in the death of the applicants'son, could have occurred when he was in anaphylactic shock or even later. As a result, on 30 November 1995 they lodged a request to reopen the criminal investigation (see paragraph 90 below). In addition, they lodged a motion to change the venue of the proceedings to the Maribor District Court ( Okrožno sodišče v Mariboru ). On 31 January 1996 the Maribor Higher Court granted their motion for a change of venue.", "23. On 26 April 1996 the interlocutory-proceedings panel of the Maribor District Court granted the applicants'request for the reopening of the investigation. An appeal by M.E. was rejected by the Maribor Higher Court on 4 July 1996.", "24. In the course of the investigation, the investigating judge examined witnesses and obtained an opinion from P.G., an expert at the Institute of Forensic Medicine in Graz ( Austria ). P.G. stated in his report that the administration of the antihistaminic had led to the applicants'son's serious allergic reaction. He expressed doubts as to the pre-existence of myocarditis.", "25. On 10 February 1997 the investigating judge closed the investigation.", "26. Owing to the complexity of the case, the applicants asked the Maribor District Public Prosecutor's Office ( Okrožno državno tožilstvo v Mariboru ) to take over the conduct of the prosecution. Their request was rejected on 21 February 1997. The Head of the Maribor District Public Prosecutor's Office subsequently explained to the Supreme Public Prosecutor ( Vrhovni državni tožilec ) that, while P.G.'s report confirmed the existence of reasonable suspicion that M.E. had caused the death by negligence, it was not a sufficient basis on which to lodge an indictment as that required a degree of certainty.", "27. On 28 February 1997 the applicants lodged an indictment accusing M.E. of the criminal offence of “causing death by negligence” ( povzročitev smrti iz malomarnosti ).", "28. On 7 May 1997, upon M.E.'s objection to the indictment, the interlocutory-proceedings panel of the Maribor District Court directed the applicants to request, within three days, additional investigative measures (see paragraph 93 below).", "29. The investigating judge subsequently examined several witnesses and ordered a forensic report by K.H., an Austrian forensic expert in the field of emergency medicine and anaesthesia. K.H. stated in his report that the ultimate reason for the death of the applicants'son was relatively uncertain, so that the issue of the effectiveness of the measures taken by M.E in response to the son's condition was of no relevance.", "30. On 22 June 1998 the investigating judge informed the applicants that it had been decided to close the investigation. He reminded them that they must either lodge an indictment or a further request for additional investigating measures within fifteen days (see paragraphs 91-92 below).", "31. On 30 June 1998 the applicants asked the investigating judge to question K.H., P.G. and T.V.", "32. On 24 November 1998, after questioning K.H., the investigating judge informed the applicants that the investigation had been closed. They were again reminded that they must either lodge an indictment or a further request for additional investigative measures within fifteen days.", "33. On 10 December 1998 the applicants lodged an indictment supplemented by evidence that had been obtained in the extended investigation. On 12 January 1999 an interlocutory-proceedings panel rejected M.E.'s objection to the initial indictment as unfounded.", "34. On 22 January 1999 M.E. lodged a request for the protection of legality, claiming that the indictment submitted on 10 December 1998 had not been served on her. On 25 February 1999 the Supreme Court ( Vrhovno sodišče ) quashed the Maribor District Court's decision of 12 January 1999 and remitted the case to the District Court with instructions to serve the indictment of 10 December 1998 on M.E. M.E. subsequently lodged an objection to that indictment and on 3 June 1999 the interlocutory-proceedings panel decided to refer the case back to the applicants, directing them to obtain further evidence – by requesting additional investigative measures – within three days from the service of its decision.", "35. The applicants complied with the directions and on 21 June 1999 requested additional investigative measures, in particular the examination of K.H., P.G. and T.V. In their request, they complained of the remittal of the case since they considered that the evidence should have been further assessed at the trial and not at that stage of the proceedings.", "36. Further to their request, the investigating judge ordered a supplementary report from K.H. and, on 3 December 1999, informed the applicants that further investigative measures had been taken and that they had 15 days in which to lodge an indictment or request additional measures.", "37. Following a request by the applicants on 16 December 1999 for further measures, the investigating judge ordered a reconstruction of the events of 3 May 1993 and the examination of two witnesses.", "38. The investigation was closed on 3 May 2000. The applicants were reminded of the requirements under section 186, paragraph 3, of the Criminal Procedure Act (“ the CPA” – see paragraph 92 below).", "39. In the meantime, on 28 June 1999 the applicants again made an unsuccessful request to the public prosecutor to take over the conduct of the prosecution.", "40. On 19 May 2000 the applicants filed a further indictment and the additional evidence they had been directed to obtain.", "41. In August 2000 the applicants complained to the Judicial Council ( Sodni svet ) about the length of the criminal proceedings. They also challenged the three judges sitting on the interlocutory-proceedings panel which had previously heard M.E.'s objection to the indictment. On 10 October 2000 the President of the Maribor District Court rejected the applicants'request for the judges to stand down.", "42. Following a further objection to the indictment by M.E., the interlocutory-proceedings panel examined the case on 18 October 2000 and decided to discontinue the criminal proceedings. Relying in particular on the opinions of the Ljubljana Institute of Forensic Medicine and K.H., it found that the applicants'son's reaction to the administration of Dexamethason and/or Synopen was a consequence of his sensitivity to those drugs and of myocarditis, which was undoubtedly a pre-existing condition. As regards the conduct of M.E., the interlocutory-proceedings panel found that there was insufficient evidence to substantiate the applicants'accusation that she had committed the criminal offence alleged. The applicants were ordered to pay the court fees and the expenses incurred in the proceedings since 23 January 1999 (the date the CPA was amended so as to require the aggrieved party to pay costs if the proceedings ended with the dismissal of the indictment).", "43. On 7 November 2000 the applicants lodged an appeal which the Maribor Higher Court dismissed on 20 December 2000. They then petitioned the Public Prosecutor-General ( Generalni državni tožilec ), asking him to lodge a request for the protection of legality with the Supreme Court. Their petition was rejected on 18 May 2001.", "44. In the meantime, on 13 March 2001 the applicants lodged a constitutional appeal with the Constitutional Court ( Ustavno sodišče ), complaining of procedural unfairness and the length of the proceedings and that they had been denied access to a court since the indictment had been rejected by the interlocutory-proceedings panel. On 9 October 2001 the Constitutional Court dismissed their appeal on the ground that after the final discontinuance of criminal proceedings a “subsidiary” prosecutor could not appeal to the Constitutional Court, as he had no locus standi before that court.", "45. On 27 March 2001 the applicants also lodged a criminal complaint alleging improper conduct on the part of seven judges of the Maribor District and Higher Courts who had sat in their case. The complaint was dismissed as unfounded by the Maribor District Public Prosecutor's Office on 13 June 2001.", "46. Subsequently, the applicants made several attempts to reopen the case. Among other motions filed by the applicants that were rejected as inadmissible by the authorities were the following.", "On 3 July 2001 they lodged a “request for the criminal proceedings to be reinstated”, which was considered in substance to be a request for the reopening of the case. On 29 August 2001 the interlocutory-proceedings panel of the Maribor District Court dismissed the request on the grounds that the criminal proceedings had been discontinued in a decision that was final and that it would be detrimental to the accused to reopen the case. On 9 November 2001 the Maribor Higher Court rejected an appeal by the applicants dated 4 September 2001.", "On 24 June 2002 the applicants lodged with the Maribor Higher Court a “request for immediate annulment of the entire criminal proceedings ... conducted before the Maribor District Court”. This was also considered in substance to be a request for the reopening of the case and was likewise dismissed. On 27 November 2002 the Maribor Higher Court rejected an appeal by the applicants.", "47. Ultimately, on 17 July 2002 the applicants lodged a fresh indictment against M.E. On 14 July 2003 the Slovenj Gradec District Court struck the indictment out because the prosecution of the alleged offence had become time-barred on 3 May 2003.", "B. Civil proceedings", "48. On 6 July 1995 the applicants instituted civil proceedings against the Slovenj Gradec General Hospital and M.E. in the Slovenj Gradec District Court for the non-pecuniary damage they had sustained as a result of their son's death in the amount of 24,300,000 Slovenian tolars (SIT).", "49. On 10 August 1995 they also instituted proceedings against the head of the internal medical care unit, F.V., and the director of the Slovenj Gradec General Hospital, D.P. Further to a request by the applicants, the court joined the two sets of proceedings.", "50. All the defendants in the proceedings had lodged their written pleadings by October 1995.", "51. On 30 August 1997, in a supervisory appeal ( nadzorstvena pritožba ) to the President of the Slovenj Gradec District Court, the applicants argued that the civil proceedings should proceed despite the fact that criminal proceedings were pending since the latter had already been considerably delayed.", "52. On 21 October 1997, referring to sub-paragraph 1 of section 213 of the Civil Procedure Act (see paragraph 97 below), the court stayed the civil proceedings pending a final decision in the criminal proceedings. It noted that the outcome of the civil proceedings would depend to a large extent on the determination of the preliminary question ( predhodno vprašanje ), namely the verdict in the criminal proceedings. The applicants did not appeal against that decision, which therefore became final on 17 November 1997.", "53. On 22 October 1998 Judge S.P. replied to a supervisory appeal by the applicants dated 15 October 1998, inter alia in the following terms:", "“[The applicants] are'subsidiary'prosecutors in the criminal proceedings and therefore are very well aware that the proceedings before the Maribor District Court, where the preliminary question is being determined, have not been completed. Their supervisory appeal concerning the stay of the [civil] proceedings is therefore pure hypocrisy.”", "Upon a complaint by the applicants lodged with the Ministry of Justice, Judge S.P. was ordered to explain her reply to the applicants.", "54. In February 1999 the applicants again filed a supervisory appeal; the stay, however, remained in force.", "55. On 27 August 1999 Judge P.P., to whom the case appears to have been assigned in the meantime, sent the applicants a letter, in which he stated, inter alia :", "“In the instant case the determination of criminal liability is a preliminary question which is relevant to the determination of the civil claim, since a civil court cannot establish facts which are different from those established by the criminal court.”", "56. On 8 September 1999 the applicants filed a motion for a change of venue which the Supreme Court rejected on 13 October 1999.", "57. On 6 December 1999 the Slovenj Gradec District Court informed the applicants that the reasons for staying the proceedings still obtained.", "58. On 12 March 2001 the applicants filed a supervisory appeal requesting that the stay of the civil proceedings be lifted. On 19 May 2001 Judge P.P. scheduled a hearing for 13 June 2001. However, that hearing was subsequently cancelled at the applicants'request after their representative explained that she had been injured in a road accident and was on sick leave.", "59. On 11 June 2001 the applicants filed a further motion for a change of venue. On 27 September 2001 the Supreme Court decided to move the venue to the Maribor District Court on the grounds of “tension that was impeding and delaying the trial”.", "60. The case was subsequently assigned to Judge M.T.Z. On 3 April 2002 the Maribor District Court held a hearing which was adjourned as the applicants indicated that they wished to lodge a request for the judges officiating at that court to stand down.", "61. After lodging a criminal complaint against some of the judges (see paragraph 45 above), the applicants filed a motion on 8 April 2002 for all the judges at the Maribor District Court and Maribor Higher Court to stand down. Having been asked to comment on the applicants'request, Judge M.T.Z. stated, inter alia, that she had realised at the hearing on 3 April 2002 that one of the defendants, with whom she had shaken hands at the hearing, was a close acquaintance (“ dober znanec ”) of her father. She added that the applicants were constantly lodging objections which had made it impossible to conduct the proceedings properly. It would appear that Judge M.T.Z subsequently herself requested permission to withdraw from the case. On 12 August 2002 the request for the judges to stand down was granted in so far as it concerned Judge M.T.Z. The case was assigned to Judge K.P.", "62. On 21 November 2002 and 20 March 2003 the Supreme Court rejected the applicants'motions for a change of venue.", "63. A hearing scheduled for 12 June 2003 was adjourned at the applicants'request, after they had alleged that their lawyer was unwilling to represent them since her daughter had been denied medical care in the Ljubljana Clinical Centre. They subsequently informed the court that their lawyer would, in fact, continue to represent them.", "64. On 28 October 2003 the Maribor District Court held a hearing at which it examined F.V. and M.E. It would appear from the records of the hearing that the applicants were not allowed to ask a series of twelve questions they wished to put. The judge's decision not to allow the questions was based mostly on objections made by the defendant, although on four occasions the court does appear to have stated reasons for its decision not to allow the question concerned.", "65. On 8 December 2003 the applicants filed a motion for Judge K.P. to stand down. That request was rejected on 18 December 2003.", "66. A hearing scheduled for 16 January 2004 was adjourned because the applicants had lodged a further motion for a change of venue. On 5 March 2004 the applicants lodged another motion. Both motions were rejected by the Supreme Court (on 22 January 2004 and 13 May 2004 respectively).", "67. It appears that hearings scheduled for 23 and 24 March 2005 were adjourned because of the applicants'newly appointed lawyer's commitments in another, unrelated case.", "68. On 4 May 2005 the applicants filed written submissions and amended their claim for damages. They also requested that the proceedings be expedited.", "69. On 12 October 2005 Judge D.M., to whom the case had apparently meanwhile been assigned, was ordered by the President of the Maribor District Court to treat the case with priority and to report every sixty days on the status of the proceedings. The President explained his decision by referring to the length of the proceedings, the case's high profile and the intervention by the Ombudsman ( Varuh človekovih pravic ).", "70. A hearing was held on 23, 25 and 27 January 2006 before Judge D.M. The applicants withdrew their claims in respect of F.V. and D.P. After the hearing, they requested Judge D.M. to stand down on the grounds that she had refused to allow them adequate time to reply to their opponent's extensive submissions which had been filed on the same day. Their request was rejected by the President of the Maribor District Court on 30 January 2006. However, on 31 January 2006 Judge D.M. herself asked to withdraw from the proceedings on the ground that her full name had been mentioned in a newspaper article on 28 January 2006 which had also stated that she had been asked to stand down owing to the alleged unequal treatment of the parties in the proceedings. The president of the court upheld her request as being “certainly well-founded”.", "71. The case was subsequently assigned to Judge A.Z.", "72. Hearings were held on 16 June and 25 August 2006.", "73. On 25 August 2006 the Maribor District Court delivered a judgment rejecting the applicants'claim, which ultimately amounted to SIT 10,508,000 in respect of non-pecuniary damage and SIT 5,467,000 in respect of pecuniary damage. The applicants were ordered to pay legal costs to the defendants. Relying on the expert opinions, the court concluded that M.E. could not have foreseen the applicants'son's reaction to the drugs that were administered to him and that she and the hospital staff had acted in accordance with the required standard of care. In addition, the court rejected as unsubstantiated the applicants'claim that the hospital was not properly equipped.", "74. On 25 October 2006 the applicants lodged an appeal with the Maribor Higher Court. They argued that the first-instance court had not correctly established all the relevant facts, had wrongly applied the substantive law and had committed a procedural error by not allowing or taking into account certain evidence and, in particular, by refusing to obtain a further expert opinion.", "75. On 15 January 2008 the Maribor Higher Court rejected the appeal as unsubstantiated and upheld the first-instance court's judgment.", "76. On 28 February 2008 the applicants lodged an appeal on points of law ( revizija ).", "77. On 10 July 2008 the Supreme Court rejected the applicants'appeal on points of law after noting that, apart from the reference to the European Court of Human Rights'judgment finding a violation of Article 2 of the Convention, it raised essentially the same complaint as their appeal to the Higher Court, namely the refusal to obtain or consider certain evidence the applicants considered relevant. It rejected the complaint as unsubstantiated, finding that the lower courts had acted in accordance with the law. It further held that the European Court of Human Rights'judgment, which related to the requirement for the prompt examination of cases concerning death in a hospital setting, could not have influenced its conclusion as to the lawfulness of the refusal to obtain or consider the evidence in question.", "78. On 15 September 2008 the applicants lodged a constitutional appeal with the Constitutional Court alleging a violation of the following constitutional guarantees: the right to equality before the law, the inviolability of human life, the right to equal protection, the right to judicial protection and the right to legal remedies.", "The proceedings are still pending.", "C. The criminal complaint filed against the first applicant", "79. On 29 April 2002 the Maribor District Public Prosecutor lodged a bill of indictment ( obtožni predlog ) against the first applicant alleging that she had engaged in insulting behaviour by saying to an official at the Maribor District Court “I have had enough of this f*** court, the damn State does not do anything, isn't it aware that our son was killed!”. The prosecution was based on a criminal complaint filed by the Maribor District Court.", "80. On 5 October 2004 the Maribor District Court withdrew the criminal complaint as a result of the Ombudsman's intervention (see paragraph 85 below). The Maribor Local Court subsequently dismissed the bill of indictment.", "D. Findings of the Ombudsman", "81. The applicants lodged several petitions with the Ombudsman's office concerning the conduct of the civil proceedings. Their case was reported in the Ombudsman's Annual Reports of 2002, 2003 and 2004.", "82. In a letter to the President of the Slovenj Gradec District Court on 24 April 2001, the Deputy Ombudsman stressed that the issue of criminal liability could not be regarded as a preliminary question in the civil proceedings instituted against the doctor and the hospital. He further stated that there was no justification for staying the civil proceedings.", "83. In a letter to the applicants of 29 August 2002 and his Annual Report of 2002 (pp. 42 and 43), the Ombudsman criticised the conduct of Judge M.T.Z. He stressed that the judge had expressed concerns about her ability to appear impartial only after the applicants had filed the request for her to stand down and after the Ombudsman's intervention in the case, although she had been aware of the reasons for the concerns beforehand.", "84. The section of the Ombudsman's Report of 2003 (pp. 226-228) dealing with the applicants'case and in particular criticising aspects of the judge's conduct of the civil proceedings states, inter alia :", "“In the record of the hearing [of 28 October 2003] reference is made to twelve questions which the plaintiffs were not permitted to ask. ... As regards the majority of these twelve questions, the record contains no indication why the judge did not allow the plaintiffs to put the questions. In each instance, there was a prior objection by the defendants'representatives to the question.", "...", "Although [the applicants'] reactions, statements and proposals were perhaps extreme on occasion, the authorities, including the courts, ought to have taken into account their emotional distress ... [a factor which] may necessitate the trial being conducted in a particularly tolerant and flexible way, [though] without breaching procedural rules to the detriment of the defendants. However, the record of the hearing gives the impression of a tense rather than dispassionate atmosphere at the hearing, an impression that is reinforced also by the records of the exchanges between the judge and the plaintiffs'representative.”", "85. In his Annual Report of 2004 (pp. 212-214), the Ombudsman criticised the Maribor District Court for filing the criminal complaint against the first applicant. The report drew attention to the Maribor District Court's explanation that it was required by law to file and pursue the criminal complaint as it would be guilty of a criminal offence if it did not. The Ombudsman stressed that there was no legal basis for such a conclusion. On the contrary, a criminal charge for an offence of insulting behaviour could only be pursued on the basis of the aggrieved party's criminal complaint, which in the instant case was the Maribor District Court's complaint. Following the Ombudsman's intervention and in view of the arguments set out in his letters, the Maribor District Court decided to withdraw the criminal complaint against the first applicant.", "III. DECLARATION OF SLOVENIA UNDER FORMER ARTICLES 25 AND 46 OF THE CONVENTION OF 28 JUNE 1994:", "105. On 28 June 1994, when depositing the instrument of ratification of the Convention with the Secretary General of the Council of Europe, the Ministry of Foreign Affairs of the Republic of Slovenia made the following declaration:", "“The Republic of Slovenia declares that it recognizes for an indefinite period of time, in accordance with Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 of Protocol No. 4 and Article 7 of Protocol No. 7, the competence of the European Commission of Human Rights to deal with petitions addressed to the Secretary General of the Council of Europe by any person, non-governmental organisation or group of individuals claiming to be the victim of [a] violation of the rights set forth in the Convention and its Protocols, where the facts of the alleged violation of these rights occur after the Convention and its Protocols have come into force in respect of the Republic of Slovenia.", "The Republic of Slovenia declares that it recognizes for an indefinite period of time, in accordance with Article 46 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 of Protocol No. 4 and Article 7 of Protocol No. 7, as compulsory ipso facto and without special agreement, on condition of reciprocity, the jurisdiction of the European Court of Human Rights in all matters concerning the interpretation and application of the Convention and its Protocols and relating to facts occurring after the Convention and its Protocols have come into force in respect of the Republic of Slovenia.”" ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Criminal Code", "86. The Criminal Code ( Kazenski zakonik, Official Gazette no. 63/94), as amended, defines, under the heading “Criminal Offences causing Damage to Health” criminal offences concerning injury caused by negligent health care. In addition, Article 129 of the Criminal Code provides that anyone who causes the death of another by negligence shall be sentenced to imprisonment for not less than six months and not more than five years. These offences are subject to mandatory prosecution by the public prosecutor, but a “subsidiary” prosecution by an aggrieved party will also lie ( see paragraph 88 below).", "B. The Criminal Procedure Act", "87. Criminal proceedings in Slovenia are regulated by the Criminal Procedure Act ( Zakon o kazenskem postopku, Official Gazette no. 63/94 – “ the CPA ” ) and are based on the principles of legality and officiality. Prosecution is mandatory when reasonable suspicion ( utemeljeni sum ) exists that a criminal offence subject to mandatory prosecution has been committed.", "88. Public prosecutions are conducted by the public prosecutor's office. However, if the public prosecutor dismisses the criminal complaint or drops the prosecution at any time during the course of the proceedings, the aggrieved party has the right to take over the conduct of the proceedings in the capacity of “subsidiary” prosecutor, that is, as an aggrieved party acting as a prosecutor (CPA, section 19(3)). A “subsidiary” prosecutor has, in principle, the same procedural rights as the public prosecutor, except those that are vested in the public prosecutor as an official authority (CPA, section 63(1)). If the “subsidiary” prosecutor takes over the conduct of the proceedings, the public prosecutor is entitled at any time pending the conclusion of the main hearing to resume the conduct of the prosecution (CPA, section 63(2)).", "89. Criminal investigations are conducted by the investigating judge at the request of a public or “subsidiary” prosecutor. If the investigating judge does not agree with a request to open an investigation, he must refer it to an interlocutory-proceedings panel of three judges, which then decides whether to open a criminal investigation. If the investigating judge grants the request, the accused may lodge an appeal with the interlocutory-proceedings panel. Parties to the proceedings may appeal against the interlocutory-proceedings panel's decision to the Higher Court ( višje sodišče ). Appeals do not stay the execution of the decision to open an investigation (section 169 of the CPA).", "90. If a request for an investigation has been dismissed owing to a lack of reasonable suspicion that the suspect has committed a criminal offence, the criminal proceedings may be reopened at the request of the public or “subsidiary” prosecutor provided new evidence is adduced on the basis of which the interlocutory-proceedings panel is able to satisfy itself that the conditions for instituting criminal proceedings are met (CPA, section 409).", "91. Section 184 of the CPA provides that the investigating judge must end the investigation once the circumstances of the case have been sufficiently elucidated. The prosecutor must within the following fifteen days either request further investigative measures, lodge an indictment or drop the charges.", "92. As regards the aggrieved party's role in the investigation, the relevant part of section 186 of the CPA provides:", "“(1) An aggrieved party acting as a prosecutor ... may request the investigating judge to open an investigation or propose additional investigative measures. During the course of the investigation they may also submit other proposals to the investigating judge.", "(2) The institution, conduct, suspension and termination of an investigation shall be governed, mutatis mutandis, by the provisions of the present Act applying to ... the investigation conducted at the request of the public prosecutor ...", "(3) When the investigating judge considers that the investigation is complete he or she shall inform the aggrieved party acting as a prosecutor. .. The investigating judge shall also advise such aggrieved party .... that he or she must file the indictment ... within fifteen days, failing which he or she may be deemed to have withdrawn from the prosecution and a decision may be taken to discontinue the proceedings. The investigating judge shall also be bound to give such warning to the aggrieved party acting as a prosecutor ... in cases where the panel has dismissed his or her motion to supplement the investigation because it is of the opinion that the matter has been sufficiently investigated.”", "93. After the investigation has ended, court proceedings may be conducted only on the basis of an indictment (CPA, section 268).", "Under section 274 of the CPA, the accused may lodge an objection to the indictment within eight days after its receipt. The objection is examined by the interlocutory-proceedings panel. Section 276 of the CPA provides, inter alia :", "“( 2) If in considering the objection the interlocutory-proceedings panel discovers errors or defects in the indictment (section 269) or in the procedure itself, or finds that further investigations are required before the decision on the indictment is taken, it shall return the indictment to the prosecutor with directions to correct the established defects or to supplement ... the investigation. The prosecutor shall within three days of being informed of the decision of the panel submit an amended indictment or request a ... supplementary investigation. ... ”", "94. In addition, the relevant part of section 277 of the CPA provides:", "“(1) In deciding an objection to the indictment the interlocutory-proceedings panel shall not accept the indictment and shall discontinue the criminal proceedings if it finds that:", "...", "(3) a criminal prosecution is statute-barred ...", "(4) there is not enough evidence to justify reasonable suspicion that the accused has committed the act with which he is charged.”", "C. The Code of Obligations", "95. Under the provisions of the Obligations Act ( Zakon o obligacijskih razmerjih, Socialist Federative Republic of Yugoslavia's (“SFRJ”) Official Gazette no. 29/1978,) and its successor from 1 January 2002, the Code of Obligations ( Obligacijski zakonik, Official Gazette no. 83/2001), health institutions and their employees are liable for pecuniary and non-pecuniary damage resulting from the death of a patient through medical malpractice. The employer may incur civil liability for its own acts or omissions or vicarious liability for damage caused by its employees provided that the death or injury resulted from the employee's failure to conform to the relevant standard of care. Employees are directly liable for death or injury under the civil law only if it is caused intentionally. However, the employer has a right to bring a claim for a contribution from the employee if the death or injury was caused by the latter's gross negligence.", "D. The Civil Procedure Act", "96. Section 12 of the Civil Procedure Act ( Zakon o pravdnem postopku, SFRJ Official Gazette no. 4-37/77), as amended, provides:", "“When the decision of the court depends on a preliminary determination of the question whether a certain right or legal relationship exists, but [the question] has not yet been decided by a court or other competent authority (preliminary question), the court may determine the question by itself, save as otherwise provided in special legislation.", "The court's decision on the preliminary question shall be effective only in the proceedings in which the question was determined.", "In civil proceedings, the court shall be bound with respect to the existence of a criminal offence and criminal liability by a finding of guilt by a criminal court judgment that is final.”", "97. The relevant part of section 213 of the Civil Procedure Act provides as follows:", "“In addition to the examples specifically given in this Act, the court may order a stay of proceedings:", "1. if it decides not to determine the preliminary question itself (section 12)...”", "98. The relevant part of section 215 of the Civil Procedure Act provides:", "“If the court has stayed the proceedings in accordance with the first line of the first paragraph of ... section 213, the proceedings shall resume once the [other] proceedings are finally concluded ( pravnomočno končan postopek ) ... or when the court finds that there is no longer any reason to await the end [of the other proceedings].", "In all cases, the discontinued proceedings shall continue at the relevant party's request, immediately after the reasons justifying the stay cease to exist.”", "99. Equivalent provisions can be found in sections 13, 14, 206 and 208 of the new Civil Procedure Act ( Zakon o pravdnem postopku, Official Gazette no. 83/2001), which came into force on 14 July 1999.", "E. Regulation concerning the organisation and functioning of the Tribunal of the Medical Association", "100. The Regulation on the organisation and functioning of the Tribunal of the Medical Association of Slovenia (“the Medical Tribunal”) ( Pravilnik o organizaciji in delu razsodišča Zdravniške Zbornice Slovenije ), issued on 20 March 2002, lays down, inter alia, the procedure for establishing the responsibility of doctors for breaches of the professional rules and the disciplinary measures which can be taken as a result. The Commissioner of the Medical Association ( tožilec Zbornice – “the Commissioner” ), who is elected from among the members of the Medical Association, is autonomous and has authority to lodge a case with the first-instance Medical Tribunal. An aggrieved party may request the Commissioner to start the proceedings, but the Commissioner may reject such a request. If so, the aggrieved party may invite the Medical Tribunal to conduct a preliminary investigation. However, the power to file a formal case with the Medical Tribunal is vested solely in the Commissioner.", "101. Article 7 of the Regulation provides that the Medical Tribunal must base its decision solely on the indictment and the evidence submitted by the Commissioner and the accused doctor. If the accused doctor or the Commissioner is dissatisfied with the verdict, he or she may appeal to the second-instance Medical Tribunal.", "F. The Act on the Protection of the Right to a Trial without Undue Delay", "102. On 1 January 2007 the Act on the Protection of the Right to a Trial without Undue Delay ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Gazette no. 49/2006 – “the 2006 Act”) became operational. The 2006 Act provides for two remedies to expedite pending proceedings – a supervisory appeal and a motion for a deadline to be set ( rokovni predlog ) – and, ultimately, for a claim for just satisfaction in respect of damage sustained because of undue delay ( zahteva za pravično zadoščenje ).", "103. The above remedies are available, inter alia, to parties to civil proceedings and aggrieved parties in criminal proceedings.", "104. The acceleratory remedies can be applied for during first- or second-instance proceedings. In addition, the 2006 Act also provides the possibility of redress through a compensatory remedy, namely by bringing a claim for just satisfaction. By virtue of sections 15, 19 and 20 of the 2006 Act a party wishing to lodge a claim for just satisfaction must satisfy two cumulative conditions. Firstly, during the first- and/or second-instance proceedings the applicant must have used the supervisory-appeal procedure or lodged a motion for a deadline. Secondly, the proceedings must have been finally resolved ( pravnomočno končan ). The final resolution of the case in principle refers to the final decision against which no ordinary appeal lies; this is normally the first-, or if an appeal has been lodged, the second-instance court's decision. Moreover, the amount which can be awarded in respect of non-pecuniary damage sustained as a result of the excessive length of the proceedings in each finally resolved case cannot exceed 5,000 euros (EUR) (for a more detailed presentation of the relevant provisions of the 2006 Act, see Žunič v. Slovenia, (dec) no. 24342/04, 18 October 2007 ).", "IV. RELEVANT INTERNATIONAL LAW AND PRACTICE", "A. The Vienna Convention of 1969 on the Law of Treaties", "106. The Vienna Convention on the Law of Treaties (the Vienna Convention) entered into force on 27 January 1980. Article 28, which contains the principle of the non-retroactivity of treaties, provides:", "“Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.”", "B. International Law Commission's Draft Articles on Responsibility of States for Internationally Wrongful Acts (adopted by the International Law Commission on 9 August 2001)", "107. Article 13, which is headed “International obligation in force for a State”, provides:", "“An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs.”", "108. Furthermore, Article 14, which is headed “Extension in time of the breach of an international obligation”, reads as follows:", "“1. The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue.", "2. The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation.", "3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.”", "C. The International Court of Justice", "109. The approach adopted by the International Court of Justice (ICJ) in cases raising an issue as to ratione temporis jurisdiction has focused on the source or real cause of the dispute (see also the case-law cited in Blečić v. Croatia [GC], no. 59532/00, § 74, ECHR 2006 ‑ III ). In the Case concerning Right of Passage over Indian Territory (Merits) (Judgment of 12 April 1960: I.C.J. Reports 1960 p.p. 33-36), the ICJ, relying on the jurisprudence of the Permanent Court of International Justice (PCIJ), found it had temporal jurisdiction to deal with a dispute concerning India's denial to Portugal of passage between its territory and its two enclaves in Indian Territory in 1954. India argued, inter alia, that the dispute was inadmissible ratione temporis as the Portuguese claim to a right of passage predated the court's jurisdiction, which had begun on 5 February 1930. The ICJ, however, found that:", "“ ... it appeared ..., that the dispute submitted to the Court has a threefold subject: (1) The disputed existence of a right of passage in favour of Portugal; (2) The alleged failure of India in July 1954 to comply with its obligations concerning that right of passage; (3) The redress of the illegal situation flowing from that failure. The dispute before the Court, having this three-fold subject, could not arise until all its constituent elements had come into existence. Among these are the obstacles which India is alleged to have placed in the way of exercise of passage by Portugal in 1954. The dispute therefore as submitted to the Court could not have originated until 1954.”", "110. The ICJ therefore found that there was not, so far as the date of the birth of the dispute was concerned, any bar to its jurisdiction. Referring to the terms of the Indian Declaration of Acceptance of the court's jurisdiction, the ICJ noted that the Declaration did not proceed on the principle of excluding from the acceptance any given dispute, but proceeded in a positive manner on the basis of indicating the disputes which were included within that acceptance. The ICJ found:", "“ .... By its terms, the jurisdiction of the Court is accepted'over all disputes arising after February 5th, 1930, with regard to situations or facts subsequent to the same date'. In accordance with the terms of the Declaration, the Court must hold that it has jurisdiction if it finds that the dispute submitted to it is a dispute with regard to a situation subsequent to 5 February 1930 or is one with regard to facts subsequent to that date.", "The facts or situations to which regard must be had in this connection are those with regard to which the dispute has arisen or, in other words, as was said by the Permanent Court in the case concerning the Electricity Company of Sofia and Bulgaria, only'those which must be considered as being the source of the dispute', those which are its'real cause'. ... The Permanent Court thus drew a distinction between the situations or facts which constitute the source of the rights claimed by one of the Parties and the situations or facts which are the source of the dispute. Only the latter are to be taken into account for the purpose of applying the Declaration accepting the jurisdiction of the Court.”", "The ICJ went on to find that:", "“ ... it was only in 1954 that such a controversy arose and the dispute relates both to the existence of a right of passage to go into the enclaved territories and to India's failure to comply with obligations which, according to Portugal, were binding upon it in this connection. It was from all of this that the dispute referred to the Court arose; it is with regard to all of this that the dispute exists. This whole, whatever may have been the earlier origin of one of its parts, came into existence only after 5 February 1930. The time-condition to which acceptance of the jurisdiction of the Court was made subject by the Declaration of India is therefore complied with.”", "D. The United Nations Human Rights Committee", "111. The United Nations Human Rights Committee (“the Committee”) has recognised that the States have positive obligations to protect the right to life. These include an obligation to carry out effective investigations. The Committee has inferred these obligations from a combination of both Articles 2 (respecting rights and effective remedy) and 6 (right to life) of the International Covenant on Civil and Political Rights (“the Covenant”). In this connection, it is important to note that according to the Committee's jurisprudence, the right to a remedy can only be breached in conjunction with a substantive right, which means that in cases where the death occurred outside its temporal jurisdiction, there could be no breach of Article 2 with regard to Article 6 (see paragraph 112 below – S.E. v. Argentina ). The Committee, however, found that a lack of investigation into the disappearance or death may result in inhuman treatment (Article 7 of the Covenant) of the victim's family, even if the disappearance or death took place before the entry into force of the Optional Protocol granting a right to submit individual communications (see paragraph 113 below – Sankara et al. v. Burkina Faso ).", "112. In the case of S.E. v. Argentina (Communication No. 275/1988, which was declared inadmissible on 26 March 1990 ), the applicant's three children had been abducted by Argentine security forces in 1976 and their whereabouts had been unknown ever since. On 8 November 1986 the Covenant and the Optional Protocol entered into force in respect of Argentina. In December 1986 and June 1987 the Argentine legislature enacted legislation preventing new investigations into the so-called “dirty-war” and providing an amnesty for members of the security forces for related crimes. The applicant claimed that the enactment of this legislation constituted violations by Argentina of its obligations under Article 2, paragraphs 2 and 3, of the Covenant. Taking into account that in order for the right to a remedy to arise, a violation of a substantive right must be established, the Committee observed that:", "“ 5.3. ... the events which could have constituted violations of several articles of the Covenant and in respect of which remedies could have been invoked, occurred prior to the entry into force of the Covenant and of the Optional Protocol for Argentina. Therefore, the matter cannot be considered by the Committee, as this aspect of the communication is inadmissible ratione temporis .”", "113. In the more recent case of Mariam Sankara et al. v. Burkina Faso (Communication No. 1159/2003, 28 March 2006 ), the Committee found it did have jurisdiction ratione temporis in relation to the investigation into the disappearance of Thomas Sankara, who had been abducted and murdered in 1987, that is to say well before 4 April 1999, when the State became a party to the Optional Protocol. In 1997, within the ten-year limitation period, his wife lodged a complaint with a court against a person or persons unknown for the assassination of Mr Sankara and the falsification of a death certificate. She claimed that no inquiry had been conducted. The Committee, which ultimately found violations of Article 7, on account of the suffering of Mr Sankara's family, and Article 14, on account of the breach of the guarantee of equality in the proceedings, considered that:", "“6.2 ... a distinction should be drawn between the complaint relating to Mr Thomas Sankara and the complaint concerning Ms Sankara and her children. The Committee considered that the death of Thomas Sankara, which may have involved violations of several articles of the Covenant, occurred on 15 October 1987, hence before the Covenant and the Optional Protocol entered into force for Burkina Faso. This part of the communication was therefore inadmissible ratione temporis. Thomas Sankara's death certificate of 17 January 1988, stating that he died of natural causes - contrary to the facts, which are public knowledge and confirmed by the State party (paras. 4.2 and 4.7) - and the authorities'failure to correct the certificate during the period since that time must be considered in the light of their continuing effect on Ms Sankara and her children.”", "The Committee went on to find that:", "“6.3 ... it could not consider violations which occurred before the entry into force of the Optional Protocol for the State party unless those violations continued after the Protocol's entry into force. A continuing violation is to be interpreted as an affirmation, after the entry into force of the Optional Protocol, by act or by clear implication, of previous violations by the State party. The Committee took note of the authors'arguments concerning, first, the failure of the authorities to conduct an inquiry into the death of Thomas Sankara (which was public knowledge) and to prosecute those responsible - allegations which are not in fact challenged by the State party. These constitute violations of their rights and of the obligations of States under the Covenant. Secondly, it was clear that in order to remedy this situation, the authors initiated judicial proceedings on 29 September 1997, i.e. within the limits of the 10-year statute of limitations, and these proceedings continued after the Covenant and the Optional Protocol entered into force for Burkina Faso. Contrary to the arguments of the State party, the Committee considered that the proceedings were prolonged, not because of a procedural error on the part of the authors, but because of a conflict of competence between authorities. Consequently, insofar as, according to the information provided by the authors, the alleged violations resulting from the failure to conduct an inquiry and prosecute the guilty parties have affected them since the entry into force of the Covenant and the Optional Protocol because the proceedings have not concluded to date, the Committee considered that this part of the communication was admissible ratione temporis .”", "E. The Inter-American Court of Human Rights", "114. The Inter-American Court of Human Rights (IACHR) has established the procedural obligations arising in respect of killings or disappearances under several provisions of the American Convention on Human Rights (“the American Convention”). In cases concerning breaches of procedural obligations, in particular where it found that the substantive aspect of the right to life had also been violated, the IACHR was ready to find a violation of Article 4 (right to life) taken together with Article 1 § 1 (obligation to respect rights) of the American Convention (see Velásquez Rodríguez v. Honduras, judgment of 29 July 1988, and Godínez Cruz Case v. Honduras, judgment of 20 January 1989). In many cases, in particular those where the substantive limb of Article 4 had not been breached, the IACHR examined such procedural complaints autonomously under Article 8, which, unlike the European Convention, guarantees the right to a fair trial for the determination of rights and obligations of any nature, and Article 25, which protects the right to judicial protection, taken together with Article 1 § 1. The IACHR followed the latter approach in cases where the killing or disappearance took place before the recognition of its jurisdiction by a respondent State.", "115. In Serrano-Cruz Sisters v. El Salvador (judgment of 23 November 2004 – Preliminary Objections ), which concerned the disappearance of two girls thirteen years before El Salvador recognised the IACHR's jurisdiction, the IACHR decided that:", "“77. ... the facts that the Commission alleges in relation to the alleged violation of Articles 4 (Right to Life), 5 (Right to Personal Integrity) and 7 (Right to Personal Liberty) of the Convention, in relation to Article 1(1) (Obligation to Respect Rights) thereof, to the detriment of Ernestina and Erlinda Serrano Cruz, are excluded owing to the limitation to the recognition of the Court's jurisdiction established by El Salvador, because they relate to violations which commenced in June 1982, with the alleged'capture'or'taking into custody'of the girls by soldiers of the Atlacatl Battalion and their subsequent disappearance, 13 years before El Salvador recognized the contentious jurisdiction of the Inter-American Court.", "78. In view of these considerations and pursuant to the provisions of Article 28 of the 1969 Vienna Convention on the Law of Treaties, the Court admits the preliminary objection ratione temporis ... ”", "116. As regards alleged deficiencies in the domestic criminal investigations into the disappearances in this case, the IACHR found that the allegations concerned judicial proceedings and thus independent facts which had taken place after the recognition of the IACHR's jurisdiction. It therefore concluded that it had temporal jurisdiction to deal with these allegations as they constituted specific and autonomous violations concerning the denial of justice that had occurred after the recognition of the IACHR's jurisdiction. It noted, more specifically, that:", "“80. ... the Commission has submitted to the Court's consideration several facts related to an alleged violation of Articles 8 (Right to a Fair Trial) and 25 (Judicial Protection) of the Convention, in relation to Article 1(1) (Obligation to Respect Rights) thereof, which allegedly took place after recognition of the Court's jurisdiction and which occurred in the context of the domestic criminal investigations to determine what happened to Ernestina and Erlinda Serrano Cruz ...", "...", "84. The Court considers that all the facts that occurred following El Salvador's recognition of the Court's jurisdiction and which refer to the alleged violations of Articles 8 and 25 of the Convention, in relation to Article 1(1) thereof, are not excluded by the limitation established by the State, because they refer to judicial proceedings that constitute independent facts. They commenced after El Salvador had recognized the Court's jurisdiction and can constitute specific and autonomous violations concerning denial of justice occurring after the recognition of the Court's jurisdiction.", "...", "94. Therefore, the Court decides to reject the preliminary objection ratione temporis in relation to the alleged violations of Articles 8 and 25 of the Convention, in relation to Article 1(1) thereof, and to any other violation whose facts or commencement was subsequent to June 6, 1995, the date on which the State deposited with the OAS General Secretariat the instrument recognizing the Court's jurisdiction.”", "117. In Moiwana Village v. Suriname (judgment of 15 June 2005) Suriname made a preliminary objection arguing that the IACHR lacked jurisdiction ratione temporis, since the acts complained of by the Commission and the victims (alleged massacre in 1986 by army forces of forty villagers and the destruction of village buildings, causing the subsequent displacement of the surviving villagers) had occurred one year prior to Suriname's becoming a State Party to the American Convention and its recognition of the IACHR's jurisdiction. The IACHR, referring to Article 28 of the Vienna Convention, noted that:", "“39. ... [a]ccording to this principle of non-retroactivity, in the case of a continuing or permanent violation, which begins before the acceptance of the Court's jurisdiction and persists even after that acceptance, the Tribunal is competent to examine the actions and omissions occurring subsequent to the recognition of jurisdiction, as well as their respective effects.”", "118. Noting that the obligation to investigate arose from the allegations of a massacre and relying on the continuing nature of the alleged failure to investigate the past events, the IACHR found in this case the following:", "“43. ... [T]he Court distinguishes between alleged violations of the American Convention that are of a continuing nature, and those that occurred after November 12, 1987. With respect to the former, the Tribunal observes that the perpetration of a massacre in 1986 has been alleged; in consequence, an obligation arose for the State to investigate, prosecute and punish the responsible parties. In that regard, Suriname initiated an investigation in 1989. Yet, the State's obligation to investigate can be assessed by the Court starting from the date when Suriname recognized the Tribunal's competence. Thus, an analysis of the State's actions and omissions with respect to that investigation, in light of Articles 8, 25 and 1.1 of the Convention, falls within the jurisdiction of this Court. ...", "44. Consequently, the instant preliminary objection is dismissed on the grounds set out above.", "...", "141. The Court has held above that it lacks jurisdiction over the events of November 29, 1986 in Moiwana Village; nevertheless, the Tribunal does have competence to examine the State's fulfilment of its obligation to investigate those occurrences ( supra paragraph 43). The following assessment will establish whether that obligation was carried out pursuant to the standards set forth in Articles 8 and 25 of the American Convention.", "...", "163. In consideration of the many facets analyzed above, the Court holds that Suriname's seriously deficient investigation into the 1986 attack upon Moiwana Village, its violent obstruction of justice, and the extended period of time that has transpired without the clarification of the facts and the punishment of the responsible parties have defied the standards for access to justice and due process established in the American Convention.", "164. As a result, the Tribunal declares that the State violated Articles 8(1) and 25 of the American Convention, in relation to Article 1(1) of that treaty, to the detriment of the Moiwana community members.”", "THE LAW", "I. THE SCOPE OF THE CASE BEFORE THE GRAND CHAMBER", "119. In its judgment of 28 June 2007, the Chamber declared admissible the complaints concerning the procedural aspect of Article 2 of the Convention, the length of the civil and criminal proceedings and the fairness of the criminal proceedings under Article 6 and the alleged lack of an effective remedy under Article 13. The complaints concerning the substantive aspect of Article 2, the fairness of the civil proceedings under Article 6, and the complaints under Articles 3 and 14 were declared inadmissible.", "120. The Court reiterates that in the context of Article 43 § 3 the “case” referred to the Grand Chamber embraces all aspects of the application as it has been declared admissible by the Chamber. Yet this does not mean that the Grand Chamber may not also examine, where appropriate, issues relating to the admissibility of the application in the same manner as a Chamber, for example by virtue of Article 35 § 4 in fine of the Convention (which empowers the Court to “reject any application which it considers inadmissible ... at any stage of the proceedings”), or where such issues have been joined to the merits or are otherwise relevant at the merits stage ( K. and T. v. Finland [GC], no. 25702/94, §§ 140-41, ECHR 2001 ‑ VII).", "121. In view of the foregoing and having regard to the parties'submissions before the Grand Chamber, the Court will proceed to examine the part of the application which was declared admissible by the Chamber.", "II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION IN ITS PROCEDURAL LIMB", "122. The applicants complained that the criminal and civil proceedings they had instituted did not allow for the prompt and effective establishment of responsibility for their son's death.", "The relevant part of Article 2 of the Convention provides:", "“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life...”", "A. The Government's preliminary objections", "123. The Government raised two preliminary objections altogether. In the proceedings before the Chamber they pleaded a failure to exhaust domestic remedies. In the proceedings before the Grand Chamber they contested the Court's jurisdiction ratione temporis to deal with the applicants'complaint.", "1. Jurisdiction ratione temporis", "(a) The Chamber judgment", "124. The Chamber examined the ratione temporis issue of its own motion in its judgment of 28 June 2007. It held that it had no jurisdiction ratione temporis to deal with the applicants'complaint concerning the substantive limb of Article 2 as the applicants'son's death had clearly taken place before the date of the ratification of the Convention by Slovenia. As to the procedural aspect of Article 2, the Chamber, having regard to the previous case-law on the issue and to the principle of the time of interference established in Blečić v. Croatia ( §§ 72 and 82, cited above ), found that its competence to examine this complaint would depend on the facts of the case and the scope of the right involved.", "125. In this connection, the Chamber held that the State's obligation to set up an effective judicial system for establishing the cause of and responsibility for the death of an individual in receipt of medical care had an autonomous scope. It also observed that it was not disputed in the present case that the applicants'son's condition had started significantly to deteriorate in the hospital and that his death was potentially related to the medical treatment he had received. Moreover, the Chamber was satisfied that the two sets of proceedings that had been instituted were theoretically capable of leading to the establishment of the exact circumstances which had led to the death and potential responsibility for it at all levels.", "126. The Chamber went on to determine whether the facts constitutive of the alleged procedural violation of Article 2 fell within the period under the Court's temporal jurisdiction. It observed that the criminal proceedings had been successfully reopened on 4 July 1996 and that the civil proceedings were instituted in 1995. Taking into consideration that the alleged defects in the proceedings had originated at the earliest on the date the proceedings were instituted, which was after the date of the ratification, the Chamber concluded that it had temporal jurisdiction to examine the applicants'complaint concerning the procedural aspect of Article 2. Referring to Broniowski v. Poland ((dec.) [GC], no. 31443/96, § 74, ECHR 2002 ‑ X ) the Chamber also held that it could have regard to the facts prior to ratification inasmuch as they might be relevant for the understanding of facts occurring after that date.", "(b) Submissions of those appearing before the Court", "(i) The Government", "127. Relying on the Court's position in Blečić v. Croatia (cited above, §§ 63-69) and on the fact that the Chamber had considered the ratione temporis issue of its own motion in its judgment of 28 June 2007, the Government raised a plea of inadmissibility on account of the Court's lack of jurisdiction ratione temporis.", "128. The Government stressed before the Grand Chamber that while the criminal and civil proceedings concerning the death of the applicants'son had both started after the ratification of the Convention by Slovenia on 28 June 1994, the death had occurred before that date.", "129. They argued that by declaring the complaint concerning the procedural aspect of Article 2 admissible, the Chamber had contravened the general principles of international law on the non-retroactivity of treaties, adding that this section of the Chamber's judgment was inconsistent with the Court's established case-law, in particular the decisions in Moldovan and Others and Rostaş and Others v. Romania (dec.), nos. 41138/98 and 64320/01, 13 March 2001; Voroshilov v. Russia (dec.), no. 21501/02, 8 December 2005; Stamoulakatos v. Greece (no. 1), 26 October 1993, § 33, Series A no. 271; Kadiķis v. Latvia (dec.) no. 47634/99, 29 June 2000; and Jovanović v. Croatia (dec.), no. 59109/00, ECHR 2002-III.", "130. In their submission, the above case-law established that the acts or omissions by which a Convention right was allegedly infringed and the proceedings related thereto were indissociable and so could not be examined separately. On that point, the Government argued that the initial event – the applicants'son's death – was non-existent so far as the Court was concerned and the Court was therefore precluded from examining whether it gave rise to any obligation.", "131. The Government further asserted that individual aspects of Article 2, such as the procedural aspect, could have no independent existence. By examining the procedural aspect of Article 2, the Chamber had not looked at the death merely as a background fact but had inevitably examined the alleged violation of the substantive limb of Article 2 of the Convention.", "132. In support of that contention, the Government pointed to the difference between the cases under Article 2 and the length-of-proceedings cases under Article 6 of the Convention, which fell partly outside and partly within the Court's jurisdiction ratione temporis. In their submission, the examination of the length of proceedings did not depend on the subject-matter of the proceedings. Likewise, the length of the proceedings after ratification of the Convention was independent of the part of the proceedings conducted before that date. In contrast, in Article 2 cases, the Court did not examine the proceedings as an independent issue but as part of the investigation of a concrete event.", "133. The Government further submitted that the Chamber's conclusion in respect of its ratione temporis jurisdiction disregarded the principles set out in paragraphs 68 and 77-81 of the Blečić judgment (cited above). In particular, they emphasised that the remedies should not be able to bring the interference within the Court's jurisdiction and that affording a remedy usually presupposed a finding that the interference had been unlawful under the law in force when the interference occurred.", "134. Finally, the Government maintained that in cases such as the present one neither the initial event nor the subsequent proceedings could be understood as constituting a continuing violation.", "(ii) The applicants", "135. The applicants did not dispute the Government's right to raise the preliminary objection ratione temporis before the Grand Chamber.", "136. They argued that it was not possible simply to ignore the fact that during the period within the Court's temporal jurisdiction the domestic authorities had done nothing to establish the cause of their son's death.", "137. In their submission, the States had a particular obligation to create an effective judicial system to establish the cause of death of an individual in receipt of medical care. This obligation was an autonomous one.", "138. Referring to Yağcı and Sargın v. Turkey (judgment of 8 June 1995, Series A no. 319 ‑ A), they submitted that after ratification of the Convention the State had to comply with the Convention; subsequent events came within the Court's competence even if they were the prolongation of a pre-existing situation. Since the defects in the proceedings had occurred after Slovenia had ratified the Convention, the Court had jurisdiction ratione temporis to deal with the complaint concerning the procedural limb of Article 2 of the Convention.", "(c) The Grand Chamber's assessment", "139. For the reasons stated in its judgment in Blečić (cited above, §§ 66-9) and noting that there is nothing that would lead it to reach a different conclusion in the present case, the Court finds that the Government are not precluded from raising the ratione temporis objection at this stage of the proceedings (see paragraphs 124, 127 and 135 above). The Court will therefore examine whether it has temporal jurisdiction to deal with the applicants'complaint concerning the procedural aspect of Article 2.", "(i) General principles", "140. The Court reiterates that the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party or, as the case may be, prior to the entry into force of Protocol No. 11, before the date on which the respondent Party recognized the right of individual petition, when this recognition was still optional (“the critical date”). This is an established principle in the Court's case-law (see Blečić, § 70, cited above) based on the general rule of international law embodied in Article 28 of the Vienna Convention (see paragraph 106 above).", "141. The Court further notes that, in applying the principle of non-retroactivity, it has been prepared in previous cases to have some regard to facts which occurred prior to the critical date because of their causal connection with subsequent facts which form the sole basis of the complaint and of the Court's examination.", "142. For example, in its consideration of cases concerning length of proceedings where the civil claim was lodged or the charge was brought before the critical date, the Court has repeatedly taken into account by way of background information facts which occurred prior to this point ( Foti and Others v. Italy, 10 December 1982, § 53, Series A no. 56; Yağcı and Sargın, cited above, § 40; and Humen v. Poland [GC], no. 26614/95, §§ 58-59, 15 October 1999 ).", "143. In an Article 6 case concerning the fairness of criminal proceedings which started prior to the critical date and continued afterwards, the Court looked at the proceedings as a whole in order to assess their fairness. This resulted in it having regard to the safeguards provided at the investigation stage prior to the critical date in order to determine whether they compensated for the deficiencies at the subsequent trial stage ( Barberà, Messegué and Jabardo v. Spain, 6 December 1988, §§ 60, 61 and 84, Series A 146).", "144. By way of further example, in the case of Zana v. Turkey ( [GC], 25 November 1997, §§ 41-42, Reports of Judgments and Decisions 1997 ‑ VII) the Court examined the interference with the applicant's right under Article 10 caused by his criminal conviction in the period within the Court's temporal jurisdiction even though the conviction related to statements made by the applicant before the critical date. Moreover, it found in a more recent case that it had temporal jurisdiction in respect of a complaint concerning the use of evidence obtained through ill-treatment even though the ill-treatment – but not the subsequent criminal proceedings – pre-dated the ratification of the Convention ( Haroutyounian v. Armenia, no. 36549/03, §§ 48-50, 28 June 2007).", "145. In several other cases, events prior to the critical date have been taken into account, to varying degrees, as a background to the issues before the Court (see, for example, Hokkanen v. Finland, 23 September 1994, § 53, Series A no. 299 ‑ A; and Broniowski, cited above, § 74).", "146. The problem of determining the limits of its jurisdiction ratione temporis in situations where the facts relied on in the application fell partly within and partly outside the relevant period has been most exhaustively addressed by the Court in the case of Blečić v. Croatia (cited above). In that case the Court confirmed that its temporal jurisdiction was to be determined in relation to the facts constitutive of the alleged interference (§ 77). In so doing, it endorsed the time of interference principle as a crucial criterion for assessing the Court's temporal jurisdiction. It found in this respect that “[i]n order to establish the Court's temporal jurisdiction it is ... essential to identify, in each specific case, the exact time of the alleged interference. In doing so the Court must take into account both the facts of which the applicant complains and the scope of the Convention right alleged to have been violated” (§ 82). The Court also indicated that if the interference fell outside the Court's jurisdiction, the subsequent failure of remedies aimed at redressing that interference could not bring it within the Court's temporal jurisdiction (§ 77).", "147. The Court notes that the test and the criteria established in the Blečić case are of a general character, which requires that the special nature of certain rights, such as those laid down in Articles 2 and 3 of the Convention, be taken into consideration when applying those criteria. The Court reiterates in this connection that Article 2 together with Article 3 are amongst the most fundamental provisions in the Convention and also enshrine the basic values of the democratic societies making up the Council of Europe (see McCann and Others v. the United Kingdom, 27 September 1995, § 147, Series A no. 324).", "(ii) The Court's jurisdiction ratione temporis in respect of the procedural complaints under Article 2 of the Convention", "(α) The relevant case-law developed so far", "148. The Court has dealt with a number of cases where the facts concerning the substantive aspect of Article 2 or 3 fell outside the period under the Court's competence while the facts concerning the related procedural aspect, that is the subsequent proceedings, fell at least partly within that period.", "149. The Court held in Moldovan and Others and Rostaş and Others v. Romania (decision cited above) that it had no jurisdiction ratione temporis to deal with the procedural obligation under Article 2 as that obligation derived from killings which had taken place before Romania ratified the Convention. However, it took the events preceding ratification (for example, the involvement of State agents in the burning of the applicants'houses) into account when examining the case under Article 8 ( Moldovan v. Romania (no. 2), nos. 41138/98 and 64320/01, §§ 102-09, ECHR 2005 ‑ VII (extracts)).", "150. In its decision in the case of Bălăşoiu v. Romania (no. 37424/97, 2 September 2003), which concerned Article 3 of the Convention, the Court came to a different conclusion. In circumstances comparable to those in the Moldovan case it decided to assume jurisdiction ratione temporis to examine the procedural limb of the complaint notwithstanding the dismissal of the substantive complaint. It based its decision on the fact that the proceedings against those responsible for the ill-treatment had continued after the critical date (see, in contrast, the decision in Voroshilov, cited in paragraph 129 above).", "151. In Kholodov and Kholodova v. Russia ((dec.), no. 30651/05, 14 September 2006), the Court declined temporal jurisdiction on the grounds that it was unable to affirm that any procedural obligation existed as it had not been able to examine the substantive limb of the application. It stated:", "“Since the Court is prevented ratione temporis from examining the applicants'assertions relating to the events in 1994, it cannot examine whether or not these events gave rise to an obligation on the part of the Russian authorities to conduct an effective investigation in the present case (see Moldovan and Others v. Romania (dec.), no. 41138/98, 13 March 2001). Likewise, the alleged failure to ensure identification and punishment of those responsible cannot be said to have constituted a continuous situation since the Court is unable to conclude that such an obligation existed (see Voroshilov v. Russia (dec.), no. 21501/02, 8 December 2005).”", "152. Having regard to the varying approaches taken by different Chambers of the Court in the above cases, the Grand Chamber must now determine whether the procedural obligations arising under Article 2 can be seen as being detachable from the substantive act and capable of coming into play in respect of deaths which occurred prior to the critical date or alternatively whether they are so inextricably linked to the substantive obligation that an issue may only arise in respect of deaths which occur after that date.", "(β) “Detachability” of the procedural obligations", "153. The Court recalls that procedural obligations have been implied in varying contexts under the Convention (see, for example, B. v. the United Kingdom, 8 July 1987, § 63, Series A no. 121; M.C. v. Bulgaria, no. 39272/98, §§ 148-153, ECHR 2003 ‑ XII; and Cyprus v. Turkey [GC], no. 25781/94, § 147, ECHR 2001 ‑ IV) where this has been perceived as necessary to ensure that the rights guaranteed under the Convention are not theoretical or illusory, but practical and effective ( İlhan v. Turkey [GC], no. 22277/93, § 91, ECHR 2000 ‑ VII ). In particular, the Court has interpreted Articles 2 and 3 of the Convention, having regard to the fundamental character of these rights, as containing a procedural obligation to carry out an effective investigation into alleged breaches of the substantive limb of these provisions ( McCann and Others, cited above, §§ 157-64; Ergi v. Turkey, 28 July 1998, § 82, Reports 1998 ‑ IV; Mastromatteo v. Italy [GC], no. 37703/97, § 89, ECHR 2002 ‑ VIII; and Assenov and Others v. Bulgaria, 28 October 1998, §§ 101-06, Reports 1998 ‑ VIII ).", "154. The Court notes the State's obligation to carry out an effective investigation or to provide for the possibility of bringing civil or criminal proceedings as may be appropriate to the case ( Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 ‑ I ) has in the Court's case-law been considered as an obligation inherent in Article 2 which requires, inter alia, that the right to life be “protected by law”. Although the failure to comply with such an obligation may have consequences for the right protected under Article 13, the procedural obligation of Article 2 is seen as a distinct obligation (see Öneryıldız v. Turkey [GC], no. 48939/99, § 148, ECHR 2004 ‑ XII; and İlhan, cited above, §§ 91-92 ).", "155. In the sphere of medical negligence, the procedural obligation under Article 2 has been interpreted by the Court as imposing an obligation on the State to set up an effective judicial system for establishing both the cause of death of an individual under the care and responsibility of health professionals and any responsibility on the part of the latter (see Calvelli and Ciglio, cited above, § 49 ).", "156. The Court observes that the procedural obligation has not been considered dependent on whether the State is ultimately found to be responsible for the death. When an intentional taking of life is alleged, the mere fact that the authorities are informed that a death had taken place gives rise ipso facto to an obligation under Article 2 to carry out an effective official investigation ( Yaşa v. Turkey, 2 September 1998, § 100, Reports 1998 ‑ VI; Ergi, cited above, § 82; and Süheyla Aydın v. Turkey, no. 25660/94, § 171, 24 May 2005 ). In cases where the death was caused unintentionally and in which the procedural obligation is applicable, this obligation may come into play upon the institution of proceedings by the deceased's relatives ( Calvelli and Ciglio, cited above, § 51, and Vo v. France [GC], no. 53924/00, § 94, ECHR 2004-VIII ).", "157. Moreover, while it is normally death in suspicious circumstances that triggers the procedural obligation under Article 2, this obligation binds the State throughout the period in which the authorities can reasonably be expected to take measures with an aim to elucidate the circumstances of death and establish responsibility for it (see, mutatis mutandis, Brecknell v. the United Kingdom, no. 32457/04, §§ 66-72, 27 November 2007, and Hackett v. the United Kingdom, (dec.) no. 34698/04, 10 May 2005).", "158. The Court also attaches weight to the fact that it has consistently examined the question of procedural obligations under Article 2 separately from the question of compliance with the substantive obligation and, where appropriate, has found a separate violation of Article 2 on that account (for example, Kaya v. Turkey, 19 February 1998, §§ 74-78 and 86-92, Reports 1998 ‑ I; McKerr v. the United Kingdom, no. 28883/95, §§ 116-61, ECHR 2001 ‑ III; Scavuzzo-Hager and Others v. Switzerland, no. 41773/98, §§ 53-69 and 80-86, 7 February 2006; and Ramsahai and Others v. the Netherlands [GC], no. 52391/99, §§ 286-89 and 323-57 ECHR 2007- ... ). In some cases compliance with the procedural obligation under Article 2 has even been made the subject of a separate vote on admissibility (see, for example, Slimani v. France, no. 57671/00, §§ 41-43, 27 July 2004, and Kanlıbaş v Turkey, (dec.), no. 32444/96, 28 April 2005 ). What is more, on several occasions a breach of a procedural obligation under Article 2 has been alleged in the absence of any complaint as to the substantive aspect of Article 2 ( Calvelli and Ciglio, cited above, § 41-57; Byrzykowski v. Poland, no. 11562/05, §§ 86 and 94-118, 27 June 2006; and Brecknell, cited above, § 53).", "159. Against this background, the Court concludes that the procedural obligation to carry out an effective investigation under Article 2 has evolved into a separate and autonomous duty. Although it is triggered by the acts concerning the substantive aspects of Article 2 it can give rise to a finding of a separate and independent “interference” within the meaning of the Blečić judgment (cited above, § 88). In this sense it can be considered to be a detachable obligation arising out of Article 2 capable of binding the State even when the death took place before the critical date.", "160. This approach finds support also in the jurisprudence of the United Nations Human Rights Committee and, in particular, of the Inter-American Court of Human Rights, which, though under different provisions, accepted jurisdiction ratione temporis over the procedural complaints relating to deaths which had taken place outside their temporal jurisdiction (see paragraphs 111-18 above).", "161. However, having regard to the principle of legal certainty, the Court's temporal jurisdiction as regards compliance with the procedural obligation of Article 2 in respect of deaths that occur before the critical date is not open-ended.", "162. First, it is clear that, where the death occurred before the critical date, only procedural acts and/or omissions occurring after that date can fall within the Court's temporal jurisdiction.", "163. Second, there must exist a genuine connection between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligations imposed by Article 2 to come into effect.", "Thus a significant proportion of the procedural steps required by this provision – which include not only an effective investigation into the death of the person concerned but also the institution of appropriate proceedings for the purpose of determining the cause of the death and holding those responsible to account ( Vo, cited above, § 89) – will have been or ought to have been carried out after the critical date.", "However, the Court would not exclude that in certain circumstances the connection could also be based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner.", "(iii) Application of the above principles to the present case", "164. In its declaration of 28 June 1994 (see paragraph 105 above), Slovenia recognised the jurisdiction of the Convention organs to deal with individual petitions “where the facts of the alleged violation of [these] rights occur after the Convention and its Protocols have come into force in respect of the Republic of Slovenia”. While framed in positive terms, the Slovenian declaration does not introduce any further limitations on the Court's temporal jurisdiction beyond those already emerging from the general principle of non-retroactivity considered above.", "165. Applying the above principles to the circumstances of the present case, the Court notes that the death of the applicants'son occurred only a little more than a year before the entry into force of the Convention in respect of Slovenia, while, with the exception of the preliminary investigation, all the criminal and civil proceedings were initiated and conducted after that date. The criminal proceedings opened effectively on 26 April 1996 (see paragraph 23 above) following the applicant's request of 30 November 1995, and the civil proceedings were instituted in 1995 (see paragraph 48 above) and are still pending.", "166. The Court notes and the Government did not dispute that the applicants'procedural complaint essentially related to the aforementioned judicial proceedings which were conducted after the entry into force of the Convention precisely with a view to establishing the circumstances in which the applicants'son had died and any responsibility for it.", "167. In view of the above, the Court finds that the alleged interference with Article 2 in its procedural aspect falls within the Court's temporal jurisdiction and that it is therefore competent to examine this part of the application. It will confine itself to determining whether the events that occurred after the entry into force of the Convention in respect of Slovenia disclosed a breach of that provision.", "2. Exhaustion of domestic remedies", "168. Before the Grand Chamber, the Government, relying on their observations from the Chamber proceedings, objected that the applicants had failed to exhaust domestic remedies. They argued, firstly, that the complaint was premature as the civil proceedings were still pending and that after the termination of the criminal and civil proceedings, the applicants would also be able to lodge a civil claim for compensation against the State on the basis of the alleged violation of their rights in the proceedings, in accordance with Article 26 of the Slovenian Constitution (see Lukenda v. Slovenia, no. 23032/02, § 9, ECHR 2005 ‑ X ).", "Secondly, they argued that the applicants had failed to avail themselves of the remedies available in respect of the complaints of undue delay.", "The applicants contested the Government's arguments.", "169. In its judgment of 28 June 2007, the Chamber found that the length-of-proceedings remedies were insufficient as it was not merely the length of the proceedings which was in issue, but the question whether in the circumstances of the case seen as a whole the State could be said to have complied with its procedural requirements under Article 2 of the Convention (see Byrzykowski, cited above, § 90).", "As regards the first limb of the objection, the Chamber observed that the applicants had resorted to all the remedies available to them in the criminal proceedings. As to the civil proceedings, which were still ongoing, the Chamber considered that this part of the Government's objection was closely linked to the substance of the applicants'complaint under the procedural aspect of Article 2 and that its examination should therefore be joined to the merits of the case.", "170. The Grand Chamber notes that the parties have not put forward any new arguments on the issue of the exhaustion of domestic remedies with regard to the Article 2 complaint in their written or oral submissions in the proceedings before it. For its part, it sees no reason to depart from the approach taken by the Chamber.", "B. Merits", "1. The Chamber judgment", "171. In its judgment of 28 June 2007, the Chamber found no indication that there had been any failure on the part of the State to provide a procedure whereby the criminal and civil responsibility of persons who might be held answerable for the applicants'son's death could be established. It went on to examine how this procedure had worked in the concrete circumstances. In that connection, it did not find it necessary to determine separately whether the criminal proceedings ending with the dismissal of the indictment by the interlocutory-proceedings panel were effective since the applicants had also instituted civil proceedings against the doctor and the hospital. The Chamber referred in this respect to the Court's judgments in Calvelli and Ciglio v. Italy and Vo v. France (cited above). The Chamber noted that the criminal proceedings were, as is usual, limited only to the determination of the charge brought against the doctor concerned and that the scope of the civil responsibility was significantly broader than criminal responsibility and did not necessarily depend on it.", "172. As regards the effectiveness of the proceedings, the Chamber found that staying the civil proceedings pending the outcome of the criminal proceedings could be considered reasonable. It noted, however, that although the decision to stay the proceedings was issued in October 1997, no steps were taken in the civil proceedings for almost six years.", "173. While the criminal proceedings took almost five years to be concluded with no charges being brought against the accused, it then took the civil court in the first-instance proceedings an additional five years to reach a verdict. During that time, the applicants made numerous applications of a procedural nature, such as for a change of judge and/or of venue, many of which had no prospect of improving their situation. However, even after taking into account the applicants'contribution to the length of the proceedings as a result of those applications, the Chamber considered that the way the civil proceedings had been handled (for example, the case had come before six different judges and was still pending after almost twelve years) could not be regarded as effective or, therefore, as satisfying the procedural requirements under Article 2.", "2. The parties'submissions", "(a) The applicants", "174. The applicants argued that the judicial system had failed to provide an effective and prompt examination of the cause of and responsibility for their son's death.", "175. They criticised the way the civil proceedings had been conducted, arguing that the authorities had been reluctant to investigate their case and had treated them in a discriminatory fashion. They also disagreed with the Government about the need to stay the civil proceedings. In their submission, the establishment of criminal liability did not constitute a preliminary question for the purposes of the Civil Procedure Act as civil liability could be established even if no criminal offence had been committed. It could also be apportioned between various parties and relate to different heads of damage.", "176. The applicants further criticised the way the courts had dealt with their requests for certain judges to stand down and the attitude displayed by some of the judges in their conduct and correspondence with the applicants and the authorities.", "177. In their observations before the Grand Chamber, the applicants criticised the public prosecutor's persistent refusal to pursue the prosecution of Doctor M.E. In this respect, they emphasised that the Maribor District Court's decision of 12 January 1999 showed that there was reasonable suspicion that a criminal offence had been committed. As a result of the public prosecutor's reluctance to proceed with the investigation, the applicants had been left with no option but to take over the conduct of the prosecution themselves and this had placed them at a disadvantage. Moreover, it had taken the authorities more than seven years to investigate the case and rule on the indictment and the criminal proceedings had failed to produce any significant result.", "178. In their oral submissions in the proceedings before the Grand Chamber, the applicants concentrated also on the issue of the impartiality of forensic experts involved in medical negligence cases in Slovenia, arguing that the limited number of doctors in Slovenia and the fact that Slovenian doctors, including forensic experts, were in the same trade union (FIDES), made it difficult to ensure strict impartiality. In the applicants'case, it was that trade union which had requested the applicants to reimburse the expenses for the legal representation provided to Doctor M.E. in the proceedings before the Maribor District Court and the Maribor Higher Court. The applicants also argued that the impartiality of the proceedings before the Medical Tribunal, to which only the accused doctor and the Medical Association's Commissioner were parties, should be called into question.", "179. The applicants alleged, in general, that there was a tendency on the part of the civil and criminal courts in Slovenia not to find against doctors accused of causing death by negligence.", "(b) The Government", "180. In the Government's submission, the Chamber had found a violation of Article 2 on the grounds that both the criminal and civil proceedings were ineffective. The preliminary investigation into the applicants'son's death and, in particular, the subsequent criminal proceedings had entirely satisfied the procedural obligation imposed by Article 2. While the criminal proceedings were guided by the principles of substantive truth and officiality, that was not the position with civil proceedings. For that reason, as a matter of principle, the civil proceedings were not capable of satisfying the procedural requirements imposed by Article 2 of the Convention.", "181. The Government noted that the initial measures following the applicants'son's death took place before the Convention entered into force. They submitted that, when examining the procedural aspect of Article 2, the Court was therefore required to take into account the status of the investigation and its findings as at that date. Moreover, the criminal proceedings instituted by the applicants had not led to any different conclusion than that reached in the initial investigations. In their oral submissions before the Grand Chamber, the Government also argued that the public prosecutor had conducted a thorough review of the decision not to assume the conduct of the prosecution in 1997 and 1999, adding that the fact that, ultimately, the court in the criminal proceedings had struck down the indictment proved the correctness of the public prosecutor's decision.", "182. The Government criticised the lack of clarity in the Chamber's judgment as regards the alleged deficiencies in the criminal proceedings. They argued that the main set of criminal proceedings ending with the decision of 20 December 2000 had been conducted as quickly as possible given the complexity of the case, which had required an extensive investigation, including the appointment of various experts from Slovenia and abroad, and a chronological reconstruction of the events. There had been no significant defects or delays in the criminal proceedings. The domestic courts had sought carefully to establish the circumstances of the applicants'son's death and any criminal liability on the part of the doctor concerned.", "183. The Government commented on the burden of proof borne by the applicants in the criminal proceedings. They maintained that, as “subsidiary” prosecutors, the applicants were required to abide by the fundamental objective of criminal proceedings and the rules applied therein and, in particular, the safeguards aimed at ensuring respect of the rights of the accused.", "184. The Government's observations further concentrated on the applicants'inability to lodge a constitutional appeal in the criminal proceedings. They submitted that this remedy was not open to an aggrieved party in the criminal proceedings for many legitimate reasons, including the non bis in idem principle.", "185. As regards the general effectiveness of the criminal proceedings in practice, the Government referred to data from the Slovenian courts which showed that “subsidiary” prosecution in cases of death resulting from alleged medical negligence was rare. Such cases were normally dealt with by the public prosecutor. In support of that contention, the Government submitted figures showing that in twelve recent medical malpractice cases criminal proceedings for the offence of causing death by negligence had been instituted by the public prosecutor. In just two of the cases the aggrieved party had later taken over the conduct of the prosecution.", "186. With regard to civil liability, the Government averred that the Obligations Act and the Code of Obligations afforded effective protection of the right to life. In support of that contention, they produced copies of judgments that had been delivered between 1998 and 2003 in five cases of alleged medical error. In four of these cases the health-care institutions had been ordered to pay damages to the plaintiffs. They also provided a list of 124 claims against health-care institutions that had been lodged with the Ljubljana and Maribor District Courts between 1995 and 2004, at least 57 of which had been finally resolved ( pravnomočno končanih ). The remainder, including 6 from 1995, appeared to be still pending before courts of first or second instance.", "187. As regards the present case, the Government argued that the issues dealt with by the courts were very complex. In addition, the applicants'conduct, in particular their repeated challenges of the judges and motions for a change of venue, had obstructed the proper conduct of the proceedings. The Government considered that the objective circumstances in the case had not warranted such a large number of requests and motions. The applicants bore sole responsibility for the delays in the proceedings after they had been resumed.", "188. Civil liability did not depend on the establishment of criminal responsibility and, in particular, the civil courts were not bound by the defendant's acquittal. As regards the staying of the civil proceedings, while the civil courts were not obliged to wait until the criminal proceedings had been concluded they had power to do so in appropriate cases. In the instant case, the decision to stay the civil proceedings was reasonable in view of the extensive process of evidence gathering that was concurrently taking place in the criminal court. Moreover, the applicants had not appealed against that decision.", "189. The Government further argued that the Chamber had erred in stating that “the court [had done] nothing for almost six years” as only three years and seven months had passed between the stay of the proceedings and their resumption. Furthermore, the Government considered it unjustified for the Chamber to have emphasised that as many as six judges had examined the case and to have held the State responsible for that. The national courts had acted solely in accordance with domestic law and decided the applicants'requests and motions as quickly as possible. As regards the two judges that had stood down, the circumstances that had led to their withdrawal were linked entirely to the applicants.", "190. It would further appear from the Government's observations before the Grand Chamber that they disputed the Ombudsman's findings in the case, in particular those concerning the staying of the proceedings and the conduct of the hearing of 28 October 2003. They argued that under domestic law the Ombudsman did not have power to interfere in proceedings pending before the domestic courts except in the case of undue delay or manifest abuse of authority. Nor was it the European Court's role to examine whether the manner in which the domestic authorities had taken the evidence was appropriate.", "191. In their observations before the Chamber, the Government also referred to the proceedings before the Medical Tribunal in order to demonstrate the effectiveness of the system of protection of the right to life. They explained that the tribunal had jurisdiction to establish possible misconduct by a doctor. As a result, disciplinary measures, including the suspension or revocation of a licence, could be imposed. They added that the applicants had not availed themselves of that remedy.", "3. The Grand Chamber's assessment", "(a) Relevant principles", "192. As the Court has held on several occasions, the procedural obligation of Article 2 requires the States to set up an effective independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see, among other authorities, Calvelli and Ciglio, cited above, § 49, and Powell v. the United Kingdom, (dec.), no. 45305/99, ECHR 2000-V).", "193. The Court reiterates that this procedural obligation is not an obligation of result but of means only ( Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002 ‑ II ).", "194. Even if the Convention does not as such guarantee a right to have criminal proceedings instituted against third parties, the Court has said many times that the effective judicial system required by Article 2 may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to personal integrity is not caused intentionally, the procedural obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case ( Mastromatteo, cited above, § 90). In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any responsibility of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and/or for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged ( Calvelli and Ciglio, cited above, § 51, and Vo, cited above, § 90).", "195. A requirement of promptness and reasonable expedition is implicit in this context. Even where there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Paul and Audrey Edwards, cited above, § 72 ). The same applies to Article 2 cases concerning medical negligence. The State's obligation under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice and that requires a prompt examination of the case without unnecessary delays (see Calvelli and Ciglio, cited above, § 53; Lazzarini and Ghiacci v. Italy (dec.), no. 53749/00, 7 November 2002; and Byrzykowski, cited above, § 117).", "196. Lastly, apart from the concern for the respect of the rights inherent in Article 2 of the Convention in each individual case, more general considerations also call for a prompt examination of cases concerning death in a hospital setting. Knowledge of the facts and of possible errors committed in the course of medical care are essential to enable the institutions concerned and medical staff to remedy the potential deficiencies and prevent similar errors. The prompt examination of such cases is therefore important for the safety of users of all health services (see Byrzykowski, cited above, § 117).", "(b) Application of the above principles in the instant case", "197. The Court notes that the fact that the applicants'son's condition started significantly to deteriorate in the hospital and that his death was possibly related to the medical treatment he received has not been disputed either before the Court or in the domestic proceedings. It further observes that the applicants alleged that their son's death was a result of negligence on the part of the doctor. It follows that the State was under a duty to ensure that the proceedings instituted with regard to the death complied with the standards imposed by the procedural obligation of Article 2 of the Convention.", "198. In this connection, the Court notes that the applicants used two legal remedies with the aim of establishing the circumstances of their son's death and responsibility for it. Following the preliminary investigation, they instituted criminal proceedings against Doctor M.E. and civil proceedings for compensation against both the hospital and the doctor.", "199. Although no disciplinary proceedings were instituted as a result of the death, the Government have not shown that such proceedings before the Medical Tribunal – to which they referred in the Chamber proceedings (see paragraph 191 above) – would have afforded an effective remedy at the material time.", "200. As regards the criminal proceedings, the Court observes that the forensic report by the Ljubljana Institute of Forensic Medicine was drafted soon after the death. Subsequently, the public prosecutor refused to initiate criminal proceedings against the doctor. Criminal proceedings were then instituted at the applicants'request and were conducted by the applicants in their capacity as “subsidiary” prosecutors. In this respect, it is to be noted that the applicants first requested the opening of a criminal investigation into Doctor M.E.'s conduct on 1 August 1994. An initial decision to open the investigation was overturned in December 1994. A further request lodged by the applicants on 30 November 1995, after they had obtained a new medical opinion, was upheld and the investigation was reopened on 26 April 1996 – almost three years after the applicants'son's death and almost two years after the applicants'initial request. After commencing in 1996, those proceedings continued for more than four years, during which period the case was twice remitted for further investigation after the indictment was lodged on 28 February 1997. They were finally discontinued by the interlocutory-proceedings panel's decision of 18 October 2000.", "201. Furthermore, despite the public prosecutor's continuing refusal to institute criminal proceedings (see paragraphs 18, 26 and 39 above), the domestic courts found that sufficient grounds existed to open the investigation (see paragraph 23 above) and a significant volume of evidence, including new forensic reports, was gathered. It was the applicants who pursued the criminal proceedings and bore the burden of the investigation, which continued for a considerable period.", "202. The Court is not called upon to determine whether in the present case the criminal proceedings should have been conducted ex-officio or to identify what sort of steps the public prosecutor should have taken as the procedural obligation under Article 2 does not necessarily require the State to provide criminal proceedings in such cases (see paragraph 194 above), even if it is clear that such proceedings could by themselves have fulfilled the requirements of Article 2. The Court therefore confines itself to noting that the criminal proceedings, in particular the investigation, were excessively long and that neither the conduct of the applicants nor the complexity of the case can suffice to explain such length.", "203. Unlike the Government, the Court finds it significant that the applicants had recourse to civil proceedings in which they were entitled to an adversarial trial enabling any responsibility of the doctors or hospital concerned to be established and any appropriate civil redress to be obtained (see, mutatis mutandis, Powell, cited above, and Vo, cited above, § 94). It is common ground that the scope of any civil liability was significantly broader than the scope of any criminal liability and not necessarily dependent on it. The civil proceedings were instituted on 6 July 1995 and, after more than thirteen years, are still pending before the Constitutional Court (see paragraph 78 above).", "204. As the Government rightly pointed out, the civil proceedings were stayed for three years and seven months pending the outcome of the criminal proceedings which the applicants were pursuing concurrently (see paragraphs 52-58 above). However, for the two years before they were officially stayed, the civil proceedings were in fact already at a standstill (see paragraphs 49-52 above).", "205. The Court appreciates that evidence adduced in criminal proceedings may be of relevance to decisions in civil proceedings arising out of the same incident. Accordingly, it does not find that the stay of the civil proceedings was in itself unreasonable in the present case. Having said that, it stresses that the stay did not release the domestic authorities from their obligation to examine the case promptly. In this respect, the Court would recall its above findings concerning the processing of the case in the criminal proceedings. In addition, it would also note that the civil court before which the applicants'case was pending remained responsible for the conduct of the civil proceedings and ought therefore to have weighed the advantages of a continued stay against the requirement of promptness when deciding whether or not to resume the proceedings.", "206. The Court further notes that during the stay of the civil proceedings, expert evidence was being gathered in the criminal proceedings. This evidence was available to the civil court when the civil proceedings resumed. Therefore, and in the light of the steps subsequently taken in the civil proceedings, the Court considers that from that point onward the time taken to bring the civil proceedings to an end could no longer be explained by reference to the particular complexity of the case. It observes, however, that after the criminal proceedings were discontinued it took the domestic courts a further five years and eight months to rule on the applicants'civil claim.", "207. In this connection, the Court notes that during that period the applicants repeatedly challenged the judges sitting in their case and lodged several motions for a change of venue. Many of these steps caused unnecessary delays and had no prospect of improving their situation. However, some of the applicants'requests turned out to be well-founded. For instance, the second motion for a change of venue was upheld and the proceedings were, as a result, moved to the Maribor District Court. The applicants were also successful on two occasions with their call for individual judges to stand down, although it would appear that the judges concerned ultimately withdrew on their own initiative.", "208. The Court would accept that the requests for a change of venue and for certain judges to stand down delayed the proceedings to a degree. In the present case, however, it considers that the delays that occurred after the stay was lifted were in many instances not reasonable in the circumstances. For example, as a result of the change of venue following the applicants'request of 11 June 2001, no hearing was held for a further nine months (paragraphs 59-60 above). After the hearing of 3 April 2002, the proceedings were dormant for four months, as the courts were apparently dealing with the applicants'motions for the judges to stand down. Subsequently Judge M.T.Z. withdrew from the proceedings. During the following ten months, the only action taken by the courts was to reject two motions for a change of venue; no other steps were taken (see paragraphs 61-63 above). In addition, after the adjournment of a hearing scheduled for 23 and 24 March 2005, and despite the applicants'letter of 4 May 2005 requesting that the proceedings be expedited, it took the court ten months to schedule the next hearing, possibly because the conduct of the case had been taken over by yet another judge (see paragraphs 67-70 above). After the withdrawal of Judge D.M. on 31 January 2006, four and a half months elapsed before the next hearing was held by a new judge on 16 June 2006 (see paragraphs 70-72 above). It is worth noting that, subsequent to that hearing, the new judge concluded the first-instance proceedings in less than three months (see paragraph 73 above).", "209. When considering the present case, the Court cannot fail to note the Ombudsman's public reports and interventions concerning the conduct of the proceedings (see paragraphs 81-85 above). The situation reflected therein could arguably have contributed to the applicants'mistrust of the manner in which the proceedings were being conducted and triggered some of their repeated challenges to the judges and the court. As regards the Government's argument that the Ombudsman lacked authority to interfere in the impugned domestic proceedings (see paragraph 190 above), the Court is of the opinion that it is not within its competence to decide on the Ombudsman's powers under the domestic law, an issue which, moreover, bears no relevance to the applicants'complaints.", "210. Lastly, the Court considers it unsatisfactory for the applicants'case to have been dealt with by at least six different judges in a single set of first-instance proceedings. While it accepts that the domestic courts are better placed to assess whether an individual judge is able to sit in a particular case, it nevertheless notes that a frequent change of the sitting judge will undoubtedly impede the effective processing of the case. It observes in this connection that it is for the State to organise its judicial system in such a way as to enable its courts to comply with the requirements of the Convention, including those enshrined in the procedural obligation of Article 2 (see, mutatis mutandis, R.M.D. v. Switzerland, 26 September 1997, § 54, Reports 1997-VI).", "211. Having regard to the above background, the Court considers that the domestic authorities failed to deal with the applicants'claim arising out of their son's death with the level of diligence required by Article 2 of the Convention. Consequently, there has been a violation of Article 2 in its procedural aspect and the Government's preliminary objection concerning the exhaustion of civil domestic remedies in respect of the procedural limb of this provision is dismissed.", "III. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION", "212. The applicants complained under Article 6 § 1 of the Convention of the unfairness of the criminal proceedings and the length of both sets of proceedings. The relevant part of Article 6 reads as follows:", "“In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”", "213. The applicants also complained that the Constitutional Court and other competent authorities had failed to respond to their complaints concerning the conduct of the proceedings relating to their son's death. They relied on Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "214. As regards Article 6 of the Convention, the Government, referring to the judgment in Perez v. France ([GC], no. 47287/99, § 70, ECHR 2004 ‑ I), argued before the Grand Chamber that the complaints concerning the criminal proceedings were incompatible ratione materiae. In addition, they argued that the part of the application that related to the criminal proceedings that had ended with the Maribor Higher Court's decision of 5 October 1995 should be declared inadmissible in accordance with Article 35 § 1 of the Convention. With regard to the civil proceedings, they argued, referring, inter alia, to the judgment in Grzinčič v. Slovenia (no. 26867/02, ECHR 2007 ‑ ... (extracts)), that the applicants should have used the remedies available since 1 January 2007 under the 2006 Act (see paragraphs 102-04 above) and that the related complaint was therefore inadmissible for non-exhaustion of domestic remedies. They further maintained that the impugned proceedings had been conducted properly and as promptly as possible.", "215. The applicants submitted that on the date the 2006 Act became operational, their application was already pending before the Court and the impugned civil proceedings had already been pending for almost twelve years before the domestic courts. On 25 August 2006 the first-instance court had delivered its judgment. The use of the remedies under the 2006 Act would therefore have been totally ineffective in their case.", "216. Having regard to the particular circumstances of the present case and to the reasoning which led it to find a violation of Article 2 in its procedural limb, the Court considers that it is not necessary also to examine the case under Article 6 § 1 and Article 13 of the Convention (see, mutatis mutandis, Öneryıldız, cited above, § 160 ).", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "217. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "218. Before the Chamber, the applicants claimed SIT 1,300,000 (approximately EUR 5,440) in respect of pecuniary damage allegedly resulting from the expenses they had incurred as a result of the inactivity of the courts in the domestic proceedings and the Public Prosecutor's refusal to institute criminal proceedings. They further claimed SIT 1,800,000 (approximately EUR 7,540) in respect of non-pecuniary damage.", "219. The Chamber's conclusion as regards the applicants'claim for damage was as follows:", "“150. The Court finds that the applicants have failed to submit documentary evidence of the expenses they allegedly incurred as a result of the inactivity of the courts in the domestic proceedings. As regards the remainder of the claim for pecuniary damage, the Court does not discern any causal link between the violation found and the pecuniary damage alleged ... It therefore rejects this claim.", "151. As to non-pecuniary damage, the Court, deciding on an equitable basis and having regard to the sums awarded in similar cases and the violation which it has found in the present case, awards the applicants the full sum claimed, namely EUR 7,540.”", "220. In the proceedings before the Grand Chamber, the applicants invited the Court to uphold the Chamber's conclusion.", "221. The Government disputed the applicants'claim.", "222. The Grand Chamber sees no reason to depart from the Chamber's finding. It accepts that the violation of the applicants'right under the procedural limb of Article 2 of the Convention caused the applicants non-pecuniary damage such as distress and frustration. Making its assessment on an equitable basis, it awards the applicants the full sum claimed under this head, namely EUR 7,540.", "B. Costs and expenses", "223. The Chamber's conclusion as regards the applicants'claim for the reimbursement of their costs and expenses was as follows:", "“154. Under the Court's case-law, an applicant is entitled to the reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, having regard to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court.”", "224. The applicants claimed EUR 5,000 in respect of the proceedings before the Grand Chamber. However, their itemised claims amounted to EUR 2,864 only, broken down as follows. Relying on the domestic scale of lawyer's fees, the applicants claimed EUR 1,184 in respect of legal fees for the work done by their representative in the written and oral proceedings before the Grand Chamber. In addition they claimed EUR 855 in respect of travel and subsistence related to his attendance at the hearing and a further EUR 825 in respect of their own travel and subsistence expenses.", "225. The Government submitted that for the purposes of calculating legal fees incurred in the proceedings before the Grand Chamber, the amount set out in lawyer's scale rates for representation before the Constitutional Court should be used. Accordingly, the overall costs and expenses in respect of legal representation came to a total of EUR 1,635. The Government disputed the applicants'entitlement to the reimbursement of their travel and subsistence expenses on the grounds that their attendance at the hearing had not been necessary, since they had been represented by counsel.", "226. The Court has consistently held that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred, and were reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see, for example, Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002, and Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003 ‑ VIII).", "227. The Grand Chamber sees no reason to depart from the Chamber's finding regarding the amount awarded in respect of the costs and expenses incurred in the proceedings before the Chamber. As regards the proceedings before the Grand Chamber, the Court considers that the costs and expenses claimed in respect of the applicants'representative's work and attendance at the hearing, namely EUR 2,039, were actually and necessarily incurred and were reasonable as to quantum. Having regard to the fact that the applicants were represented by their counsel at the hearing and in view of the nature of the case, the Court considers that the expenses incurred as a result of their attendance were not necessary and therefore rejects this part of the claim.", "228. Consequently, the Court awards the applicants a total sum of EUR 4,039 in respect of costs and expenses.", "C. Default interest", "229. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants were born in 1996, 1973 and 1961, respectively, and live in Izmir.", "A. Infection of the first applicant with the HIV virus", "6. The first applicant was born prematurely on 6 May 1996 at the Dr Behçet Uz Children's Hospital in Izmir.", "7. On 7 May 1996 he was diagnosed with an “inguinal and umbilical hernia” by doctors working in the same hospital.", "8. On an unspecified date in May or June 1996, the third applicant, who is the first applicant's father, purchased a unit of red blood cells and a unit of plasma from the Izmir Directorate of the Kızılay (the Turkish Red Cross, hereinafter “ the Kızılay ”). A number of blood and plasma transfusions were carried out on 19 May 1996, 24 May 1996, 26 May 1996, 29 May 1996 and 6 and 7 June 1996. The first applicant was discharged from the hospital on 17 June 1996.", "9. Approximately four months after the blood transfusion, the second and third applicants learned that the first applicant had been infected with the HIV virus which could develop into the more severe Acquired Immune Deficiency Syndrome (AIDS).", "10. According to the information given by the Government, on 31 October 1996 a donor (no. 1294, code MUALAB-43) donated blood to the Kızılay. Subsequent to screening and tests carried out on the donated blood (serial no. 210619), HIV was found and the blood in question was destroyed. Following two more tests, it became certain that donor no. 1294 had been infected with HIV. The authorities conducted an investigation with a view to determining whether donor no. 1294 had donated blood previously. It appeared that the unit of plasma (serial no. 202367) used for the first applicant's treatment had been given by donor no. 1294. The first applicant was admitted to the Hacettepe University Hospital for treatment. The costs of treatment were paid by the Izmir Social Solidarity and Mutual ‑ Aid Foundation.", "B. Criminal Proceedings", "1. Proceedings against the Kızılay", "11. On 7 May 1997 the applicants filed a complaint with the Public Prosecutor's office in Izmir. They claimed that the Kızılay had provided contaminated blood and the Ministry of Health had been negligent in conducting the requisite screening and testing in accordance with the relevant domestic legislation. They requested that criminal proceedings be initiated against the doctors and laboratory personnel involved in the transfusion process, as well as against the Director of the Izmir Health Department ( İzmir İl Sağlık Müdürü ) and the Director of the Kızılay Izmir Branch.", "12. On 2 October 1997 the Audit Department of the Ministry of Health prepared a report in which it stated that the unit of plasma used for the first applicant's treatment had been screened and tested for the HIV virus. However at that stage the HIV antibodies had not yet been produced in the unit of plasma donated by donor no. 1294. The report further noted that all around the world the HIV infection had been screened by Anti-HIV (ELISA) tests on the recommendation of the World Health Organisation. Therefore, it had been scientifically impossible to diagnose the HIV contained in the unit of plasma in question by the routine tests. Thus, relying on the statements given by health personnel and expert reports, the report concluded that there was no negligence attributable to the health personnel involved in the incident or to any other authority.", "13. Notwithstanding, the Audit Department advised that (1) a circular be issued to relevant departments; (2) the health personnel be reminded to ensure that questionnaires were properly filled in by blood donors; (3) questions be asked about the sexual history of the donors and (4) donations be refused in doubtful cases. The Audit Department added that health personnel's attention should be drawn to the need to wait for a sufficient period of time before delivering blood in case antibodies had not yet been produced. In this connection, on 3 January 1998 circular no. 141 and its attachments were communicated to all blood centres and stations in order to prevent infections resulting from blood transfusions.", "14. On 2 July 1998 the Izmir Administrative Council decided that no investigation could be conducted into the doctors who had been involved in the blood transfusion process on the ground that the children's hospital where the transfusions had taken place was not equipped with facilities for the ELISA test. Therefore the doctors had not been at fault in the incident.", "2. Proceedings against the Ministry of Health", "15. On 7 May 1997 the applicants filed a complaint with the Public Prosecutor's office in Izmir, this time against the Minister of Health and the Director General of the Kızılay.", "16. On 23 May 1997 the Public Prosecutor issued a decision of non ‑ prosecution. He reasoned that an investigation into the actions of a minister could only be conducted in accordance with Article 100 of the Turkish Constitution, which requires a motion to be brought in parliament. Therefore the Public Prosecutor concluded that he lacked jurisdiction ratione materiae and ratione personae in this matter. As regards the Director General of the Kızılay, the Public Prosecutor noted that he was in Ankara whereas the incident had taken place in Izmir and that there was no fault directly attributable to him, bearing in mind particularly that he had not been involved in selling the infected blood.", "17. On 8 September 1997 the applicants filed an objection with the Kırıkkale Assize Court against the Public Prosecutor's decision.", "18. On 14 October 1997 the Kırıkkale Assize Court dismissed the applicants'objection for non-compliance with the fifteen - day statutory time-limit to lodge their objection.", "C. Civil proceedings", "19. On 19 December 1997 the applicants initiated compensation proceedings against the Kızılay and the Ministry of Health. They requested non-pecuniary damage for the infection of the first applicant with HIV as a result of medical negligence on the part of the defendants.", "20. On 13 July 1998 the Ankara Civil Court of First Instance issued a decision of non-jurisdiction in respect of the case brought against the Ministry of Health. It stated that these complaints must be brought before the competent administrative tribunal.", "21. As regards the case instituted against the Kızılay, the court held that it was strictly liable for the incident as it had been established through a witness statement that the test which gave clear results on the presence of the HIV virus could not be carried out due to its high costs and that the health questionnaire system had not been in full practice at the time of the incident (see paragraph 13 above). It thus awarded the applicants 30,000,000,000 Turkish lira (TRL) plus interest at the statutory rate running from 17 June 1996, the date of the incident. The court held, in particular:", "“ ... As briefly mentioned above, Yiğit Turhan Oyal suffers from AIDS after receiving HIV virus infected blood supplied by the Izmir the Kızılay District Office. The Kızılay District Office is at fault for the infection of the child. This appeared from the sworn statements given on 8 June 1998 by Prof. Dr. Hakkı Bahar, who works at the Dokuz Eylül University School of Medicine, Department of Biology and Clinical Microbiology. Hakkı Bahar, who is a specialist on this subject, is the only witness of the Red Crescent Directorate General and holds an academic title of “professor”. In his statements, he submitted that AIDS was a disease which could be detected with certainty by a special test but that, because it was very expensive, it was not employed. Bearing in mind that it was possible to detect HIV with sufficient certainty and that the Kızılay did not employ the test in question, because it was costly, then it should be held responsible for the infection of [the child]. The Kızılay has to bear the consequences of this [negligence]. It cannot escape this [responsibility]. Either it has to employ the test which determines with certainty AIDS, or it fails to do the test and assumes responsibility for providing blood which was infected with AIDS.", "Moreover, the Kızılay is at fault for the following reason: As is clear from the statements of the doctors indicated by the Red Crescent and, following the contamination of the plaintiffs'child, the Ministry of Health issued a circular on 3 January 1997 and required the questioning of donors. It thus follows that this circular had to be issued because no such questioning took place at all previously or was not done properly.", "Even assuming for a moment that the the Kızılay was not at fault in this incident, it still has strict liability ( kusursuz sorumluluk ). This is the very requirement of justice.", "Yiğit Turhan Oyal was infected with HIV at a very young age because of the blood given by the the Kızılay. He caught AIDS, which is, together with cancer, one of the most dangerous diseases of our age. It is unnecessary to explain how evil and fatal this disease is. It is highly unlikely that little Yiğit will survive this disease; most probably he will lose his life. Even if he survives, he will live with this disease throughout his lifetime and everybody will avoid him. Strictly speaking, by having been infected with this disease, Yiğit has become a social outcast. He should not have sexual intercourse and should not get married during his lifetime. It is impossible for a living person to endure this. Furthermore, Yiğit should be taken care of very well. It is impossible to put into words how father Nazif Oyal and mother Neşe Oyal suffer from sorrow because of Yiğit's infection with this disease. In view of the foregoing, the court considers that the award of TRL 10,000,000,000 for each plaintiff in respect of non-pecuniary damages appears to be low. In fact, the sorrow and pain suffered by the plaintiffs cannot be compensated even if quadrillions were awarded. As noted above, the amount of compensation awarded is an insignificant one and merely aims at lessening their pain to some extent. Having regard to the fact that today compensation of three to five billion Turkish liras is awarded in a defamation case and that the amount in question would not even suffice to buy a car by the current prices of the day, it is obvious that the increase of awards is inevitable. It is considered that today is the time to increase compensation to a satisfactory level. For this reason, the determination of the amount in this case, albeit insignificant, was in line with this view.", "Notwithstanding the above, I should like to stress the following: the fact that an aid organisation like the Kızılay ... chose to pursue all avenues with full strength in order to avoid compensating Yiğit, instead of redressing his suffering, is thought provoking ... ”", "22. On 9 February 1999 the Court of Cassation upheld the judgment and stated the following:", "“ ... The case concerns the payment of damages incurred as a result of the tortious act of the defendant. In order to hold the defendant liable for the alleged act, it should be established that the defendant was at fault, that the plaintiff incurred damage as a result of the tortious act and that there was a causal link between the act and the damage suffered. There is no dispute between the parties that the damage in question occurred as a result of the blood used by [Yiğit] and that such an act is unlawful. Again, it is also undisputed that the plaintiffs purchased the blood, which was used for the treatment of Yiğit, from the the Kızılay Izmir District office and that the blood was infected HIV positive.", "The focal point of the dispute is whether the Kızılay Directorate General is at fault ... It is a known fact that a foundation such as the Kızılay has a noteworthy prominence in meeting the need for blood and is worthy of credence on account of this vocation. In other words, there is an assumption that the blood obtained from the defendant meets expectations. However, it appeared that the blood obtained and used [in the present case] was unclean and so malignant that there was no possibility of purifying it. The fact that the [donor] was the bearer of the known virus cannot absolve the defendant from liability. The defendant should have subjected such an important and vital substance to all necessary tests and screening using the necessary technology in accordance with the purpose of its use and the importance of that substance. Nevertheless it appears that the blood in question was not subjected to the requisite tests available in today's technology. Furthermore, bearing in mind the particular circumstances of the case, witness statements have no bearing on the establishment of the lack of fault on the part of the defendant. In other words, it cannot be concluded by witness statements that the defendant was not at fault. In the instant case, it was not alleged that the defendant acted deliberately. Nor was it implied. The defendant did not wish such an outcome in the present case. However, the defendant did not display due attention and diligence in order to avoid the impugned result.", "Turning to the defendant's contention that the amount awarded in respect of non ‑ pecuniary damage was excessive, ... [I]t should be noted that the present and future life of the child, his mother and father have become dramatically insufferable. All segments of society will now avoid having any kind of social or physical contact with these people. Thus, it is apparent that the physical, social and personal values of all the plaintiffs, especially those of the child, shall be under attack during their lives. Having regard to the foregoing and particularly to the rule under Article 49 of the Code of Obligations which stipulates'... parties'social and economic conditions should also be taken into account ...', as well as to the current purchase value of money, the court concludes that the amount awarded in respect of non-pecuniary damage was not excessive. In this connection, when determining an amount for non-pecuniary damage, the amount in question should be satisfactory for the suffering party and should have a dissuasive effect for the harming party. Therefore, the defendant's objections on this part of the case must be dismissed ... ”", "23. On 24 February 1999 the Kızılay paid a total amount of TRL 54,930,703,000 to the applicants, to cover the non ‑ pecuniary damage awarded by the court and the statutory interest applied to that sum.", "D. Administrative proceedings", "24. On 13 October 1998 the applicants initiated proceedings against the Ministry of Health, requesting non-pecuniary damage.", "25. On 20 November 1998 the Izmir Administrative Court rejected the case on the ground that the judgment of the Izmir First Instance Court which had issued a non-jurisdiction decision in respect of the proceedings concerning the Ministry of Health had been pending before the Court of Cassation. On 8 February 1999 the applicants appealed against this decision.", "26. On 7 May 2001 the Supreme Administrative Court quashed the decision and remitted the case to the Izmir Administrative Court for examination on the ground that the proceedings concerning the Ministry of Health must have been considered to have become final, given that the Ministry of Health had not appealed against the Izmir First Instance Court's judgment.", "27. On 14 July 2003 the Izmir Administrative Court refused the applicants'compensation claims. Referring to the Izmir First Instance Court's judgment, the Izmir Administrative Court reiterated that the Kızılay and the Ministry of Health were both liable for the first applicant's HIV infection. The court added, however, that the purpose of awarding non ‑ pecuniary damage was not to provide full restitution and the award of non-pecuniary damage twice for the same incident would have resulted in unjust enrichment.", "28. On 3 October 2003 the applicants appealed.", "29. On 31 March 2006 the Supreme Administrative Court quashed the judgment of 14 July 2003, holding that there was no provision in domestic law which could have prevented the administration from being held liable jointly with other real or corporate bodies.", "30. On 13 March 2007 the Supreme Administrative Court dismissed the Ministry of Health's rectification request against the above decision.", "31. In a judgment dated 7 June 2007, the Izmir Administrative Court held that the Ministry of Health personnel had been negligent in the performance of their duties. The court thus awarded the applicants TRL 30,000 plus interest at the statutory rate running from the date on which the proceedings had been initiated, namely 19 December 1997. Both the applicants and the Ministry of Health appealed against the judgment. The applicants challenged the failure of the court to order the defendant to pay the legal fees, whereas the Ministry of Health challenged the outcome of the case.", "32. On 26 December 2007 the Supreme Administrative Court dismissed the Ministry of Interior's appeal but partly quashed the judgment insofar as it concerned the fees. The parties did not inform the Court about the outcome of these proceedings.", "33. On 30 April 2008 the Ministry of Health paid 159,369.49 New Turkish Liras to the applicants.", "E. Award of a scholarship", "34. On 16 February 2005 the newly appointed Administrative Board of the Kızılay presented their apologies to the applicants and decided to give a scholarship to the first applicant in order to contribute towards his educational costs. A delegation of board members visited the applicants and told them that the medical expenses of the first applicant would also be paid by the Kızılay.", "F. Current condition of the first applicant and his family", "35. According to the information given by the applicants, the Kızılay rejected the applicants'claim for treatment and medical costs which amounted to TRL 3,000 (approximately EUR 1,340) and EUR 5,469, respectively, per month. The Ministry of Health also rejected their request for payment of these expenses.", "36. The green card [1] issued by the Governorship of Izmir was cancelled right after the announcement of the judgments ordering the administration to pay compensation to the applicants.", "37. The compensation awarded by the civil and administrative courts covered only one year's medical treatment expenses and did not suffice to pay the costs of medication used by the first applicant.", "38. The first applicant was not admitted to any school because of his condition and reactions from families of other pupils. He thus started his education at a hospital. Following public pressure and negotiations with the National Education Directorate, he was ultimately admitted to a public school. Yet he has no close friends and suffers from stammering. Every week he sees a psychologist. Upon the latter's advice, he attends drama and painting courses.", "39. The third applicant's (the father) health has been severely affected as a result of reactions from parents of other children and the school administration's refusal to admit his son to school. Currently he is unable to work and provide any income for the family.", "40. The family is in serious economic difficulty and is trying to pay the first applicant's medical expenses with the help of family friends. Meanwhile, although some health associations offered help, they wanted to test some medications on the first applicant, which the family refused.", "III. COUNCIL OF EUROPE", "48. Between 1980 and 1988, the Committee of Ministers of the Council of Europe adopted a number of recommendations aimed at ensuring the adoption of common rules in the health field. In the below-mentioned Recommendations, the Committee of Ministers drew Member States'attention to the growing importance of a new and severe health hazard, namely AIDS, which was caused by an infectious agent transmissible by blood and blood products, and invited them to adopt a number of measures to prevent the spread of this infectious disease. These Recommendations were as follows :", "– Recommendation No. R (80) 5, dated 30 April 1980, on blood products for the treatment of haemophiliacs;", "– Recommendation No. R (81) 14, dated 11 September 1981, on preventing the transmission of infectious diseases in the international transfer of blood, its components and derivatives;", "– Recommendation No. R (84) 6 on the prevention of the transmission of malaria by blood transfusion;", "– Recommendation No. R (83) on preventing the possible transmission of AIDS from affected blood donors to patients receiving blood and blood products;", "– Recommendation 985 (1984) on the supply and utilisation of human blood and blood products; and", "– Recommendation No. R (85) 12 on the screening of blood donors for the presence of AIDS Markers." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "41 Article 4 of the Law on Blood and Blood Products (Law no. 2857 dated 25 June 1983) provides:", "“The powers and duties of the Ministry of Health and Social Welfare ... are as follows:", "...", "( c) Inspection and supervision of real and corporate entities which deal with blood and blood products ... ”", "42. Article 23 of the Regulation on the Blood and Blood Products (dated 25 November 1983) reads :", "“ The following blood screening tests shall be conducted; blood type, Rh, compatibility and cross-match, VDRL tests, Hepatitis B, malaria parasite ... ”", "43. Common provisions in the Law on Blood and Blood Productions and the Regulation on Blood and Blood Products are as follows:", "Article 7 and Article 38 respectively", "“All entities which deal with blood and blood products shall be inspected by the Ministry of Health and Social Welfare at least twice a year. Defects found during inspections shall immediately be remedied by the relevant entities. In the event the same defects are found to exist during the following inspection, the respondent individuals shall be subject to administrative and criminal proceedings.”", "44. On 18 August 1983 the Ministry of Health sent a letter to all governors, for distribution to hospitals, blood centres and public institutions, informing them about AIDS and the measures to be taken to prevent the spread of this disease. The Ministry stressed that particular vigilance must be shown when choosing blood donors. In particular, it required that blood donors be subjected to a medical examination prior to giving blood and that their blood be refused in case any symptoms of HIV AIDS were detected.", "45. By a letter dated 21 November 1985, the Ministry of Health informed the governors that all HIV AIDS cases must be reported to the health authorities. It noted that persons suspected of having HIV AIDS must be medically examined, and their blood, bodily fluids and all other relevant substances subjected to the requisite tests.", "46. On 4 February 1987 the Ministry of Health issued a circular to all governors (circular no. 1141), for distribution to public and private hospitals and clinics as well as to the Kızılay, for prevention of the spread of the HIV AIDS disease. The Ministry noted in this circular that HIV AIDS could only be transmitted through sexual intercourse, blood transfusion or multiple use of a syringe. In this connection, the Ministry stated that the anti titre test was the most effective way of diagnosing HIV AIDS. This could only be done by the ELISA method. It stressed that, prior to blood transfusions, the requisite ELISA tests must be carried out. To that end, all hospitals should be equipped with facilities for carrying out ELISA tests on blood given by donors. The hospitals which did not have such facilities should send blood samples to the hospitals which had blood centres.", "47. By a circular dated 1 April 1992, the Ministry of Health required all blood centres and stations to conduct VDRL, HBsAg, AIDS and malaria tests on all blood and blood products. It stressed that no blood transfusions should be carried out if the aforementioned tests had not been conducted.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "49. The applicants complained that the State authorities had failed in their positive obligation to protect the right to life of the first applicant as a result of his infection with the HIV virus by blood supplied by the Kızılay, and that no effective investigation had been conducted into their criminal complaints. They invoked Article 2 of the Convention, which reads as follows:", "“1. Everyone's right to life shall be protected by law ... ”", "50. The Government contested that argument.", "A. Admissibility", "51. The Government submitted that Article 2 of the Convention did not apply in the circumstances of the present case. They maintained that the applicants were no longer victims of a violation of the aforementioned provision following the redress provided by the authorities, within the meaning of Article 34 of the Convention. They further noted that in the case of D. v. the United Kingdom (application no. 30240/96, 2 May 1997, Reports of Judgments and Decisions 1997 ‑ III), which concerned the attempted expulsion of an AIDS sufferer to St. Kitts where he would have been deprived of the medical treatment he was receiving in the United Kingdom, the Court had examined the complaints of the applicant under Article 3 of the Convention rather than Article 2.", "52. The applicants claimed that Article 2 of the Convention covered not only incidents which resulted in the death of the victim, but also cases where the victim suffered life-threatening, serious injury. Bearing in mind that the first applicant's disease was not curable, the State was responsible for violation of the right to life of the first applicant. They thus claimed that Article 2 of the Convention applied in the present case.", "53. The Court reiterates that Article 2 does not solely concern deaths resulting from the use of unjustified force by agents of the State but also, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction (see, for example, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998 ‑ III, and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 54, ECHR 2002-II).", "54. Those principles apply in the public-health sphere too. The aforementioned positive obligations therefore require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients'lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see, among authorities, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002 ‑ I, and Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000 ‑ V).", "55. Furthermore, on a number of occasions the Court has examined complaints raised under Article 2 of the Convention where the victims had suffered serious injuries as a result of illegal acts perpetrated against them and has accepted that the aforementioned provision could apply in exceptional circumstances even if the victims had not died (see Osman v. the United Kingdom, 28 October 1998, Reports 1998 ‑ VIII; Yaşa v. Turkey, 2 September 1998, Reports 1998 ‑ VI; Makaratzis v. Greece [GC], no. 50385/99, § 51, ECHR 2004 ‑ XI; and G.N. and Others v. Italy, no. 43134/05, § 69, 1 December 2009 ).", "56. Likewise, in the above-cited L.C.B. case, where the applicant had suffered from leukaemia diminishing her chances of survival, and in the case of Karchen and Others v. France ((dec.), no. 5722/04, 4 March 2008), where the first applicant had been infected with the HIV virus which put his life in danger, the Court held that Article 2 of the Convention was applicable.", "57. In view of the foregoing, the Court sees no reason to depart from its established case-law and considers that Article 2 of the Convention applies in the circumstances of the present case.", "58. As regards the Government's reference to the case of D. v. the United Kingdom (cited above), where the applicant's complaints under Article 2 had been examined under Article 3 of the Convention, the Court notes that the circumstances of that case are fundamentally different from the present case. In the case of D. the Court examined the respondent Government's responsibility stemming from the attempted expulsion of the applicant to a third country, where he would be deprived of the medical treatment he had been receiving in the United Kingdom, from the standpoint of Article 3 of the Convention in accordance with its established practice in expulsion cases (see, among many others, Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 56-78, ECHR 2005 ‑ I). In the instant case, however, the applicants'complaints must be examined under Article 2 of the Convention since they pertain to the alleged failure of the State authorities to fulfil their positive obligation to protect life by not taking preventive measures against the spread of HIV through blood transfusions and by not conducting an effective investigation against those responsible for the infection of the first applicant.", "59. Turning to the Government's submission concerning the victim status of the applicants, the Court notes that this question is inextricably linked to the merits of the case, as it needs to be ascertained whether the national authorities responded to the applicants'grievances in accordance with their positive obligation under Article 2. Accordingly, the Court joins this question to the merits and will examine it under Article 2 of the Convention (see Codarcea v. Romania, no. 31675/04, § 100, 2 June 2009).", "60. Finally, the Court notes that the Government implicitly recognised the locus standi of the second and third applicants in accordance with the rulings of the national courts which accepted their standing under Turkish law as parents of the first applicant and delivered judgments favourable to them (see, a contrario, Karchen and Others, cited above).", "61. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties'submissions", "( a) The applicants", "62. The applicants alleged that the national authorities had not protected the right to life of the first applicant as a result of their failure to give sufficient training to the health personnel concerned and to supervise and inspect their work. In this connection, they noted that the health personnel at the Kızılay had shown gross negligence by not requiring the blood donors to fill out questionnaires and by not screening their blood with sufficient care. The health personnel at the hospital, where the blood transfusion had been conducted, also failed to do the necessary tests on the blood given to the first applicant, considering that the test in question was very expensive.", "63. The applicants maintained that no meaningful investigation had been carried out into their complaints, that the proceedings before the administrative courts had lasted more than twelve years and that the compensation awarded by the civil and administrative courts had not even covered the costs of medication of the first applicant. They emphasised that the family was in serious economic difficulty and unable to cover all the expenses for medication and treatment of the first applicant.", "( b) The Government", "64. The Government submitted that the legal remedies at the domestic level had afforded appropriate redress for the applicants'complaints under Article 2 of the Convention. They further asserted that the national authorities had conducted an effective investigation into the applicants'complaints. In their opinion, both the civil and administrative courts had taken a protective approach towards the applicants when establishing their victim status and granting them redress for their grievances. The courts had awarded the applicants sufficient compensation and these judgments had been executed by the authorities. They added that, following the impugned incident, the Kızılay had decided to give the first applicant a scholarship in order to support his education.", "65. As regards the applicants'allegations that the criminal investigation was ineffective, the Government contended that the Ankara Chief Public Prosecutor's decision of non-prosecution in relation to the President of the Kızılay and the Minister of Health was compatible with the principle that the criminal liability should be personal.", "2. The Court's assessment", "( a ) Applicable principles", "66. The Court reiterates that, even if the Convention does not as such guarantee a right to have criminal proceedings instituted against third parties (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 ‑ I), the effective judicial system required by Article 2 may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence, the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages. Disciplinary measures may also be envisaged (see Calvelli and Ciglio, cited above, § 51; Lazarini and Giacci v. Italy ( dec.), no. 53749/00, 7 November 2002; Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 ‑ VIII; and G.N. and Others, cited above, § 82 ).", "( b) Application of the above principles in the present case", "67. The Court notes that the criminal investigation into the applicants'complaints concerning negligence on the part of the health personnel concerned, the Director General of the Kızılay and the Minister of Health was terminated on the ground that there was no fault directly attributable to these persons (see paragraphs 14 and 16 above).", "68. In view of the above-cited principles indicating that Article 2 of the Convention does not necessarily require a criminal ‑ law remedy in cases of unintentional infringement of the right to life or to personal integrity, such as the present case involving medical negligence, the Court must ascertain whether the Turkish legal system afforded the applicants sufficient and appropriate civil redress in order to satisfy the positive obligation under the aforementioned provision.", "69. In this context, the Court notes that both the civil and administrative courts ruled that the Kızılay was at fault for supplying HIV-infected blood to the first applicant and that the Ministry of Health was also responsible as a result of the negligence of its personnel in the performance of their duties. Both institutions had therefore been held liable for the damage caused to the applicants (see paragraphs 21, 22 and 31 above). Furthermore, the Ankara Civil Court of First Instance established that the HIV infected blood given to the first applicant had not been detected by the health personnel because they had not done the requisite test on the blood in question, considering that it would be too costly. The court found moreover that, prior to the impugned incident, there was no regulation requiring blood donors to give information about their sexual history which could help determine their eligibility to give blood. On account of these deficiencies, and the defendants'failure to comply with the already existing regulations, the civil and administrative courts awarded the applicants TRL 54,930,703,000 and 159,369.49 New Turkish Liras, respectively, to cover non-pecuniary damages and the statutory interest applied to those sums.", "70. It thus appears that the applicants had access to the civil and administrative courts which enabled the establishment of the liability of those responsible for the infection of the first applicant with the HIV virus and the award of civil redress, in an order for damages. However, as it appears from the parties'submissions, a crucial question in the instant case is whether the redress in question was appropriate and sufficient.", "71. In this connection, the Court notes that the non-pecuniary damage awards received by the applicants only covered one year's treatment and medication for the first applicant (see paragraph 37 above). Thus the family was left in debt and poverty and unable to meet the high costs of the continued treatment and medication amounting to a monthly cost of almost EUR 6,800, which was not contested by the Government (see paragraphs 35, 39 and 40 above). Despite the promises made by the authorities to pay the medical expenses of the first applicant, the applicants'requests to that effect were rejected by the Kızılay and the Ministry of Health (Ibid.). It is striking that the green card given to the applicants was withdrawn immediately after the announcement of the judgments ordering the defendants to pay compensation to the applicants (see paragraph 36 above). It follows that the applicants were left on their own to pay the high costs of treatment and medication for the first applicant.", "72. In view of the above, while the Court acknowledges the sensitive and positive approach adopted by the national courts in determining the responsibility of the Kızılay and the Ministry of Health and in ordering them to pay damages to the applicants, it considers that the most appropriate remedy in the circumstances would have been to have ordered the defendants, in addition to the payment of non-pecuniary damages, to pay for the treatment and medication expenses of the first applicant during his lifetime. The Court concludes therefore that the redress offered to the applicants was far from satisfactory for the purposes of the positive obligation under Article 2 of the Convention.", "73. Accordingly, the Court considers that the applicants can still claim to be victims of a violation of their rights under Article 2 within the meaning of Article 34 of the Convention. It follows that the Government's objection on this point must be dismissed (see paragraph 59 above).", "74. As regards the complaint pertaining to the length of the proceedings before the administrative courts, the Court recalls that the requirements of Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory. It must also operate effectively in practice, which requires a prompt examination of the case without unnecessary delay (see Calvelli and Ciglio, cited above, § 53; Lazzarini and Ghiacci v. Italy (dec.), no. 53749/00, 7 November 2002; Byrzykowski v. Poland, no. 11562/05, § 117, 27 June 2006; and G.N. and Others, cited above, § 97 ).", "75. On that basis, the Court observes that, despite the due diligence shown by the civil courts in the handling of the applicants'compensation claims within a very short time (approximately one year and two months), the administrative court proceedings aimed at determining the liability of the Ministry of Health lasted nine years, four months and seventeen days (see paragraphs 24-32 above). Having regard to the latter delay, it cannot be said that the administrative courts complied with the requirements of promptness and reasonable expedition implicit in this context.", "76. In that connection, the Court recalls that, apart from the concern for the respect of the rights inherent in Article 2 of the Convention in each individual case, more general considerations also call for a prompt examination of cases concerning medical negligence in a hospital setting. Knowledge of the facts and of possible errors committed in the course of medical care is essential to enable the institutions and medical staff concerned to remedy the potential deficiencies and prevent similar errors. The prompt examination of such cases is therefore important for the safety of users of all health services (see Šilih v. Slovenia [GC], no. 71463/01, § 196, 9 April 2009 ).", "77. In view of the foregoing considerations, the Court concludes that there has been a violation of Article 2 of the Convention.", "78. Finally, the Court is of the view that it is appropriate to further examine the “ reasonableness ” of the length of the administrative proceedings in question from the standpoint of Article 6 § 1 of the Convention below.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND 13 OF THE CONVENTION", "79. The applicants complained that the length of the administrative court proceedings had contravened the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention. They also alleged under Article 13 of the Convention that there were no effective remedies in domestic law to accelerate the proceedings.", "Article 6 § 1 reads as follows:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”", "Article 13 provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "80. The Government contested that argument.", "81. The period to be taken into consideration began on 13 October 1998 and ended on 30 April 2008. It thus lasted approximately nine years, four months and seventeen days for two levels of jurisdiction.", "A. Admissibility", "82. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "83. The applicants alleged that the length of the proceedings before the administrative courts was excessive. They further noted that the Izmir Administrative Court's judgment had not been executed within a reasonable time, although they had informed the authorities that the compensation in question would be used for the treatment and medication of the first applicant.", "84. The Government submitted that the alleged delay had been caused by the difficulties pertaining to the jurisdictional questions, the nature of the dispute and the applicants'appeal against the First Instance Court's judgment in relation to the legal fees.", "85. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 ‑ VII; X v. France, 31 March 1992, § 32, Series A no. 234 ‑ C; Vallée v. France, 26 April 1994, § 34, Series A no. 289 ‑ A; Karakaya v. France, 26 August 1994, § 30, Series A no. 289 ‑ B; Pailot v. France, 22 April 1998, § 61, Reports 1998 ‑ II; Richard v. France, 22 April 1998, § 57, Reports 1998 ‑ II; Leterme v. France, 29 April 1998, § 64, Reports 1998 ‑ III; and Henra v. France, 29 April 1998, § 61, Reports 1998 ‑ II ).", "86. The Court considers that the case was not at all complex as the negligence and responsibility of the authorities in the infection of the first applicant had already been established by the Ankara Civil Court of First Instance and the Court of Cassation by judgments dated 13 July 1998 and 9 February 1999, respectively.", "87. As regards the conduct of the applicants, the Court observes that there is no indication in the case file that the applicants noticeably contributed to the length of the proceedings. The fact that they exercised their right to lodge an appeal against the First Instance Court's judgment in relation to the legal fees cannot be taken as a factor which caused significant delay in the proceedings.", "88. As to the conduct of the authorities, the Court notes that several periods appear to have been abnormally long. In this connection, it observes that the administrative courts took almost two and a half years to resolve the jurisdictional question (see paragraphs 25 and 26 above). The Izmir Administrative Court delivered its first judgment more than two years after the case had been remitted to it for examination (see paragraphs 26 and 27 above). Finally, it took the Supreme Administrative Court two and a half years to examine the appeal lodged by the applicants against the First Instance Court's judgment of 14 July 2003 (see paragraphs 27-29 above).", "89. Notwithstanding the above findings, the Court observes that the main issue in the present case was not whether there had been unreasonable delays imputable to the administrative courts hearing the applicants'case, but whether those courts had acted with “exceptional diligence” in view of the first applicant's condition and the gravity of the overall situation. Furthermore, what was at stake in the proceedings complained of was of crucial importance to the applicants in view of the disease from which the first applicant is suffering (see X v. France, Vallée, Karakaya, Pailot, Richard, Leterme and Henra judgments cited above, § 47, § 47, § 43, § 68, § 64, § 68, and § 68 respectively).", "90. Having regard to the foregoing, the Court considers that in the instant case the length of the proceedings before the administrative courts was excessive and failed to meet the “reasonable time” requirement.", "91. The applicants further complained of a lack of an effective domestic remedy to accelerate the proceedings. The Government disputed this complaint.", "92. The Court recalls its earlier finding that the Turkish legal system did not provide an effective remedy whereby the length of the proceedings could be successfully challenged (see Tendik and Others v. Turkey, no. 23188/02, §§ 3 4-39, 22 December 2005). It finds no reason to reach a different conclusion in the instant case.", "93. There has accordingly been a breach of Articles 6 § 1 and 13 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "94. Lastly, relying on Article 6 § 1 of the Convention the applicants complained that they had been denied a fair hearing by an independent and impartial tribunal. Under Article 13 of the Convention they maintained that they had not had an effective remedy in respect of their complaints under Article 2.", "95. Having examined the material submitted to it, the Court considers that there is no appearance of a violation of these provisions.", "96. It follows that this part of the application is manifestly ill ‑ founded and must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "97. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "1. Pecuniary damage", "98. The applicants claimed TRL 1,913,248 (approximately EUR 852,128) in respect of pecuniary damage. The applicants explained that this amount consisted of the following items:", "– EUR 328,140 for medication costs which had already been incurred by the applicants up until September 2008;", "– TRL 480,000 for the costs that had already been incurred and will be incurred for forty years for the treatment of the first applicant. This amount includes the travel and accommodation expenses of the applicants who have to travel to Ankara every month for the treatment;", "– TRL 213,560 for the deprivation of future income of the first applicant;", "– TRL 259,874 for the costs of employing a house keeper as the second applicant has to work and is unable to do the household work;", "– TRL 142,999 for the deprivation of income of the second applicant (mother);", "– TRL 262,361 for the deprivation of future income of the third applicant (father) who is currently unable to work.", "99. The applicants submitted a detailed report about the medication consumed by the first applicant and the price of each medicine. They also furnished the Court with an expert report in support of the remaining claims.", "100. The Government submitted that the applicants had failed to substantiate their claims in respect of the pecuniary damage. In this connection they emphasised that the domestic courts had already awarded the applicants sufficient compensation for the damage incurred by them. They thus asked the Court not to make any award under this head.", "101. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention. In view of its above conclusion, it finds that there is a direct causal link between the violation found under Article 2 of the Convention and the damage incurred by the applicants. Having regard to the documents in its possession and to the fact that the authorities refused to pay the costs of treatment and medication for the first applicant, the Court considers it reasonable to award the applicants, jointly, EUR 3 00, 00 0 in respect of past pecuniary damage, plus any tax that may be chargeable on that amount.", "102. The Court considers that, in addition to the award made above, the Government must provide free and full medical cover for the first applicant during his lifetime.", "2. Non-pecuniary damage", "103. The applicants claimed EUR 2,000,000 in respect of non ‑ pecuniary damage. They noted that this amount consisted of the following: EUR 1,000,000 for the first applicant and EUR 500,000 for each of the second and third applicants.", "104. The Government submitted that the amount claimed was excessive and unjustified. They further contended that any award to be made for non ‑ pecuniary damage should not be a source of enrichment.", "105. The Court has found a violation of Articles 2, 6 and 13 of the Convention on account of the authorities'failure to fulfil their positive obligation to protect the right to life of the first applicant and of the excessive length of the administrative court proceedings as well as lack of an effective remedy to accelerate the proceedings. Bearing in mind the emotional distress and anguish they endured, the Court accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations.", "106. As regards the Government's contention that the award to be made under this head should not be a source of enrichment, the Court recalls the considerations of the Ankara Civil Court of First Instance that the sorrow and pain suffered by the [applicants] cannot be compensated even if huge amounts were awarded (see paragraph 21 above).", "107. In view of the above, ruling on an equitable basis, the Court awards the applicants, jointly, a total sum of EUR 78 ,000, plus any tax that may be chargeable thereon.", "B. Costs and expenses", "108. The applicants did not specify a sum in respect of the costs and expenses that which have incurred. However, they submitted a schedule of legal work carried out by their representative before the domestic courts and for the presentation of their case to the European Court.", "109. The Government asked the Court to dismiss the applicants'claims for costs and expenses.", "110. The Court has consistently held that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred, and were reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see, for example, Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002, and Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003 ‑ VIII).", "111. In the present case, although the applicants did not claim a specific sum, they submitted a time schedule indicating the time spent for the preparation and submission of their application and asked the Court to make an award under this head. Considering that the applicants must have incurred costs and expenses for the presentation of their case which involves complex issues of fact and legal questions, the Court finds it reasonable to award EUR 3 ,000 to them, jointly, under this head.", "C. Default interest", "112. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "5. The present application was introduced by Mrs Patricia Reynolds, a British national born in 1935 who lived in Hebden Bridge. Following the introduction of the application, Mrs Reynolds died and Ms Catherine King (her daughter) continued the case on her behalf. The Court has referred below to Mrs Reynolds as the applicant.", "6. The applicant’s son, David Reynolds, was born in 1969 and he died on 16 March 2005. The present application relates to his death.", "A. The circumstances of the case", "7. The facts of the case, as submitted by the applicant, may be summarised as follows.", "1. Mr Reynolds’ illness and death", "8. Mr Reynolds was diagnosed with schizophrenia in 1998. He was treated by a mental health team which was operated by the National Health Service Trust (“the NHS Trust”) and which assigned Mr Stephens as Mr Reynold’s Care Co-ordinator. On 16 March 2005 Mr Reynolds contacted the applicant and Mr Stephens: he was hearing voices ordering him to kill himself. The applicant and Mr Stephens went to Mr Reynolds’s home.", "9. Mr Stephens contacted the Crisis Resolution Home Treatment Team (“CRHTT”) informing it that Mr Reynolds might need to be hospitalised. The CRHTT is a community-based team of mental health professionals operated by the NHS Trust from the psychiatric unit of Calderdale Royal Hospital (“the Hospital”). Mr Stephens was told that no beds were available but that Mr Reynolds could have a crisis bed at the Intensive Support Moving On Scheme Unit (“the ISMOS Unit”). The local Council is responsible for the Unit and it is located in a building of which the Council is the occupier for the purposes of the Occupiers Liability Act 1957 (“the 1957 Act”). It is staffed by social workers experienced in the care of mental health patients and it provides an alternative to in-patient care where the risk assessment renders this appropriate. ISMOS Unit patients are not subjected to formal monitoring but staff regularly check on them and have custody of their medication. While patients are voluntary, cameras monitor the outside of the building so that the ISMOS Unit is alerted if a patient leaves.", "10. On the way to the ISMOS Unit Mr Reynolds told Mr Stephens that he found the ‘voices’ so distressing that he felt like killing himself. Mr Stephens therefore took Mr Reynolds to the Hospital (run by the Trust) for a clinical assessment. This was carried out by a psychiatrist of the CRHTT assisted by a psychiatric nurse and Mr Stephens. Mr Reynolds was assessed to be a low suicide risk. He had once again reduced his medication in order to drink and socialise at the weekend. His psychotic symptoms had therefore returned but he had stabilised rapidly as he had already re-taken his medication that morning. The voices had diminished and were not troubling him any more although he was terrified of their returning. During the assessment, he confirmed that he did not want to kill himself. He had no history of self-harm/attempted suicide, he had not acted on his earlier hallucinations and, even when having hallucinations, he had sought help.", "11. Since it was agreed that Mr Reynolds needed a safe and supported environment, he was admitted to the ISMOS Unit as a voluntary in-patient. He was allocated one of the crisis rooms across from the staff room on the sixth floor. During dinner he seemed withdrawn and unwell. Later that evening, he was found wandering outside the building but he returned with staff to his room. At 22.00 there was a change of shift, the new staff were briefed and Mr Reynolds appeared more relaxed and spoke with them.", "12. Mr Reynolds was due his medication at 22.45. At around 22.30 he broke a window in his room and fell from the sixth floor to his death.", "2. The internal investigation", "13. On 26 May 2005 an internal investigation into Mr Reynolds’ death was completed by the NHS. The resulting Report recommended, inter alia, that the bedroom windows in the crisis rooms at the ISMOS Unit be reinforced. On 20 May 2005 the applicant’s daughter wrote a letter of complaint to the Trust. On 20 June 2005 the Trust responded stating that it had reviewed the information available on the relevant date but that there had been no indication that Mr Reynolds would harm himself.", "3. The Inquest", "14. The applicant could not afford legal representation for the Inquest. She considered applying to the Legal Services Commission for legal aid and, following receipt of the Coroner’s views as regards the two criteria applied by the Commission in deciding on a grant of legal aid, the applicant decided not to pursue a claim.", "15. On 22 March 2005 the Inquest was opened and adjourned by the Coroner. It resumed on 21 July 2005. The applicant attended with two daughters including Ms King. The Coroner sat without a jury. He explained that the Inquest was to find the answers to four limited factual questions: who was the deceased and how, where and when did the death come about. “How” was limited to “how the cause of death arose” since an Inquest was not an opportunity to examine the broad circumstances in which the death occurred so that all questions touching thereon would be excluded as would any question of civil or criminal liability.", "16. Oral evidence was given by, inter alia, the psychiatrist and the psychiatric nurse who assessed Mr Reynolds; by the relevant four members of staff at the ISMOS Unit; by the eye witness who saw him step through the broken window; and by the team leader of the CRHTT. The applicant gave evidence: she considered that her son had not attempted to commit suicide but rather had wished to go home and had not realised he was on the sixth floor. The applicant submitted questions to the Coroner prior to the Inquest and she and her daughters put questions to witnesses during the Inquest.", "17. The Inquisition Form recorded that Mr Reynolds had been placed in the crisis room for a few days for monitoring; that just a few hours later he broke a window, climbed through it and walked off the window sill; and that he sustained fatal injuries as a result of the fall and was pronounced dead that day. The Coroner’s conclusion as to death was an “Open verdict”, he explaining that, while those with schizophrenia presented a high incidence of suicide, there was insufficient evidence that Mr Reynolds intended to kill himself.", "18. Since the Coroner was concerned about a psychiatric facility on a sixth floor, in July 2005 he reported the incident to the NHS Trust under Rule 43 of the Coroners Rules 1984. By letter of 11 October 2005 the NHS Trust informed the Coroner that, since an ISMOS Unit was used when the risk was low, its location on the sixth floor was not unusual. However, the windows had been reinforced and, in the longer term, there were plans to re-locate the ISMOS Unit to a two storey dwelling.", "4. The applicant’s claim for compensation", "19. The applicant obtained legal aid and issued an action for damages under section 7 of the Human Rights Act 1998 (HRA”) against the NHS Trust and the Council, arguing that they had failed to adequately discharge their duties to Mr Reynolds in breach of Articles 2, 3 and 8 of the Convention in that they had failed to ensure his appropriate placement, failed to ensure that the ISMOS Unit was safe and failed adequately to assess the suicide risk or to admit him for in-patient care. An expert report obtained by the applicant from a consultant psychiatrist for the proceedings (although not served since the action was later struck out, see below) considered that the care of Mr Reynolds fell below the required standard.", "20. On 21 December 2006, the High Court decided the case of Savage ν South Essex Partnership NHS Foundation Trust ([2006] EWHC 3562, paragraphs 33-37 below).", "21. The NHS Trust and the Council served defences in March 2007. The Trust accepted that it owed a common law duty to take reasonable steps to try to prevent Mr Reynolds from taking his own life. The Council accepted that it owed a common law duty of care not to expose Mr Reynolds to a reasonably foreseeable risk of injury or harm on the premises as well as a common duty of care under the 1957 Act. However, both defendants argued that the applicant had no cause of action and that the case should be struck out since the High Court judgment in the Savage case had provided that one had to establish gross negligence of a kind sufficient to sustain a charge of manslaughter in order to establish a breach of Article 2 of the Convention. The applicant requested that her action be adjourned pending the appeals in the Savage case.", "22. On 13 July 2007 the County Court delivered its judgment striking out the applicant’s case pursuant to Rule 3.4 of the Civil Procedure Rules holding that there were no reasonable grounds for bringing the claim. The County Court noted that the High Court in the Savage case had accepted that, where the allegations were of clinical negligence, the measure of the duty owed to both voluntary and involuntary patients was as outlined in Powell v. the United Kingdom ((dec.), no. 45305/99, ECHR 2000 ‑ V) and in R (Takoushis) v. Inner North London Coroner and Another ([2006] 1WLR 46) namely, that there had to be at least gross negligence of a kind sufficient to sustain a charge of manslaughter. The applicant had not made any such allegations:", "“It is thus clear that there is strong authority which would make it highly unlikely that any decision on appeal in the case of Savage would render [the Trust and the Council] liable under the provisions of Article 2.”", "23. In refusing the applicant’s request for an adjournment, the County Court did not accept that the law relating to the treatment of voluntary mental health patients was uncertain or in a state of development which was likely to lead to a change in the law which would enable the applicant’s claim to succeed. It was not persuaded that the prospect of the appeal in the case of Savage raised a sufficient prospect of an outcome favourable to the applicant as to justify refusing the orders sought by the defendants.", "24. Two barristers, experienced in clinical negligence, human rights cases and Inquest law, advised the applicant that an appeal had no realistic prospect of success. One of these opinions was submitted to the Legal Services Commission which withdrew legal aid in August 2007.", "B. Relevant domestic law and practice", "1. Human Rights Act 1998 (“HRA”)", "25. Section 6 of the HRA makes it unlawful for a public authority to act incompatibly with Convention rights, unless it is not possible to act differently by virtue of primary legislation. A successful claim under Article 6 renders the relevant public authority liable under section 7 of the HRA and a judge has the power to award damages under section 8 of the HRA.", "2. Coroners and Inquests", "26. Section 8(1) of the Coroners Act 1988 (“the 1988 Act”) requires a Coroner to hold an Inquest in circumstances where there are grounds to suspect that the person (a) has died a violent or an unnatural death or (b) has died a sudden death of which the cause is unknown.", "27. As to the scope of an Inquest (including a resumed one), section 11(5)(b) of the 1988 Act outlines the content of the Inquisition Form (a document completed by the Inquest jury at the end of the evidence). It must set out, so far as such particulars have been proved (i) who the deceased was; and (ii) how, when and where the deceased came by his death. Rule 36 of the Coroners Rules 1984 (“the 1984 Rules”) requires that proceedings be directed solely to ascertaining: (a) who the deceased was; (b) how when and where he came by his death; and (c) the particulars required by the Registration Act to be registered concerning the death. Rule 36(2) specifically provides that neither the Coroner nor the jury shall express any opinions on any other matters. Rule 42 provides that no verdict shall appear to determine any question of criminal or civil liability on the part of a named person.", "28. On 11 March 2004 the House of Lords decided ( R. (Middleton) ν West Somerset Coroner [2004] 2 A.C. 182; and R. (Sacker) v. West Yorkshire Coroner [2004] 1 W.L.R. 796) that the limited scope of Inquests to date was incompatible with the procedural requirements of Article 2. Using the interpretation mechanism of section 3 of the HRA, the House of Lords extended the Inquest regime so that “how” (section 11(5)(b)(ii) of the 1988 Act and Rule 36(l)(b) of the Coroners Rules 1984) was to be interpreted as meaning “by what means and in what circumstances” the deceased came by his death. Lord Bingham clarified that, however the jury’s extended factual conclusions were to be conveyed, Rule 42 was not to be infringed so that there could be no finding of criminal or civil liability. While acts or omissions could be recorded, expressions suggestive of civil liability, in particular neglect, carelessness and related expressions were to be avoided.", "3. Proceedings for injury and death caused by negligence", "29. A person who suffers injury, physical or psychiatric, in consequence of the negligence of another may bring an action for damages for that injury. Upset and injury to feelings resulting from negligence in the absence of physical or psychiatric damage or exacerbation do not entitle a plaintiff to damages. Any personal-injury action maintainable by a living person survives for the benefit of his estate and may be pursued after his death.", "30. Claims arising from a death caused by negligence are brought under the Fatal Accidents Act 1976 (“the 1976 Act”) or the Law Reform (Miscellaneous Provisions) Act 1934 (“the 1934 Act”). The 1976 Act enables those who were financially dependent on the deceased to recover damages for the loss of support: the scheme is compensatory and, save for the sum of currently 10,000 pounds sterling for bereavement awarded to the spouse of a deceased or parent of a deceased child under 18 at the time of death, damages are awarded to reflect the loss of support. The 1934 Act enables damages to be recovered on behalf of the deceased’s estate and may include any right of action vested in the deceased at the time of death together with funeral expenses.", "4. Relevant domestic case-law", "(a) R (Takoushis) v. Inner North London Coroner and Another [2006] 1WLR 46.", "31. Mr Takoushis, diagnosed with schizophrenia, left a hospital where he was a voluntary patient and committed suicide. His wife challenged certain rulings of the Coroner. The Court of Appeal, following the approach of the High Court, examined, in the first place, whether those rulings were justified on the assumption that Article 2 was not engaged. The Court of Appeal did not uphold the Coroner’s rulings and ordered a new Inquest.", "32. The Court of Appeal went on to examine the applicability and scope of the protection of Article 2 in such cases partly because the point was evidently of some potential importance for the new Inquest which was now to be held. It accepted that simple negligence in the care of a patient resulting in his or her death was not sufficient to amount to a breach of the State’s obligation under Article 2 to protect life, although the position might be different where gross negligence or manslaughter had been alleged (relying, inter alia, on R (Goodson) v Bedfordshire and Luton Coroner [2004] EWHC 2931 (Admin), itself based on Powell v. the United Kingdom ((dec.), no. 45305/99, ECHR 2000 ‑ V). The Court of Appeal concluded by rejecting the argument that the deceased should be considered an involuntary patient as he would have been detained had he been seen leaving the hospital: the court found that the deceased was clearly a voluntary patient and that there was an important difference between the principles applicable to those who were detained and those who were not.", "(b) Savage ν South Essex Partnership NHS Foundation Trust, [2006] EWHC 3562, [2007] EWCA Civ 1375 and [2008] UKHL 74", "33. The deceased was an involuntary mental health patient who left an open acute psychiatric ward and committed suicide.", "34. The Trust contended before the High Court that the extent of the obligations of health authorities to protect a patient’s life was to be found in Powell v. the United Kingdom ((dec.), no. 45305/99, ECHR 2000 ‑ V) namely, that the treatment alleged amounted either to gross negligence or to manslaughter. The claimant argued, citing Osman v. the United Kingdom (28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII), that a duty to take steps to prevent a particular patient from committing suicide arose if the authorities knew or ought to have known that there was a real and immediate risk of her doing so. The claimant sought to distinguish her son’s position (an involuntary patient) from that of a voluntary patient arguing that the test for Article 2 liability in Powell did not apply to her son and equating the duty of care owed by the State to an involuntary patient with that owed to a prisoner in the criminal justice system. The High Court expressly rejected that distinction, finding that the proper test applicable to a breach of the substantive obligation under Article 2, in respect of both voluntary and involuntary patients where the relevant allegations were of clinical negligence, was the Powell test namely, that of gross negligence of a kind sufficient to sustain a charge of manslaughter (the High Court relied on the above-cited Takoushis judgment). The High Court struck out Ms Savage’s action. In December 2007 the Court of Appeal allowed Ms Savage’s appeal.", "35. The appeal to the House of Lords was rejected by judgment dated 10 December 2008. Lord Rodger, giving the main judgment of the House of Lords, noted that the fundamental error in the approach of the Trust was to conceive of the Powell decision and the Osman judgment as laying down two mutually exclusive approaches whereas the Court’s case-law did not contain a hint of such an approach. The principles represented by those cases related to different aspects of the Article 2 obligations of health authorities and Lord Rodger summarised the relevant obligations of the health authorities under Article 2 as follows:", "“In terms of article 2, health authorities are under an over-arching obligation to protect the lives of patients in their hospitals. In order to fulfil that obligation, and depending on the circumstances, they may require to fulfil a number of complementary obligations.", "In the first place, the duty to protect the lives of patients requires health authorities to ensure that the hospitals for which they are responsible employ competent staff and that they are trained to a high professional standard. In addition, the authorities must ensure that the hospitals adopt systems of work which will protect the lives of patients. Failure to perform these general obligations may result in a violation of article 2. If, for example, a health authority fails to ensure that a hospital puts in place a proper system for supervising mentally ill patients and, as a result, a patient is able to commit suicide, the health authority will have violated the patient’s right to life under article 2.", "Even though a health authority employed competent staff and ensured that they were trained to a high professional standard, a doctor, for example, might still treat a patient negligently and the patient might die as a result. In that situation, there would be no violation of article 2 since the health authority would have done all that the article required of it to protect the patient’s life. Nevertheless, the doctor would be personally liable in damages for the death and the health authority would be vicariously liable for her negligence. This is the situation envisaged by Powell.", "The same approach would apply if a mental hospital had established an appropriate system for supervising patients and all that happened was that, on a particular occasion, a nurse negligently left his post and a patient took the opportunity to commit suicide. There would be no violation of any obligation under article 2, since the health authority would have done all that the article required of it. But, again, the nurse would be personally liable in damages for the death and the health authority would be vicariously liable too. Again, this is just an application of Powell.", "Finally, article 2 imposes a further “operational” obligation on health authorities and their hospital staff. This obligation is distinct from, and additional to, the authorities’ more general obligations. The operational obligation arises only if members of staff know or ought to know that a particular patient presents a “real and immediate” risk of suicide. In these circumstances article 2 requires them to do all that can reasonably be expected to prevent the patient from committing suicide. If they fail to do this, not only will they and the health authorities be liable in negligence, but there will also be a violation of the operational obligation under article 2 to protect the patient’s life. This is comparable to the position in Osman and Keenan. As the present case shows, if no other remedy is available, proceedings for an alleged breach of the obligation can be taken under the Human Rights Act 1998.”", "36. Lord Rodger noted that it was relevant to the authorities’ obligations under Article 2 that the deceased was a detained patient and he continued:", "“Any auction in the comparative vulnerability of prisoners, voluntary patients, and detained patients would be as unedifying as it is unnecessary. Plainly, patients, who have been detained because their health or safety demands that they should receive treatment in the hospital, are vulnerable ... not only by reason of their illness which may affect their ability to look after themselves, but also because they are under the control of the hospital authorities. Like anyone else in detention, they are vulnerable to exploitation, abuse, bullying and all the other potential dangers of a closed institution. Mutatis mutandis, the principles in the case law which the European court has developed for prisoners and administrative detainees must apply to patients who are detained. ...... The hospital authorities are accordingly responsible for the health and well being of their detained patients. Their obligations under Article 2 include an obligation to protect those patients from self-harm and suicide.”", "37. Baroness Hale noted the special position of detained patients and that it was not necessary to address in that case the extent of the State’s operational duty to protect non-detained patients. Lord Walker and Lord Neuberger agreed with both Lord Rodger and Baroness Hale.", "(c) Rabone v. Pennine Care NHS Trust", "38. The deceased was a voluntary patient who committed suicide once released on home leave. Her parents brought a claim under the HRA and the 1934 Act, in their own right and on behalf of their child’s estate. The claim under the 1934 Act on behalf of the estate for negligent care was settled by the Trust: 5,000 pounds sterling (GBP) in general damages and GBP 2,500 in funeral expenses, plus legal costs.", "39. The High Court ([2009] EWHC 1827 (QB)) and the Court of Appeal (2010] EWCA Civ 698) held that there was no operational duty under Article 2 on the hospital authorities to take reasonable steps to protect the deceased against the risk of suicide because she was a voluntary patient and the remedy for allegations of clinical negligence as regards voluntary patients was an action in negligence. In any event, the parents were no longer victims for the purposes of the HRA given their settlement of the 1934 Act proceedings. The parents appealed.", "40. On 8 February 2012 the Supreme Court ([2012] UKSC 2) allowed the appeal, Lord Dyson giving the main judgment. He found that the difference between voluntary and involuntary psychiatric patients was more apparent than real, noting that a voluntary patient who was a suicide risk was taking medication which would compromise his/her ability to make an informed decision, was likely to be detained if he/she attempted to leave and, indeed, may have consented to be a patient to avoid detention. An informal psychiatric patient’s position was therefore more analogous to that of the child at risk of abuse ( Z and Others v. the United Kingdom [GC], no. 29392/95, ECHR 2001 ‑ V). Accordingly, he was in no doubt that the NHS Trust owed to the deceased patient an operational duty to take reasonable steps to protect her from a real and immediate risk of suicide. On the facts, that obligation had not been fulfilled since the decision to allow her home on leave was one that no reasonable practitioner would have made.", "41. Moreover, by settling the 1934 negligence claim on behalf of the estate, the parents could not be said to have renounced their own Article 2 claim for non-pecuniary damages for bereavement to which damages they were entitled. However, negligence proceedings had not been open to them (section 1A of the Fatal Accidents Act 1976, the deceased not being a minor on death). Lord Dyson awarded each parent GBP 5,000 under Article 2 of the Convention. Lady Hale, Lord Brown, and Lord Mance delivered concurring judgments and Lord Walker agreed with the main judgment and with the added comments of the remaining judges." ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 2 ALONE AND IN CONJUNCTION WITH ARTICLE 13 OF THE CONVENTION", "42. The applicant complained that she had no effective domestic mechanism whereby issues of civil liability could be determined in respect of the alleged negligent care of her deceased son and through which she could have obtained compensation for the non-pecuniary loss sustained by her including grief, loss and distress. She invoked Article 2 alone and in conjunction with Article 13 of the Convention. The parties’ observations, summarised below, were filed prior to the delivery of the Supreme Court judgment in Rabone (paragraphs 40-41 above).", "43. Article 2, in so far as relevant, reads as follows:", "“2(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”", "Article 13 reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "44. The applicant died after introducing the present application and her daughter, Ms King, wished to pursue the application on her behalf. The Government did not make any comment. The Court considers that the conditions for striking the case out of its list of pending cases, as defined in Article 37 § 1 of the Convention, are not met and that it must accordingly continue to examine the application at Ms King’s request ( Arsenić v. Slovenia (nos. 22174/02 and 23666/02, §§ 17-19, 29 June 2006).", "45. The Government maintained that the applicant had at her disposal an effective remedy pursuant to section 7 of the HRA, under the 1976 Act and/or under the 1934 Act. The applicant argued that those remedies were not available to her. The Court considers that the question of the availability of effective domestic remedies prior to the above-described Supreme Court judgment in the Rabone case of February 2012 is closely linked with, and should be joined to, the merits of the related complaints under Articles 2 and 13 of the Convention.", "Even assuming that the Rabone judgment means that the applicant would now have available to her an effective remedy (an action for damages under the HRA within the time-limit for which section 7(5) of the HRA provides), the Court notes any such remedy was not clarified by the Supreme Court until over 4½ years after her original HRA action was struck out and, most importantly, until 4 years after she introduced her application to this Court. The Court does not consider that there exist exceptional circumstances which could compel the applicant to exhaust any such remedy at this point ( Baumann v. France, no. 33592/96, § 47, 22 May 2001; Brusco v. Italy, no. 69789/01 (dec.), 6 September 2001; and, more recently, Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, 23 September 2010).", "46. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "1. The applicants’ observations", "47. The applicant argued that, while a mechanism for establishing any liability and compensation was crucial to the fulfilment of the obligations under Articles 2 and/or 13, such a mechanism was not available to her.", "48. In the first place, her action under the HRA was struck out on a point of law without any consideration of the evidence or the facts, the County Court finding that there was no legal basis for it given settled case-law. As pleaded by the State defendants and as found by the County Court, there was clear case-law at the time which distinguished between the positive obligation owed to detained and non-detained patients. Two legal opinions confirmed that an appeal against the County Court’s decision had no prospects of success and, on receipt of one opinion, the Legal Services Commission withdrew legal aid. Nor was there any reason to appeal from the County Court following the Court of Appeal decision in Savage. That decision re-affirmed the distinction between the State’s positive obligation to detained and non-detained patients, a distinction maintained by each relevant domestic decision thereafter. The Court of Appeal judgment in the above-cited Rabone case definitively precluded any argument that there was any prospect of a successful appeal from the decision of the County Court.", "49. Secondly, while the Trust and the Council accepted duties of care to Mr Reynolds, they were unenforceable since the applicant, either as a claimant in her own right or on behalf of the estate, had no viable cause of action where there was no dependency claim and where the death had been instantaneous. Whether or not she was an executor of Mr Reynolds’ estate (and she was not), any claim on behalf of the estate for funeral expenses would not have been viable as it would not have satisfied any cost/benefit analysis required to enable the grant of legal aid. Any damages for pre-death pain and suffering would have been minor given the instantaneous nature of the death. In short, in the absence of any pecuniary claim (a dependency claim) and where the non-pecuniary loss was limited to bereavement under the 1976 Act, the value of any such claim would be insufficient to enable the applicant to enforce the substance of a complaint regarding death.", "50. Thirdly, no other mechanism (Inquest or complaints/disciplinary mechanisms) could have established civil liability and awarded damages for non-pecuniary loss for bereavement. The internal inquiry was not independent and it did not identify liability, its conclusions were limited to reinforcing glass and it did not satisfactorily address Mr Reynolds’ placement in the ISMOS Unit. The Inquest could not establish any civil liability and it did not even address whether Mr Reynolds should have been placed at the ISMOS Unit. It established the immediate cause of death and not the wider causal factors (such as negligent care) which might be contributory. The enhanced Middleton investigation was not considered necessary where the potential failure related only to clinical care of a non-detained patient and was not of such a character as to reach the bar for a potential finding of gross negligence.", "2. The Government’s observations", "51. The Government argued that the applicant did not have an arguable claim of a violation of Article 2 of the Convention. She was not suggesting that the medical personnel knew or ought to have known of a risk of suicide but rather, as alleged before the County Court, that they had been negligent in their assessment and care of her son. However, even if there had been medical negligence, the Powell decision made it clear that this would be insufficient to establish a violation of Article 2 of the Convention.", "52. Even if there were such an arguable claim, the Government pointed to a number of mechanisms which together satisfied the Article 2 obligation to implement a legislative and administrative framework to protect life.", "53. In the first place, the Inquest was prompt, public and independent and the family was entitled to be legally represented. Numerous relevant witnesses were heard and were questioned by the next-of-kin. The latter could have requested the Coroner to hear further witnesses or to put additional questions. The Inquest identified and exposed to the public the circumstances surrounding his death and the persons involved.", "54. Secondly, the internal inquiry further elucidated the circumstances of the death and the steps to be taken to avoid any future similar deaths.", "55. Thirdly, and as to the accountability objective of the Article 2, the Government accepted that neither the Inquest nor the Inquiry determined any individual responsibility. Criminal responsibility was not alleged and there was no complaint about a failure to bring disciplinary proceedings. Moreover, the Government argued that the applicant had access to a mechanism to establish any civil liability.", "56. In this respect, the applicant had access to proceedings under the HRA whereby her allegation of the State’s liability under Article 2 was examined. The County Court did not strike out the case on the basis of the High Court judgment in Savage as the applicant claimed. The issue in Savage was whether the Osman “operational duty” applied to a mental health detainee, whereas the applicant’s case amounted to a claim that ordinary clinical negligence was sufficient to establish a breach of Article 2 by the State. The County Court concluded that it was unlikely that any appeal in Savage would render the Trust and Council liable under Article 2 because an allegation of ordinary negligent medical care was insufficient of itself to establish a breach of Article 2 of the Convention ( Powell v. the United Kingdom, no. 45305/99, (dec.) 4 May 2000). Accordingly, any future finding in Mrs Savage’s favour by the Court of Appeal would not have changed anything for the applicant who alleged ordinary clinical negligence. The applicant therefore had a remedy which she used and it was found that she did not have a good case under Article 2. Her HRA action demonstrated not a breach of Article 2 but compliance with it.", "57. If the applicant considered that the County Court had erred, she could have appealed immediately or sought leave to appeal out-of-time following the judgments on appeal in the Savage case. Counsel’s advice on chances of success could only exempt an applicant from exhausting a remedy when the subject was settled law but, when the applicant’s case was struck out, the scope of the positive duty under Article 2 to protect voluntary mental health patients from suicide was not settled law. At the time of the County Court decision, there was no Court of Appeal or House of Lords’ judgment on the issue as the Court of Appeal judgment in Takoushis concerned only investigative obligations. The matter was not even clear after the House of Lords’ judgment in Savage and it was resolved by the Court of Appeal in the Rabone case.", "58. Moreover, the applicant could have taken civil negligence proceedings. She could have applied to be an executor of the deceased’s estate and brought proceedings, on behalf of the estate, as regards any claim vested in the estate at the time of death and which could have been brought by the deceased. Such a claim could have included claims of medical negligence and of a breach of an occupier’s common law duty to protect (the Occupiers Liability Act 1957) and both defendants had accepted in the HRA action that they owed such duties to Mr Reynolds. Any breaches of those duties would render compensation for pecuniary and non-pecuniary loss payable, the amount of damages depending on the level of pecuniary and non-pecuniary damage sustained by Mr Reynolds as a result of the alleged breach of duty of care in accordance with the established principles of law concerning damages in tort: limited damages would be simply a reflection of limited pecuniary and non-pecuniary loss. Even if damages would not be substantial, this would not amount to a bar on obtaining a judicial determination on liability in principle or in practice, the Government referring to the above-described settlement in the Rabone case.", "59. Finally, and as regards Article 13, the Government reiterated that the applicant had a remedy under the HRA and a breach of Article 13 of the Convention was not established just because she had been unsuccessful on the merits of that action.", "3. The Court’s assessment", "60. The Court has examined the applicant’s complaint under Article 13 in conjunction with Article 2 of the Convention. In particular, it has considered whether there is an arguable claim of a breach of Article 2 of the Convention and whether civil proceedings for establishing any liability and, if so, awarding non-pecuniary damages were available to the applicant in that respect ( Z and Others v. the United Kingdom [GC], no. 29392/95, § 109, ECHR 2001-V; Keenan v. the United Kingdom, no. 27229/95, §§ 123-133, ECHR 2001-III; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 96-102, ECHR 2002-II; and Bubbins v. the United Kingdom, no. 50196/99, §§ 173/176, ECHR 2005 ‑ II).", "61. As to the existence of an “arguable claim” for the purposes of Article 2, the Court notes as follows.", "The applicant’s son had a history of schizophrenia and was known to the health services. Having suffered a relapse of his psychotic symptoms, including voices telling him to kill himself, he was assessed as a low suicide risk and transferred as a voluntary patient by the NHS Trust to an ISMOS Unit for which the Council was responsible. At one point during the evening before he died, he was found wandering outside the ISMOS Unit and encouraged by staff to return, which he did. Moreover, the applicant’s son later broke a window in the Unit and fell to his death from the sixth floor of the building occupied by the Unit. The Coroner, concerned as he was about a psychiatric facility on a sixth floor, reported the incident to the NHS Trust under Rule 43 of the Coroner’s Rules 1984. The windows have since been reinforced and the long term plan is to transfer the ISMOS Unit to a two-storey building. In such circumstances, the Court considers that there is an arguable claim that the position of the applicant’s son was such that an operational duty arose to take reasonable steps to protect him from a real and immediate risk of suicide and that that duty was not fulfilled.", "62. As to the compensatory remedies available, it is common ground that the Inquest, while constituting a detailed examination of the circumstances of the death, could not examine individual civil liability (paragraphs 15 and 27-28 above). It was not suggested that there was any question of criminal or disciplinary responsibility in the present case. The internal inquiry held was not independent, the NHS being responsible for the Trust.", "63. As to an action under the HRA on which the Government first relied, the Court recalls that the applicant’s HRA action, alleging negligence and a violation of Article 2 of the Convention, was struck out under Rule 3.4 of the Civil Procedure Rules on the basis that she had no reasonable grounds for bringing the claim. The Government argued that this amounted to a rejection of the merits of her negligence case. The applicant maintained that the HRA action was a limited remedy which did not apply to her case.", "The Court recalls that the Court of Appeal had found in 2005, in the above-cited Takoushis case which concerned allegations of negligence as regards a voluntary mental health patient, that the Powell decision meant that the relevant Article 2 substantive responsibility was limited to cases where gross negligence or manslaughter was alleged. The Government suggested that Takoushis was not clear precedent because the core dispute therein concerned the investigatory duties under Article 2. However, the Court of Appeal in Takoushis explained why its view on the applicability and scope of Article 2 protection was important in that case and subsequent domestic courts did not treat as obiter the Takoushis ruling on the Powell substantive obligation under Article 2. On the contrary, the High Court in Savage later accepted that obligation as outlined in Takoushis and went on to apply it to a case concerning the death of an involuntary patient due to alleged negligence. The County Court therefore applied this case-law from two superior courts to the present applicant’s case (death of a voluntary patient due to alleged clinical negligence) and found it clear from that case-law that the parameters of the applicant’s case fell outside the scope of an action under the HRA alleging a violation of Article 2 of the Convention. Indeed the County Court considered the case-law to be so certain in these respects that an appeal in the Savage case did not raise sufficient prospects of success for the applicant’s case as to require it to be adjourned pending the Savage appeal. The applicant’s case was not therefore rejected as failing to disclose negligence but rather as not disclosing a cause of action under the HRA and, in particular, the County Court applied contemporary domestic case-law to the effect that she had no cause of action under the HRA about the allegedly negligent care and death of her son as he was a voluntary psychiatric in-patient.", "Moreover, the Court does not accept that any purpose would have been served by the applicant lodging an appeal immediately after the County Court decision if she considered it to be erroneous or by lodging an appeal thereafter on an out-of-time basis following the appeals in the Savage case. While the House of Lords in the Savage case (2008) later confirmed the existence of an Article 2 “operational duty” to suicide-risk patients, the Court of Appeal in Rabone found in 2010 that any such duty did not concern voluntary psychiatric patients. It was not until February 2012 that the Supreme Court in Rabone definitively confirmed that an operational duty to protect could arise as regards voluntary psychiatric patients such as the applicant’s son and, further, that parents would be entitled to damages for non-pecuniary loss following the death of a child in such a situation. Accordingly, while the underlying reasoning may have changed over the years, prior to February 2012 the applicant did not have an action for damages under the HRA for her non-pecuniary loss following the death of her son.", "64. As to a civil action in negligence pursuant to the 1934 and 1976 Acts on which on which the Government further relied, it is noted that, in their written pleadings in the applicant’s HRA action, the Trust and Council accepted that they owed common law duties of care to the applicant’s son (paragraph 21 above).", "65. However, it is also noted that, as the mother of an adult child and a non-dependant, the applicant would have been unable to claim damages under the 1976 Act on her own behalf. Moreover, the Court does not consider that a negligence action on behalf of the estate of her son was available to the applicant even assuming she could have applied to be an executor of that estate and that any such award to his estate could constitute compensation for the applicant’s bereavement. The survival of any such action on behalf of the deceased and in favour of his estate is governed by the 1934 Act. Given the circumstances of the applicant’s son’s death (which was instantaneous), there is no evidence that he inflicted physical injury on himself before the moment of his death. While it is likely that he suffered significant anguish and fear, there is no evidence that this would be regarded as psychiatric “injury” in the sense recognised by domestic law. The most therefore that could be recovered under the 1934 Act on behalf of the deceased’s estate would have been the funeral expenses (as regards the 1976 and 1934 Acts, see the above-cited Keenan judgment, § 129 and Bubbins v. the United Kingdom, no. 50196/99, § 172, ECHR 2005 ‑ II). It must be concluded therefore that the applicant had no prospect of obtaining adequate compensation for the non-pecuniary damage suffered by her as a result of the death of her child (either directly or as a beneficiary of her son’s estate).", "66. Moreover, and contrary to the Government’s argument, this lack of compensation would itself reduce access to the civil remedy. The lack of compensation for non-pecuniary damage would almost certainly have had a negative bearing on any application by the applicant for legal aid to take civil proceedings and the Government did not dispute that she could not afford legal representation or that she would have required legal aid to effectively pursue any such negligence action (the above-cited Bubbins judgment, § 172).", "67. The Court has therefore concluded that the present applicant did not have available to her, prior to the introduction of her application to this Court, civil proceedings to establish any liability and compensation due as regards the non-pecuniary damage suffered by her on her son’s death.", "68. The Court therefore concludes that there has been a violation of Article 13 in conjunction with Article 2 of the Convention and, consequently, it dismisses the Government’s objection as to the applicant’s failure to exhaust domestic remedies.", "69. It is consequently not necessary also to examine the same complaint under Article 2 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "70. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "71. The applicant claimed that she suffered bereavement and distress following her son’s death which was compounded by her distress and frustration at the failure of the State to provide an adequate civil remedy. She claimed 25,000 euros (EUR) in respect of non-pecuniary damages, plus any tax or interest payable on that amount.", "72. The Government argued that a finding of a violation would constitute sufficient just satisfaction. Alternatively, since her complaint concerned a procedural aspect of Article 2 only, the applicant could not, as a matter of principle, seek to recover damages for her bereavement arising from the death itself. In the alternative, the sum claimed was excessive and the Government left to the Court the assessment of any sum which it considered appropriate to award under this head.", "73. The Court has found a violation of Article 13 in conjunction with Article 2 (paragraph 67 above) in that domestic law did not afford a civil remedy to the present applicant enabling any liability to be established and any appropriate redress to be obtained as regards the non-pecuniary loss sustained by the applicant on the death of her son. The Court notes that the applicant did have the benefit of a detailed Inquest which elucidated the central facts of the present case but it accepts that the lack of civil remedy likely caused her some frustration and distress so that the Court awards the applicant the sum of EUR 7,000, plus any tax that may be chargeable on this sum.", "B. Costs and expenses", "74. She claimed the sum of GBP 29,826.09 for the costs and expenses incurred before the Court comprising GBP 4387.34 in solicitors’ fees, GBP 13,453.75 in barrister’s fees and GBP 11,985.00 in Queen’s Counsel’s (“QC”) expenses. Vouchers were submitted. The Government considered the claim excessive. They argued that it was unnecessary to brief both a barrister and a QC, that the barrister’s claim for more than 35 hours of work to reply to the Government’s observations was excessive, that there was no breakdown of the solicitor’s and the QC’s costs and that the latter’s claims were excessive when viewed against the claim for the barrister’s work.", "75. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 8,000 for the proceedings before the Court, plus any tax that may be chargeable on this sum.", "C. Default interest", "76. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Background to the case", "6. The applicants are brothers. Mr Stuart Gray (the “first applicant”) lives in Blakedown, United Kingdom, whereas Mr Rory Gray (the “second applicant”) lives in Darmstadt, Germany.", "7. The applicants are the sons of the late David Gray (hereinafter referred to as “Mr Gray ” or “the deceased” ) who died in the evening of 16 February 2008 at the age of 71 at his home in Cambridgeshire, United Kingdom.", "8. Mr Gray suffered from kidney stones and from 2004 on he had regularly been attended at home by his doctor, a General Practitioner (“GP”) working for the United Kingdom ’ s National Health Service (“NHS”) which is represented at local level by NHS Primary Care Trusts (“PCTs”), in the instant case by Cambridgeshire NHS Primary Care Trust (“Cambridgeshire PCT”). The GP had routinely administered injections of opiates, in particular pethidine at a dosage of 100mg, for pain relief. On several occasions between 2006 and 2008 Mr Gray had recourse to out-of-hours medical services by “Take Care Now” (“TCN”), a private agency that recruits locum doctors within the United Kingdom or from abroad to supply out-of-hours medical care for several PCTs, including the Cambridgeshire PCT. Out-of-hours services concern the periods outside business hours of GP surgeries on weekdays as well as weekends and bank holidays.", "9. Since TCN clinicians do not routinely carry pethidine, the deceased had on some of these occasions been injected with 10mg doses of the opiate diamorphine, contained in a sealed palliative care box TCN doctors were provided with for the purpose of home visits at that time. Such palliative care boxes were stocked with 10mg and 30mg vials of diamorphine for acute pain relief together with a much larger ampoule of 100mg intended for patients receiving palliative care. Attached to each box was a list of the drugs contained as well as a form with instructions for doctors, and inside a document that listed the relative potencies of the drugs.", "10. On Saturday 16 February 2008 Mr Gray developed a severe renal colic. In the afternoon his partner contacted the TCN call centre to arrange for an urgent home visit by a doctor. She explained Mr Gray ’ s medical history to the TCN clinician who carried out the first telephone triage consultation and specified what medication Mr Gray had received on the occasion of previous home visits. The case was then assigned to doctor U., a German national, who had recently been recruited by TCN through an agency on a self-employed basis to provide out-of-hours care. U., at the time aged 65, had qualified as a doctor in Germany in 1972 where he was practising as an aesthetic surgeon but where he was also formally qualified as a GP. For the purpose of working as a locum doctor in the United Kingdom he had obtained registration with the British General Medical Council (GMC) in 2006 and had applied to be admitted to one of the Medical Performers Lists maintained by each of the local PCTs. Once a GP is admitted to a PCT ’ s Performers List he may work in the area of any other PCT in England. U. had withdrawn a first application to join Leeds Performers List after being notified that he had not reached a sufficient score in the required English language test. However, the Cornwall and Isles of Scilly PCT authorities, unaware that U. had already tried to register with another PCT, approved a subsequent application and admitted him to their Performers List in July 2007 without verifying his English language skills.", "11. U. arrived in the United Kingdom on Friday, 15 February 2008 for his first shift as a locum doctor scheduled for the coming weekend. According to an induction report established by a TCN doctor on 15 February 2008 there had not been sufficient time to assess U. ’ s professional competence prior to his first assignment the next day.", "12. U. attended Mr Gray at his home in the late afternoon of 16 February 2008. He was told by Mr Gray and his partner that in similar situations in the past he had either received injections of 100mg of pethidine for acute pain relief or, where the out-of-hours services did not carry pethidine, had been treated with diamorphine. U. administered 100mg of diamorphine from the respective ampoule included in the palliative care box by intra ‑ muscular injection. Some two hours after U. had left, Mr Gray ’ s partner realised that he was no longer breathing and called an ambulance. The attending emergency services confirmed that Mr Gray had died. The police was informed and attended on-site.", "13. On Sunday 17 February 2008 TCN suspended U. from duty, terminated his engagement with immediate effect and advised him to return to Germany where he arrived the following day. Subsequently, two other incidents were reported where U. on the occasion of home visits on 16 February 2008 had failed to administer the appropriate medical treatment.", "14. On 29 February 2008 U. returned to London to attend a hearing before the GMC in connection with the incidents on 16 February 2008. By an order of the same date, the GMC suspended the applicant from the British medical register on an interim basis.", "15. On 4 March 2008 U. informed the competent public health authorities at the Arnsberg District Government ( Bezirksregierung ), Germany, and by letter of 11 March 2008 his German professional indemnity insurance company of the incident. He explained that when treating the deceased he had committed a grave mistake with fatal outcome that had resulted from the confusion between the drugs pethidine and diamorphine, the latter being a drug not used by on-call services in Germany and with which he had been unfamiliar. On the day of the incident he had further been overtired following his journey from Germany to the United Kingdom and had found himself in a tremendous stress situation.", "16. By a letter of 17 April 2008 in reply to a complaint lodged by the first applicant following his father ’ s death, TCN confirmed that U. had satisfied the requirements generally expected from locum doctors working for the TCN and had completed the compulsory induction process all clinicians had to undergo before they could be assigned to clinical shifts.", "17. A post mortem report issued on 25 June 2008 by a forensic pathologist in the United Kingdom established as the cause of Mr Gray ’ s death diamorphine poisoning in association with alcohol intoxication as well as hypertensive heart disease and myocardial fibrosis. The report further stated that the diamorphine injection had more than minimally contributed to the death and that in view of the large dose administered there was no need to necessarily invoke the additional effect of alcohol in causing death.", "18. By a letter of 10 July 2008 to the deceased ’ s partner and the first applicant, U. apologised for the medical malpractice in connection with the deceased ’ s treatment and again explained that he had confused the opiates and referred to the stress situation he was subject to when making the mistake.", "19. On 8 August 2008 the applicant attended a further hearing before the GMC in London where his suspension from the medical register was confirmed.", "B. The criminal proceedings instituted against U. in the United Kingdom and Germany", "20. Following Mr Gray ’ s death the Cambridgeshire police commenced criminal investigations against U. for manslaughter by gross negligence.", "21. On 5 March 2008 Cambridgeshire Constabulary, through Interpol London, made an application for assistance to the German Federal Office of Criminal Investigation ( Bundeskriminalamt ) requesting in particular the supply of data with respect to U. ’ s personal record and past professional career. The request was forwarded to the competent Bochum police department which provided the Cambridgeshire police with the requested information and documentation by mid-March 2008.", "22. On 21 April 2008 the English Crown Prosecution Service (CPS) sent a formal letter of request to the Ministry of Justice of the Land North Rhine ‑ Westphalia, Germany, in accordance with the European Convention on Mutual Assistance in Criminal Matters 1959, requesting assistance in obtaining information with respect to U. ’ s medical qualifications and the authenticity of the related certificates submitted by him to the British authorities when applying to be admitted as a locum doctor. The letter gave a short summary of the circumstances of Mr Gray ’ s death and specified that while no criminal proceedings had yet been instigated in the United Kingdom, the offence investigated constituted manslaughter, i.e. the unlawful killing of a human being, an offence contrary to Common Law and punishable on conviction by a term of life imprisonment. The CPS asked the German authorities to carry out the respective investigations and to arrange for hearings of the relevant witnesses in Germany in the presence of representatives of Cambridgeshire Constabulary.", "23. The request was forwarded by the North Rhine-Westphalia Ministry of Justice to the Hamm General Prosecution Authorities ( Generalstaatsanwaltschaft ) as well as to the locally competent Bochum prosecution authorities. By a decision of the Bochum Chief Public Prosecutor ( Oberstaatsanwalt ) of 6 June 2008 the request for assistance was granted and by letter of the same date the Bochum police department was informed accordingly and invited to provide the requested assistance and to coordinate any future investigation measures with Cambridgeshire police.", "24. Simultaneously, the Bochum Chief Public Prosecutor ex officio initiated preliminary criminal proceedings ( Ermittlungsverfahren ) against U. in Germany under file no. 49 Js 174/08 on suspicion of having negligently caused the death of Mr Gray pursuant to Article 152 § 2 of the German Code of Criminal Procedure in conjunction with Articles 222 and 7 § 2 no. 1 of the German Criminal Code (see Relevant domestic and international law and practice below). In a letter of the same date the Chief Public Prosecutor instructed the Bochum police to conduct the necessary investigations also in respect of the domestic preliminary proceedings, in particular to interview the suspect U., who was represented by counsel. He further explicitly invited Bochum police to permit the presence of English police officers also on the occasion of such interview.", "25. In accordance with the letter of request dated 21 April 2008, Cambridgeshire police officers visited Germany on several occasions in the period from July until September 2008 and were provided with assistance by the German police in their investigations against U. The investigations focussed on the authenticity of the certificates U. had submitted to the English health authorities as evidence of his medical qualifications as well as on the question whether U. ’ s treatment of the deceased had amounted to medical malpractice. At the request and in the presence of officers of Cambridgeshire police, German police officers heard, inter alia, representatives of U. ’ s professional indemnity insurance company, of the public health authorities at the Arnsberg District Government and the Westphalia- Lippe Medical Association ( Ärztekammer ) as witnesses. The originals of the protocols of the witness hearings conducted as well as the material obtained in the course of the investigations were handed over to Cambridgeshire police. On 10 July 2008 German and British police officers visited U. at his surgery in Witten, Germany, and informed him that criminal investigations were pending against him in Germany and the United Kingdom. U. availed himself of his right not to testify. He also declined a subsequent request by the Cambridgeshire police to be interviewed in the United Kingdom.", "26. Furthermore, at the request of the Cambridgeshire Constabulary a forensic expert opinion was obtained from a professor of Essen university hospital on the question whether the treatment of the deceased by U. had complied with medical standards. The expert established his report on the basis of the information contained in the Cambridgeshire police ’ s investigation files. He presented his preliminary findings to representatives of Cambridgeshire Constabulary on the occasion of one of their visits to Germany in September 2008. In his final report issued on 18 September 2008 the expert confirmed that the cause of Mr Gray ’ s death had been an overdose of diamorphine. He pointed out that notwithstanding the fact that the therapeutical use of diamorphine was in general not permitted in Germany and therefore doctors in Germany were as a rule not trained in its use, U. had not sufficiently investigated the cause of Mr Gray ’ s acute pain and had not verified whether the medication administered and its dosage had been an appropriate therapy under the circumstances. The expert concluded that U. ’ s treatment of the deceased had thus been inadequate and had violated basic principles of medical care.", "27. According to a file note by a Bochum police officer of 23 September 2008, the Cambridgeshire police, for their part, had provided their German counterparts upon request with certain documents for use in the preliminary proceedings conducted against U. in Germany, namely with the post mortem report of 25 June 2008 as well as protocols of statements made by Mr Gray ’ s partner following the latter ’ s death.", "28. By a letter of 1 October 2008 counsel for the second applicant practising in Germany informed the Bochum prosecution authorities that his client was the son of a patient who had possibly been killed by U. on 16 February 2008 through medical malpractice. Counsel asked for information whether preliminary criminal proceedings were pending against U. and, should this be the case, requested access to the relevant investigation files. By a letter of 23 October 2008 counsel for the second applicant reiterated his request for information whether preliminary proceedings had been instituted against U. Pursuant to a file note by the Bochum public prosecution authorities dated 30 October 2008 counsel was informed about the pending preliminary proceedings and forwarded copies of excerpts of the investigation file such as the forensic expert opinion of 18 September 2008 and the letter of March 2008 by which U. had notified the incident to his professional indemnity insurance company.", "29. By a letter dated 6 November 2008, Cambridgeshire Constabulary, referring to a telephone conversation of the previous day, requested the German public prosecution authorities to assure that no criminal proceedings would be instituted against U. in Germany prior to finalisation of the investigations in the United Kingdom and that none of the information gathered in the course of the investigations carried out jointly by German and British police officers on the occasion of their visits to Germany would be disclosed to U., Mr Gray ’ s relatives or their respective counsel. According to a file note by the Bochum public prosecution authorities of 5 November 2008, the German prosecution authorities had informed Cambridgeshire Constabulary in reply to a similar request made over the phone that day that they had been obliged by operation of law to institute preliminary criminal proceedings against U. in Germany and that they were also obliged under German criminal procedure to grant counsel for the accused as well as counsel for the victim ’ s relatives acting as joint plaintiffs to the prosecution ( Nebenkläger ) the right to inspect the files in such preliminary proceedings.", "30. On 6 November 2008, German counsel for the second applicant, referring to the preliminary proceedings conducted under file no. 49 Js 174/08 against U., transmitted the latter ’ s apology letter of 10 July 2008 to the deceased ’ s partner and the first applicant as well as the TCN ’ s letter to the first applicant dated 17 April 2008 to the Bochum prosecution authorities for inclusion in the investigation file.", "31. On 27 February 2009 an arrest warrant was issued against U. by the Huntingdon Magistrates ’ Court, Cambridgeshire. On 12 March 2009 the Colchester Magistrates ’ Court issued a European Arrest Warrant (”EAW”) against U. for allegedly having caused the death of Mr Gray with an overdose of morphine.", "32. On the same day, 12 March 2009, the Bochum Chief Public Prosecutor ordered that the preliminary criminal proceedings against U. be terminated and applied to the Witten District Court for a penal order ( Strafbefehl ) to be issued against U. convicting him of having caused Mr Gray ’ s death through negligence pursuant to Article 222 of the Criminal Code and imposing a suspended prison sentence of 9 months as well as a payment of 5,000 euros (EUR) to the treasury. A draft of the penal order was attached to the application. Following previous discussions with the public prosecution authorities, U., represented by counsel, had declared that he would accept the envisaged sentence.", "33. The Chief Public Prosecutor ’ s assessment of the facts of the case and U. ’ s guilt set out in the draft penal order relied on the circumstances of the case as reflected in the deceased partner ’ s statements following the incident, the post mortem report of 25 June 2008, the forensic expert opinion of 18 September 2008, the explanatory letter by TCN to the first applicant of 17 April 2008, U. ’ s notification to his professional indemnity insurance company dated 11 March 2008 as well as his apology letter to the deceased ’ s family of 10 July 2008. The Chief Prosecutor found that while the fact that U. did not have a criminal record, had made a full confession and had apologised to the victim ’ s relatives had to be considered in his favour and notwithstanding the fact that an ampoule with a fatal dose of morphine had been included in the care box, U. had nevertheless committed a grave error in the deceased ’ s treatment and had thus violated basic principles of the medical profession.", "34. On 13 March 2009 the EAW was forwarded by the British authorities to the German Federal Office of Criminal Investigation.", "35. By email of 17 March 2009 the Cambridgeshire police asked the Bochum public prosecution authorities for information about the procedure to be followed by the German authorities after transmission of the EAW. In their reply of the same day the Bochum public prosecution authorities specified that the Hamm General Prosecutor ( Generalstaatsanwalt ) was the competent authority to deal with questions regarding U. ’ s extradition and pointed out that extradition might be hindered on the ground that criminal proceedings were also pending against U. in Germany. On the occasion of a phone call later the same day Cambridgeshire police was informed by the Hamm General Prosecution authorities that execution of the EAW was halted in view of the criminal proceedings pending against U. in Germany in accordance with section 83b (1) of the Act on International Cooperation in Criminal Matters (see Relevant domestic and international law and practice below).", "36. On 20 March 2009 the Witten District Court issued the penal order (file no. 49 Js 174/08) against U. as applied for by the prosecution authorities. By a decision of the same day, the District Court determined that the probation period for U. was two years starting from the date the penal order became final.", "37. By a letter dated 23 March 2009 the CPS asked the Ministry of Justice of the Land of North Rhine-Westphalia for information why the EAW had not yet been executed and for clarification whether any criminal or other proceedings were conducted, pending or envisaged against U. in Germany as well as for copies of related court decisions.", "38. By fax dated 14 April 2009 newly appointed counsel for the second applicant practising in Germany asked the Bochum prosecution authorities for information whether the preliminary proceedings against U. had meanwhile been terminated and whether a bill of indictment had been issued. Counsel further asked for information whether a possible trial was to be conducted in Germany or in the United Kingdom. He finally requested to be granted access to the files in the proceedings under file no. 49 Js 174/08. It follows from a subsequent letter by counsel dated 19 May 2009 that his request for inspection of the files was granted. However, it is not clear on what date between 14 April and 19 May 2009 counsel actually obtained access to the file.", "39. On 15 April 2009, no appeal having been lodged by U., the penal order of 20 March 2009 became final in accordance with Article 410 of the German Code of Criminal Procedure (see Relevant domestic and international law and practice below).", "40. By written submissions dated 6 May 2009 the Hamm General Prosecution Authorities ( Generalstaatsanwaltschaft ) requested the Hamm Higher Regional Court ( Oberlandesgericht ) to declare U. ’ s extradition to the United Kingdom inadmissible since U. had been convicted by final decision of a German court for the offence underlying the extradition request and the sentence imposed upon him was currently in the process of being executed. His extradition would therefore be contrary to the ban on double jeopardy as reflected in section 9 (1) no. 1 of the Act on Cooperation in Criminal Matters as well as Article 3 no. 2 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JI) (see Relevant domestic and international law and practice below).", "41. By a decision of 14 May 2009 the Hamm Higher Regional Court, endorsing the reasoning of the Hamm General Prosecution Authorities, declared U. ’ s extradition inadmissible.", "42. By a letter of 27 May 2009 the Hamm Chief Prosecutor communicated the Higher Regional Court ’ s decision to the Colchester Magistrates ’ Court in Chelmsford, United Kingdom.", "43. By a letter of the same day the Bochum Chief Public Prosecutor, in reply to the CPS ’ s information request of 23 March 2009, explained that he had been obliged by operation of domestic law to instigate criminal investigations against U. after having learned of the circumstances of Mr Gray ’ s death through the CPS ’ s request for assistance dated 21 April 2008. He specified that the domestic proceedings had meanwhile been terminated and that U. had been convicted by a final decision of the Witten District Court for having negligently caused Mr. Gray ’ s death. A copy of the related penal order of 20 March 2009 was attached to the letter.", "44. On 1 July 2009 a meeting between the representatives of the Bochum prosecution authorities, the CPS and Cambridgeshire police took place at Eurojust in The Hague with a view to providing explanations on the conduct of the criminal investigations and proceedings in Germany. The content of these discussions is confidential.", "45. In August 2009 and April 2010 counsel for the second applicant was again granted access to the files in the terminated criminal proceedings against U. under file no. 49 Js 174/08.", "46. As a consequence of the German authorities ’ decision not to extradite U., the criminal investigations in the United Kingdom were discontinued.", "C. Subsequent investigations and proceedings against U. in Germany", "1. The proceedings regarding U. ’ s fitness to practice medicine before the Arnsberg District Government", "47. After U. had informed the Arnsberg District Government of Mr Gray ’ s death in March 2008, the competent District health authorities commenced investigations regarding U. ’ s fitness to practice as a doctor ( approbationsrechtliches Verfahren ). Within the scope of their investigations the health authorities, inter alia, conducted interviews with U. on two occasions in March 2009 and November 2010 with a view to clarifying the circumstances of the incidents of 16 February 2008 and with a view to examining U. ’ s fitness to practice in general. Furthermore, at the applicants ’ request a meeting was arranged between them and representatives of the Arnsberg District Government on 27 September 2010 on the occasion of which they provided further information on the circumstances of the case.", "48. Following completion of their investigations by the end of 2010 the health authorities, considering U. ’ s professional conduct over the last 30 years in Germany, the fact that he had committed himself to refrain from practising medicine abroad in the future and taking into account the particular circumstances under which U. ’ s medical malpractice had occurred, found that there was nothing to establish that U. would commit a similar error of treatment in Germany or that he lacked the necessary qualifications for practising medicine. Consequently, the health authorities held that there was no need to suspend or revoke U. ’ s licence to practice medicine in Germany and discontinued the proceedings regarding U. ’ s fitness to practice.", "2. The disciplinary proceedings before the Münster Administrative Court", "49. By written submissions of 15 April 2010 the Westphalia- Lippe Medical Association applied for the opening of disciplinary proceedings against U. for breach of his professional duties in connection with the incidents in the United Kingdom on 16 February 2008.", "50. By a decision dated 27 April 2011 of the competent Münster Administrative Court sitting in a special formation as disciplinary jurisdiction for the healthcare professions ( Berufsgericht für Heilberufe ) U. was reprimanded for having disregarded the standards of the medical profession on the occasions of three patient consultations on 16 February 2008 in the United Kingdom, in particular for having committed a grave error in the treatment of Mr Gray, and fined him 7,000 EUR. The decision became final on 4 June 2011.", "D. Subsequent investigations and proceedings against U. in the United Kingdom", "51. A number of further investigations and proceedings were instituted in the United Kingdom following Mr. Gray ’ s death. An Inquest into the circumstances of the incident was held by the Cambridgeshire Coroner from 14 January to 4 February 2010. The latter not only returned the verdict that the deceased had been unlawfully killed as a consequence of the inadequate treatment administered by U. but also pointed explicitly to the deficiencies in the recruitment, training and supervision of foreign locum doctors in the United Kingdom. These deficiencies were at the origin of a subsequent report by the Coroner to the Secretary of Health and resulted in investigations by the House of Commons Health Committee as well as in an independent inquiry by the Care Quality Commission, a public body overseen by the Department of Health, which came to similar conclusions as the Inquest and identified related shortcomings in the British health system. Moreover, on the occasion of proceedings conducted by the General Medical Council regarding U. ’ s fitness to practice in the period from 2 to 18 June 2010, the circumstances of Mr Gray ’ s death were further investigated and additional evidence from expert witnesses and the deceased ’ s next of kin was considered. The GMC Fitness to Practice Panel considered that U. had breached several of the basic principles of good medical practice and decided to formally strike U. ’ s name from the medical register in the United Kingdom. In addition, in 2009 the applicants brought civil claims for damages for unlawful killing arising out of negligence with the High Court against U., TCN as well as Cambridgeshire PCT in the United Kingdom. The applicants ’ compensation claims were settled with respect to all three defendants by consent orders of December 2009, January and August 2010." ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE", "A. Relevant German law in connection with the criminal proceedings instituted against U.", "52. Pursuant to Article 222 of the German Criminal Code ( Strafgesetzbuch ) a person causing the death of another person through negligence shall be liable to imprisonment of not more than five years or a fine. Article 12 stipulates that unlawful acts punishable by a minimum sentence of less than one year ’ s imprisonment or by a fine shall be qualified as misdemeanours. Article 56 §§ 1 and 2 of the Criminal Code provides that prison sentences which do not exceed two years may be suspended and probation be granted under the conditions specified in that provision.", "53. Articles 5 to 7 of the Criminal Code deal with the jurisdiction of Germany for offences committed abroad. The relevant part of Article 7 stipulates that German criminal law shall apply to offences committed abroad if the act constitutes a criminal offence at the place where it was committed and if the offender was a German national at the time he committed the offence.", "54. In accordance with Article 152 of the German Code of Criminal Procedure ( Strafprozessordnung ) the public prosecution authorities shall, as a rule, be obliged to take action in relation to all prosecutable criminal offences, provided there are sufficient factual indications that an offence was committed. Article 160 stipulates that as soon as the public prosecution authorities obtain knowledge of a suspected criminal offence either through a criminal complaint or by other means it shall investigate the facts to decide whether a bill of indictment is to be issued.", "55. The rules concerning a conviction of an offender by penal order are to be found in Articles 407 to 412 of the Code of Criminal Procedure. Article 407, as far as relevant, provides that in proceedings before the criminal court judge a sentence for an offence that qualifies as a misdemeanour may be imposed by a written penal order without a main hearing upon written application by the public prosecution office. The public prosecution authorities shall file such application, if they do not consider a main hearing to be necessary given the outcome of the investigations. The application shall refer to specific legal consequences. It shall constitute the formal bill of indictment. Only certain sentences may be imposed for an offence by penal order, such as, inter alia, a fine or - where the accused is represented by counsel - imprisonment not exceeding one year, provided its execution is suspended on probation. In the case of suspension on probation, it is possible to impose in addition the payment of a certain sum of money for the benefit of a non-profit organisation or the treasury (Article 56b § 2 of the Criminal Code). Article 408 § 3 stipulates that the judge shall comply with the public prosecutor ’ s application if he has no reservations about issuing the penal order. He shall set down a date for the main hearing if he has reservations about deciding the case on the basis of a written procedure, if he wishes to deviate from the public prosecutor ’ s legal assessment in the application to issue the penal order, or if he wishes to impose a legal consequence other than the one applied for by the public prosecutor and the latter disagrees. In accordance with Article 409 of the Code of Criminal Procedure the penal order shall contain information as regards, inter alia, personal data of the defendant and of any other persons involved, the offence the defendant is charged with, the time and place of its commission, the evidence on which the statement of facts and legal assessment are based as well as the legal consequences imposed. It should further advise on the possibility of filing an objection against the penal order and that the latter shall become effective and executable if no such objection is lodged within the time-limit of two weeks following its service in accordance with Article 410 of the Code of Criminal Procedure. Where no objection is lodged the penal order shall be equivalent to a final judgment.", "56. Pursuant to Article 201 of the Code of Criminal Procedure the presiding judge shall communicate the bill of indictment to the persons entitled to join the prosecution as joint plaintiffs ( Nebenklagebefugte ) if they so request. Article 395 provides that a person whose children, parents, siblings, spouse or civil partner were killed through an unlawful act and thus qualify as aggrieved persons of such act may join the public prosecutor as joint plaintiffs to the prosecution ( Nebenkläger ). Pursuant to Article 396 § 1 a declaration to join in penal order proceedings shall only take effect when the judge decides to schedule a date for the main hearing. Article 400 provides that joint plaintiffs to the prosecution may not contest a judgment with the objective of another legal consequence of the offence being imposed.", "57. Articles 406 d to 406 h grant aggrieved persons, including those whose children, parents, siblings, spouse or civil partner were killed through an unlawful act, certain participation rights in criminal proceedings conducted in respect of the underlying offence. Article 406d § 1 stipulates that aggrieved persons shall, upon request, be notified of the termination of the proceedings and the outcome of court proceedings to the extent they are concerned by them. According to Article 406f aggrieved persons may avail themselves of the assistance of an attorney or be represented by such attorney. Pursuant to Article 406 e § 1 counsel for the aggrieved person may inspect the files that are available to the court or the files that would be required to be submitted to the latter if public charges were preferred, as well as the officially impounded pieces of evidence, if he can demonstrate a legitimate interest in this regard. In the event the aggrieved persons are the children, parents, siblings, spouse or civil partner of the victim as referred to in Article 395 (see § 56 above), there shall be no requirement to demonstrate such legitimate interest. Article 406h § 1, in the version in force at the relevant time, stipulated that aggrieved persons should be informed of their rights following from Sections 406d to 406 g and of their right to join the public prosecution as plaintiffs under Article 395.", "B. Relevant German and international law in connection with the extradition proceedings instituted against U.", "58. The Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002 / 584/JHA) provides in its Article 1 that Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of the Framework Decision. Article 4 specifies that the judicial authority of a Member State may refuse to execute a European arrest warrant against a person where the latter is being prosecuted in the executing Member State for the same act as that on which the European arrest warrant is based. Pursuant to Article 3 the executing judicial authorities of a Member State shall refuse to execute a European arrest warrant if it has come to their knowledge that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State.", "59. Pursuant to section 1 of the German Act on International Cooperation in Criminal Matters ( Gesetz über die internationale Rechtshilfe in Strafsachen (IRG) ) its provisions shall govern the relations between Germany and foreign States regarding legal assistance in criminal matters. It further specifies that provisions of international treaties shall take precedence over the provisions of the Act to the extent that they have become directly applicable in the domestic legal order. Pursuant to section 80 (1) of the Act the extradition of a German citizen to a Member State of the European Union for the purpose of prosecution shall not be admissible unless measures are in place to ensure that the requesting Member State after a final conviction to a sentence of imprisonment or other sanction will offer to return the person sought, if he so wishes, to Germany for the purpose of enforcement and unless the offence has a substantial link to the requesting Member State. The competent Higher Regional Court in Germany, acting upon application of the relevant public prosecutor, decides on the admissibility of an extradition request (see section 29 of the Act). In accordance with section 83 b (1) of the Act, extradition may be refused if criminal proceedings are pending against the person sought in Germany for the same offence as the one on which the extradition request is based. Furthermore, section 9 stipulates that extradition shall not be granted in the event the offence at issue is also subject to German jurisdiction and a domestic court or other domestic authority has rendered a final decision against the prosecuted person in this respect.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "60. The applicants complained under Article 2 of the Convention, read in conjunction with the State ’ s general duty under its Article 1 to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, that Germany did not provide for an adequate or effective official investigation into their father ’ s death. They further complained that the German authorities had refused to allow U. ’ s extradition to face trial in the United Kingdom. They relied in this respect on the procedural obligations inherent in Article 2 § 1 which provides in its first sentence:", "“1. Everyone ’ s right to life shall be protected by law. ... ”", "and, alternatively, on Article 8 of the Convention which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "61. The applicants maintained in particular that the summary criminal proceedings instituted against U. in Germany had not involved a proper investigation or scrutiny of the facts of the case or the related evidence. Moreover, the German authorities had failed to inform them of the proceedings and had thus deprived the deceased ’ s next of kin of any possibility to get involved and participate in the latter.", "62. The Government contested that argument.", "63. The applicants further complained that U. ’ s conviction by the Witten District Court could no longer be challenged since it had become final. They relied on Article 13 in this respect, which reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "64. The Court finds that the entirety of the applicants ’ complaints relate in substance to an alleged failure by the German authorities to discharge their procedural obligations under Article 2 § 1 of the Convention and therefore falls to be examined under that provision with no separate issue arising under its Articles 8 and 13 (with respect to Article 13 see also Gray v. Germany and the United Kingdom, cited above, § 76 ).", "A. Admissibility", "65. The Government argued that as regards part of the complaints the application was inadmissible since the applicants had failed to exhaust domestic remedies. They contended, in the alternative, that there had been no breach of Article 2 § 1 of the Convention and that the application should be rejected as being manifestly ill-founded.", "66. The Government conceded that the applicants did not have available an effective remedy under German law in the meaning of Article 35 § 1 of the Convention as regards their complaint that the criminal proceedings in Germany had not involved a proper investigation into their father ’ s death. They specified in this respect that German law did not provide for a right to request particular measures of investigation by the prosecution in criminal proceedings against third parties or to challenge the investigative authorities ’ measures in such proceedings. German criminal procedure did also not grant the next of kin of a crime victim the right to challenge the decision of the prosecution authorities and the domestic courts to prosecute and convict the perpetrator of an offence which, as in the instant case, qualified as a misdemeanour in summary proceedings without a main hearing.", "67. The Government submitted that, by contrast, the applicants would have had the possibility to complain about the German prosecution authorities ’ alleged failure to inform them about the proceedings against U. in their capacity as next of kin of the deceased in accordance with Article 406 d et seq. of the Code of Criminal Procedure. The Government maintained, however, that such a complaint would not have had a prospect of success since the domestic authorities had fully complied with the applicants ’ related information requests throughout the proceedings and had thus respected their related rights.", "68. The applicants argued that the Government appeared to concede that they had not had available an effective domestic remedy in respect of their complaints.", "69. The Court reiterates that the obligation under Article 35 requires only that an applicant should have normal recourse to the remedies likely to be effective, adequate and accessible. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success (see among other references, Sejdovic v. Italy [GC], no. 56581/00, §§ 45 and 46, ECHR 2006 ‑ II ). The Court notes that in the instant case the Government themselves indicated that in respect of part of the applicants ’ complaints domestic law did not provide for an effective domestic remedy whereas the available remedy in respect of the remainder of the complaints would not have had any prospect of success.", "70. Having regard to the above considerations the Court dismisses the Government ’ s objection of non-exhaustion of domestic remedies. Neither does the Court find the complaints manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It accordingly declares the application admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicants", "71. The applicants maintained that given the gravity of the offence committed by U., the summary written penal order proceedings conducted against him in Germany and the sentence imposed by the Witten District Court were not sufficient to discharge the procedural guarantees enshrined in Article 2 § 1. The criminal proceedings in Germany had not involved a proper investigation or scrutiny of the facts of the case or the related evidence. In this respect the applicants, whilst accepting that U. had confessed in writing that his medical malpractice had been at the origin of their father ’ s death, pointed to the fact that he had never been formally interviewed by the German prosecution authorities or trial court.", "72. The applicants conceded that, in the generality of cases, and so as not to overburden the judicial system, a Member State could legitimately allocate a proportion of its criminal caseload to written proceedings. The instant case was however atypical due to its international dimension resulting from the fact that investigations had been simultaneously pending in the United Kingdom and that the British police authorities had informed their German counterparts of their continued intention to take action against U. In this context the applicants also pointed to the fact that in 2007 two incidents had been reported where locum doctors having previously trained and practised in Germany had treated patients in the United Kingdom and had administered overdoses of diamorphine from palliative care boxes to patients on two separate occasions. The applicants took the view that in an unusual and sensitive case like the present one the prosecution authorities ’ decision to apply for a conviction by penal order in summary proceedings was open to question.", "73. The applicants further submitted that the Bochum prosecution authorities had not informed them of their various procedural rights in their capacity as next of kin of the deceased in accordance with Article 406 h of the Code of Criminal Procedure (see Relevant domestic and international law and practice above) which, as a consequence, had not been effective in practice. Moreover, they had not been able to exercise their right to join the public prosecutor as plaintiffs in the proceedings against U. since the prosecution authorities had omitted to notify counsel for the second applicant mandated in Germany of the termination of the investigations and of their decision to charge U. by means of an application for a penal order. Insofar as German criminal procedure did not impose an express obligation on the prosecution authorities to keep potential joint plaintiffs to the prosecution informed on the state of progress of pending (preliminary) criminal proceedings, the applicants argued that domestic law failed to give full effect to the procedural guarantees inherent in Article 2 § 1. They contended in this connection that the German authorities had concealed their intention to prosecute and convict U. in Germany with a view to preventing his extradition to the United Kingdom where he would have expected a heavier sentence for having caused their father ’ s death through negligence.", "(b) The Government", "74. The Government argued that German legal order provided for an effective and independent judicial system with a view to establishing the cause of deaths resulting from medical malpractice and with a view to making those responsible for the death of patients accountable, in accordance with the procedural guarantees enshrined in Article 2 § 1 as specified in the Court ’ s case- law (citing Šilih v. Slovenia [GC], no. 71463/01, §§ 192 and 195, 9 April 2009, and Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002 ‑ I). Within the framework of such judicial system, the background and circumstances of Mr Gray ’ s death had been promptly and thoroughly investigated and assessed.", "75. The Government maintained that, contrary to the applicants ’ submissions, the fact that U. had been tried in summary criminal proceedings without a main hearing had had no impact on the scope and quality of the investigations underlying his conviction. Preliminary criminal proceedings leading to a suspect ’ s conviction by penal order did not differ from those that were followed by a main hearing.", "76. The Government explained that pursuant to Article 407 of the Code of Criminal Procedure (see Relevant domestic and international law and practice above) the public prosecution authorities were under an obligation to apply for an accused ’ s conviction by means of a penal order if in the course of the criminal investigations in respect of a misdemeanour sufficient material had been gathered to allow a complete assessment of the case by the criminal court and a main hearing could not be expected to lead to any deviation from the investigation results. The Government contended that these requirements had been clearly met in the instant case. They further took the view that the conduct of a main hearing had also not been necessary for special or general preventive purposes ( aus Gründen der Spezial - oder Generalprävention ). They specified in this context that, having regard to the particular circumstances under which the medical malpractice leading to Mr. Gray ’ s death had occurred and the fact that U. did not have a criminal record in Germany, there had been nothing to establish that he would commit a similar error of treatment in Germany.", "77. Accordingly, the prosecution authorities ’ decision to apply for U. ’ s conviction by penal order had been justified and the applicants ’ right to join the prosecution as plaintiff had not become effective pursuant to Article 396 § 1 of the Code of Criminal Procedure since no main hearing had been scheduled by the trial court (see Relevant domestic and international law and practice above). In this connection the Government pointed to the fact that potential joint plaintiffs to the prosecution did not have available a legal remedy to challenge the domestic authorities ’ decision to convict an accused in summary proceedings without a main hearing. For this reason, German criminal procedure did also not impose an obligation on the prosecution authorities to inform potential joint plaintiffs to the prosecution of their decision to apply for a penal order.", "78. The Government further argued that the applicants ’ rights in their capacity as the deceased ’ s next of kin had been fully respected in the course of the criminal proceedings against U. They had been granted effective access to the investigative proceedings and had been involved in the procedure to the extent necessary to safeguard their legitimate interests in line with the requirements set out in the Court ’ s case- law. The Government maintained in this context that the applicants had been involved in the proceedings from the beginning through the intermediary of the second applicant ’ s lawyer mandated in Germany and had been informed about the proceedings instituted against U. according to their respective requests submitted to the prosecution authorities.", "79. The Government concluded that the proceedings at issue had fully complied with the procedural requirements of Article 2 of the Convention.", "2. The Court ’ s assessment", "80. The Court reiterates that the procedural obligation of Article 2 requires the States to set up an effective independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see, among other authorities, Šilih v. Slovenia, cited above, § 192; Powell v. the United Kingdom ( dec. ), no. 45305/99, ECHR 2000 ‑ V; and Calvelli and Ciglio, cited above, § 49 ).", "81. Even if the Convention does not as such guarantee a right to have criminal proceedings instituted against third parties, the Court has said many times that the effective judicial system required by Article 2 may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to personal integrity is not caused intentionally, the procedural obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case ( see Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002 ‑ VIII). In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any responsibility of the medical practitioners concerned to be established and any appropriate civil redress, such as an order for damages and/or for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged ( Calvelli and Ciglio, cited above, § 51; and Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 ‑ VIII).", "82. The State ’ s obligation under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice and that requires a prompt examination of the case without unnecessary delays (see Šilih, cited above, § 195; Calvelli and Ciglio, cited above, § 53; Lazzarini and Ghiacci v. Italy ( dec. ), no. 53749/00, 7 November 2002; Byrzykowski v. Poland, no. 11562/05, § 117, 27 June 2006 ).", "83. The Court observes that in the case at hand the applicants did not in any way suggest that their father ’ s death was intentional. They also do not seem to contest that the German legal order does in principle provide for an effective independent judicial system with a view to determining the cause of death of patients in the care of the medical profession and making those responsible for an unlawful killing arising out of negligence accountable. The Government submitted in this context that in the event of a patient ’ s death as a result of medical malpractice his or her next of kin may lodge a criminal complaint against those allegedly responsible should the prosecution authorities not already have started investigations ex officio. Moreover, next of kin may bring claims in negligence against those responsible for the victim ’ s death before the civil courts with a view to obtaining compensation. In addition, depending on the circumstances of the case, professional or administrative disciplinary measures may be imposed on those answerable for the unlawful killing.", "84. Turning to the circumstances of the instant case, the Court notes that the German prosecution authorities started criminal investigations into the circumstances of Mr Gray ’ s death on their own initiative in June 2008 after they had been informed about the incident in the context of a request for legal assistance made by their British counterparts. Within the scope of the ensuing preliminary criminal proceedings in Germany the cause of death and U. ’ s involvement in the underlying events were conclusively established in due course by the German investigative authorities. In cooperation with their British counterparts, German police officers heard, inter alia, representatives of U. ’ s professional indemnity insurance company, of the public health authorities at the Arnsberg District Government and the Westphalia- Lippe Medical Association as witnesses with a view to assessing U. ’ s medical qualifications and to establishing whether U. ’ s treatment of the deceased had amounted to medical malpractice. Further written evidence was provided by the Cambridegshire police, such as the post mortem report of 25 June 2008 as well as depositions made by Mr Gray ’ s partner following the latter ’ s death. The prosecution authorities also had regard to an expert opinion from a professor of Essen university hospital on the question whether the treatment of the deceased by U. had complied with medical standards and which opinion had been established having regard to the information contained in the Cambridgeshire police ’ s investigation files. The German prosecution authorities also made an attempt to interview U., who, however, availed himself of his right not to testify. The Court observes in this connection that U. had confessed in writing from the outset that his medical malpractice had been at the origin of Mr Gray ’ s death. The description of the incident given in his apology letter of 10 July 2008 to the deceased ’ s partner and the first applicant as well as in his letter of 11 March 2008 to his professional indemnity insurance company had been consistent with the testimonies obtained from the further witnesses and experts examined during the investigations.", "85. In view of these circumstances, the Court is satisfied that the criminal proceedings conducted in Germany enabled the investigative authorities to determine the cause of Mr Gray ’ s death and to establish U. ’ s responsibility in this respect. Having regard to the available body of evidence taken together, the Court accepts the Government ’ s finding that the prosecution authorities ’ decision to apply for U. ’ s conviction in summary proceedings without a main hearing had been justified and that the Witten District Court had available sufficient means of evidence to proceed to a thorough assessment of the circumstances of the case and U. ’ s guilt. It further notes that there is nothing to suggest that the penal order proceedings were not conducted in accordance with domestic law or that the evidentiary conclusions reached by the prosecution authorities or the trial court had been unfounded. The Court also notes the Government ’ s argument that in view of the fact that there was nothing to establish that U. would commit a similar error of treatment when practicing as a medical doctor in Germany, there had been no grounds to exceptionally hold a main hearing with a view to enabling an enhanced public scrutiny for preventive purposes in the instant case.", "86. Turning to the applicants ’ allegations that they had not been sufficiently involved in the criminal proceedings conducted in Germany against U., the Court observes that the German prosecution authorities did not inform the applicants on their own initiative about the initiation of the criminal investigations at issue. Neither did they inform them of their decision of 12 March 2009 to apply for U. ’ s conviction by means of a penal order nor did they – being approached by the second applicant ’ s lawyer – comprehensively inform the applicants themselves of all their rights. It appears that the applicants only learned about the fact that a penal order had been issued by the Witten District Court against U. on 20 March 2009 after the order had become final on 15 April 2009.", "87. The Court recognises that, as submitted by the Government, pursuant to German criminal procedure the prosecution authorities were not obliged to inform the applicants on their own initiative about the initiation and progress of the proceedings against U. The Court is of the opinion that in the instant case such obligation does not follow from the procedural requirements inherent in Article 2 § 1 of the Convention. The Court reiterates in this context that it has previously held that in situations where the responsibility of State agents in connection with a victim ’ s death had been at stake, Article 2 § 1 required that within the scope of the investigations conducted by the authorities into the underlying events “the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests” (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 109, ECHR 2001 ‑ III (extracts), and Kelly and Others v. the United Kingdom, no. 30054/96, § 98, 4 May 2001 ). It notes that, by contrast, the present application does not concern a case where an involvement of State agents in the victim ’ s death is at issue or where the circumstances surrounding the death were suspicious or unclear. The Court further recalls that in the sphere of medical negligence the procedural obligation imposed by Article 2 does not necessarily require the provision of a criminal-law remedy and that it may therefore be arguable whether and to what extent the applicants ’ involvement as next of kin is required in the event the prosecution authorities have recourse to such a remedy on their own initiative as in the present case. The Court notes that, even assuming similar considerations as in its above cited case-law applied in the instant case, the applicants have been involved in the criminal proceedings against U. in the following manner.", "88. The Court observes, firstly, that the German prosecution authorities had initiated criminal proceedings against U. ex officio in June 2008 at a time when they had not yet been aware of the applicants as possible next of kin of the victim. It notes that neither German law nor the procedural requirements inherent in Article 2 § 1 as defined in the Court ’ s case-law impose an obligation on the prosecution authorities to search on their own initiative for a victim ’ s next of kin with a view to informing them of the institution of investigations or their procedural rights in this respect. It would be particularly burdensome for the domestic authorities to comply with such an obligation in cases like the present one where the victim was a foreigner and the events at issue occurred abroad.", "89. Subsequently, by letter of 1 October 2008, counsel for the second applicant practising in Germany informed the Bochum prosecution authorities that he had been mandated by a son of the deceased. He asked for information whether preliminary criminal proceedings were pending against U. and requested access to the relevant investigation files. Having reiterated his request by letter of 23 October 2008, counsel was informed by the prosecution authorities about the pending preliminary proceedings and forwarded copies of excerpts of the investigation file. The Court further notes that within the course of the preliminary proceedings the applicants had the opportunity to contribute to the investigations. For instance, on 6 November 2008 counsel for the second applicant transmitted U. ’ s apology letter of 10 July 2008 as well as TCN ’ s letter dated 17 April 2008 to the Bochum prosecution authorities for inclusion in the investigation file.", "90. It follows that the applicants did in fact avail themselves of their rights as aggrieved persons in the proceedings against U. pursuant to Articles 406d to 406 g of the Code of Criminal Procedure (see Relevant domestic and international law and practice above). As contended by the Government there had thus been no need for the prosecution authorities to provide further information to the applicants in this respect, in particular in view of the fact that the latter had been represented by counsel throughout the proceedings. Having regard to the fact that U. confessed from the outset that he had negligently caused Mr Gray ’ s death through medical malpractice, it must have been evident to counsel that according to German criminal procedure U. ’ s conviction by means of a penal order had been an option in the instant case.", "91. The Court finally observes that the German authorities ’ decision to convict U. in summary proceedings without previously notifying the applicants of their intention to proceed in such way did not affect the applicants ’ legitimate interests as aggrieved persons or potential joint plaintiffs to the prosecution. In this respect the Court refers to the Government ’ s submissions that as a consequence of the domestic authorities ’ justified decision to have recourse to summary proceedings and to refrain from scheduling a main hearing (see §§ 84 and 85 above ) the applicants ’ right to join the prosecution as plaintiff had not become effective pursuant to Article 396 § 1 of the Code of Criminal Procedure (see Relevant domestic and international law and practice above). The Court further accepts the Government ’ s argument that, since the circumstances of the case had been sufficiently established in the course of the investigative proceedings, a participation of the applicants in a potential main hearing, even if it might have a cathartic effect for the victim ’ s next of kin, could not have further contributed to the trial court ’ s assessment of the case. It notes in that context that the applicants have not specified which aspect of U. ’ s responsibility for medical negligence causing the applicants ’ father ’ s death has not been sufficiently clarified. Moreover, even in the event a hearing had been scheduled, pursuant to Article 400 § 1 of the Code of Criminal Procedure, the applicants would not have had the right to contest the trial court ’ s judgment with the objective of a heavier penalty being imposed on U.", "92. Having regard to the above considerations, the Court considers that there is nothing to establish that the legitimate interests of the deceased ’ s next of kin were not respected in the domestic proceedings.", "93. The Court observes that, in reality, the applicants complained about the fact that U. was convicted in Germany and not in the United Kingdom where he may have faced a heavier penalty. It notes in this context that the German authorities were obliged to institute criminal proceedings against U. by operation of domestic law once they had learned of his involvement in the events surrounding Mr Gray ’ s death and consequently had a basis for their decision not to extradite U. to the United Kingdom in accordance with the relevant domestic and international law. The Court would point out in this respect that the procedural guarantees enshrined in Article 2 do not entail a right or an obligation that a particular sentence be imposed on a prosecuted third party under the domestic law of a specific State. It reiterates in this connection that the procedural obligation under Article 2 is not an obligation of result but of means only (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002 ‑ II, and Gray v. Germany and the United Kingdom, cited above, § 95 ).", "94. The Court further finds it relevant to note that in addition to the criminal proceedings conducted against U., investigations regarding his fitness to practice as a physician had been conducted by the competent German administrative authorities. Within the scope of the investigations regarding U. ’ s fitness to practice medicine, the latter had been heard by the competent health authorities on two occasions and the applicants were granted an opportunity to provide further information on the circumstances of the case. Furthermore, as a consequence of the disciplinary proceedings instituted against U. before the Münster Administrative Court on the initiative of the Westphalia -Lippe Medical Association, the latter was reprimanded for having committed a grave error in the treatment of Mr Gray and imposed a fine. The Court recalls in this connection that in the specific sphere of medical negligence disciplinary measures may also be envisaged with a view to satisfying the procedural obligation of Article 2 (see § 81 above ).", "95. The Court concludes that in the present case the German authorities have provided for effective remedies with a view to determining the cause of the applicants ’ father ’ s death as well as U. ’ s related responsibility. There is further nothing to establish that the criminal investigations and proceedings instituted on the initiative of the German authorities in relation to Mr Gray ’ s death fell short of the procedural guarantees inherent in Article 2 § 1 of the Convention.", "96. There has accordingly been no violation of Article 2 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1948 and lives in Plovdiv.", "A. The applicant ’ s illness and the surgery she underwent in 2003", "6. In January 2000 the applicant, who had been diagnosed with invasive ductal carcinoma, underwent mastectomy of her left breast.", "7. In the beginning of 2002 the applicant began to experience pain in the left side of her chest, for which in February 2002 she underwent a bone scintigraphy. The scintigraphy found a pathological uptake of radioactive tracer in her sixth left rib. Another bone scintigraphy in May 2002 confirmed that finding. However, a computerised axial tomography scan carried out later in May 2002 showed a suspected metastasis in the area of the eighth and ninth left ribs rather than the sixth one. The doctor who performed the scan recommended a further bone scintigraphy. Two such scintigraphies, in August 2002 and in January 2003, showed the same findings as the previous two. A radiography in February 2003 showed a suspected pathological lesion in the sixth left rib. But a second computerised axial tomography scan later in February 2003 found again that the suspected metastasis was in the area of the eighth and ninth left ribs.", "8. On 26 February 2003 a panel of five medical doctors decided that the suspected metastasis was to be surgically removed.", "9. Worried that the exact location of the suspected metastasis had not been fully established, the applicant asked the surgeon who was to operate on her, Dr K.M., whether further tests were required before the operation. According to the applicant, he told her that the available imaging results were sufficient and that he would be able to identify the metastasis once he had opened up her thorax. The applicant then approached the medical doctor who had performed the mastectomy in January 2000 (see paragraph 6 above). He told her that the suspected metastasis was very small, could not be localised visually, and had to be precisely localised before any surgery. The applicant shared her misgivings in that respect with Dr K.M. and reiterated her request for further tests before the operation. However, he reassured her that the available imaging results were sufficient.", "10. Having assented to the operation by signing an informed consent form, the applicant underwent surgery on 13 March 2003. In the course of that surgery Dr K.M. removed fragments of her fourth and fifth left ribs, rather than her sixth, eighth or ninth left ribs. However, the operation report erroneously said that he had removed fragments of the eighth and ninth ribs. When talking to the applicant the next day, Dr K.M. likewise told her that he had removed fragments of those ribs, and that he had inspected her lungs.", "11. The removed rib fragments were sent for histological testing, the results of which were ready on 25 March 2003 and showed that they did not contain cancerous tissue.", "12. When seeing her hospitalisation report upon her discharge from hospital on 24 March 2003, the applicant was surprised to find that her sixth left rib had been left in place and that, instead, fragments of her fourth and fifth left ribs, where no lesions had been detected by the scans and where no cancerous tissue was present according to the histological tests, had been removed. She approached Dr K.M., who denied having made a mistake but agreed to prescribe a further bone scintigraphy, which was carried out in September 2003 and found an increased uptake of radioactive tracer in the sixth left rib and also in the fourth and fifth left ribs. A computerised axial tomography scan carried out the same month found that parts of the fourth and fifth left ribs had been removed and that the sixth left rib was fractured.", "13. The applicant asked Dr K.M. to explain all that, and he apparently again denied having made any mistake.", "14. For years after the operation, the applicant was undergoing radiotherapy and hormonal therapy.", "B. The complaints to the Ministry of Health and the hospital", "15. In late 2003 the applicant complained about the operation to the Ministry of Health. The Ministry ordered the Plovdiv Regional Health Inspectorate to carry out an inquiry and, based on its findings, on 23 January 2004 informed the applicant that in view of the inconclusive results of the medical imaging tests, the operating team had chosen to make a wide opening in the thorax, enabling them to inspect the left side of the thoracic wall from the fourth to the ninth ribs. They had decided to remove parts of the fourth and fifth ribs because they had observed macroscopic changes on them; they had not found pathological changes in the sixth rib. The reference to the eighth and ninth ribs in the operation report had been a clerical mistake.", "16. The results of the inquiry, coupled with a complaint filed by the applicant with the hospital, prompted the hospital ’ s ethical commission to review the case. It did not find any misconduct on the part of Dr K.M.", "C. The proceedings for damages against the surgeon and the hospital", "1. The proceedings before the Plovdiv Regional Court", "17. On 27 January 2004 the applicant brought a claim for damages against Dr K.M. and the hospital in which he was employed, a State-owned limited liability company. She alleged that he had (a) erroneously removed parts of two healthy ribs, the fourth and the fifth on the left, without having obtained her consent; (b) inspected her lungs, which had been unnecessary and unjustified; (c) fractured her sixth left rib; and (d) failed to remove the metastasis, which had been the very purpose of the operation.", "18. On 14 April 2004 the Plovdiv Regional Court admitted a number of medical documents, including the consent form signed by the applicant before the operation. At the request of the applicant, the court ordered an expert report, to be drawn up by an oncologist, nominated by the applicant, a thoracic surgeon, nominated by Dr K.M., and a radiologist, nominated by the court, on a number of points raised by counsel for the applicant. At the request of Dr K.M., the court ordered a second expert report, to be drawn up by another thoracic surgeon.", "19. On 2 July 2004 the court appointed a new oncologist because the one initially chosen had declined the task, ordered the applicant to present herself for examination by the experts, admitted her medical files, and heard as witnesses a surgeon who had taken part in the operation alongside Dr K.M. and another surgeon who had monitored the applicant in the hospital after the operation.", "20. The two expert reports were filed in October 2004.", "21. The report drawn up by the three experts described the different methods for detecting bone metastases, including bone scintigraphy, emphasising that their results had to be assessed cumulatively; said that when operating on cancer patients it was mandatory to inspect adjoining organs by palpation; described the extent, in their view limited, to which the removal of parts of the fourth and fifth left ribs had affected the applicant ’ s body movements; said that rib fractures were almost inevitable and very frequent in thoracotomies; said that the main principle when operating on cancer patients was that all decisions were to be made by the entire team; and opined that it would be possible to operate on the applicant again, should the need arise.", "22. The thoracic surgeon ’ s report said that the operating team had not erred from a medical point of view when carrying out the operation, and that the applicant ’ s prognosis and quality of life would have been much worse had the operation not taken place.", "23. On 20 October 2004 the court heard the four experts, including their answers to questions put by counsel for the applicant. The experts stood by their conclusions. The court then reserved judgment. However, on 5 January 2005 the court, finding that the applicant had not specified whether her preferred defendant was Dr K.M. or the hospital, reopened the proceedings and instructed her to do so.", "24. On 23 March 2005 the court asked the thoracic surgeon to deal with additional questions. He filed his supplementary report in June 2006.", "25. On 17 June 2005 the court admitted further written evidence and heard two witnesses called by the applicant. At the request of counsel for the applicant, it disqualified the thoracic surgeon on the basis that he was employed by the defendant hospital (see paragraph 51 below). The court then appointed a new expert.", "26. In his report the new expert, a thoracic surgeon from Sofia, said that the operating team had not breached good medical practice by removing parts of the applicant ’ s fourth and fifth left ribs based on their visual and tactile inspection in the course of the operation, bearing in mind that histological testing of bone tissue required time and therefore no histological conclusion could be obtained during the operation; that they had correctly inspected the applicant ’ s lungs by palpation; that rib fractures in the course of such operations were almost inevitable; that the removal of the rib fragments had not unduly affected the applicant because they had later partly regenerated; and that it could not be categorically said that the applicant had a metastasis in her sixth rib, especially bearing in mind that no further metastases had been detected for many years after the operation.", "27. On 26 October 2005 the court heard the new expert, including his answers to questions put by counsel for the applicant. He explained in detail why he stood by his conclusions. Counsel for the applicant requested a further expert report on the need for the operation. The court turned down the request on the basis that it went beyond the scope of the case.", "28. In a judgment of 11 January 2006, the Plovdiv Regional Court dismissed the applicant ’ s claim. It referred to the conclusions of the experts but said that it would not take into account the reports drawn up by the expert who had been disqualified (see paragraphs 22, 24 and 25 above). Based on those conclusions, the court found that the precise location of the suspected metastasis had not been fully established before the operation. It went on to say that the allegation that Dr K.M. had removed parts of the applicant ’ s fourth and fifth left ribs without her consent was baseless, since the written consent form that she had signed before the operation, following an explanation on the proposed procedure, had not specified the rib to be operated upon. The court further held, with reference to the expert opinions, that Dr K.M. had not erred by removing parts of the fourth and fifth left ribs, as he had observed on them tissue which he had suspected to be cancerous. The fact that the histological test had later showed otherwise had not retrospectively rendered his assessment flawed. Nor had he erred by inspecting the applicant ’ s lungs by palpation – that was standard practice in that type of operation. Furthermore, the evidence did not categorically prove that the applicant still had a metastasis in her sixth left rib, especially bearing in mind the lack of other metastases after the operation. In particular, the experts were agreed that the medical imaging results submitted by the applicant could not be conclusive on that point in the absence of a fresh histological test. Lastly, the court found that it had not been proved that the applicant ’ s sixth rib had been fractured in the course of the operation and that, in any event, such a fracture was a habitual risk in that sort of operation.", "2. The proceedings before the Plovdiv Court of Appeal", "29. The applicant appealed to the Plovdiv Court of Appeal.", "30. On 10 April 2006, at the request of counsel for the applicant, the court instructed the replacement thoracic surgeon who had acted as expert in the proceedings before the lower court (see paragraph 26 above) to draw up a supplementary report in which to address several points raised in the appeal. Counsel for the applicant also requested a fresh expert report, to be drawn up by three thoracic surgical oncologists. They asked that one of those be Dr V.T. Counsel for Dr K.M. opposed the request, arguing that Dr V.T. would be biased in favour of the applicant because he had known her for years. The court did not order the report.", "31. The thoracic surgeon ’ s supplementary report said that the applicant had correctly been subjected to surgery; that the operating team had not erred by acting on the basis of the visual and tactile findings made in the course of the operation, especially bearing in mind the uncertain results of the prior medical imaging tests; that there was no universally reliable method to establish the presence of bone metastases; that it had been impossible to mark the precise spot of the suspected metastasis before the operation; and that Dr K.M. had had the requisite qualifications to operate on the applicant.", "32. On 29 May 2006 the court admitted the report and heard the thoracic surgeon. The applicant submitted a private expert opinion which said that the removal of parts of her fourth and fifth left ribs had been needless and erroneous. This opinion could not be admitted because it had not been drawn up by court-appointed experts. The applicant however reiterated her earlier request for a fresh expert report (see paragraph 30 above), and the court acceded to it, appointing as experts two thoracic surgeons, one of whom was Dr V.T., and a thoracic surgical oncologist, all from Sofia.", "33. The experts were divided. Dr V.T., who filed a minority report, was of the view that the operation had not been necessary and had been carelessly carried out, with the removal of parts of two healthy ribs. The other two experts expressed the same views as those set out in the thoracic surgeon ’ s supplementary report (see paragraph 31 above), and came to the conclusion that the operation had been required and that the operating team had not acted out of line with good medical practice.", "34. On 18 September 2006 the court admitted the reports and heard the three experts, who each stood by the views expressed in their respective reports. On 2 October 2006 it admitted further written evidence and heard the parties ’ oral argument.", "35. On an unknown later date in 2006 the Plovdiv Court of Appeal upheld the lower court ’ s judgment. It said that it credited all expert opinions save that of the expert disqualified in the proceedings before the lower court (see paragraphs 22, 24 and 25 above) and that of Dr V.T. (see paragraph 33 above), which went against the remainder of the evidence. It went on to hold, by reference to the other experts ’ conclusions, that the operation had been necessary, and that by removing parts of the applicant ’ s fourth and fifth left ribs on the basis of a visual and tactile examination Dr K.M. had acted in line with established medical practice, even though it had later transpired that they did not contain cancerous tissue. The court came to the same conclusions as the lower court with respect to the inspection of the applicant ’ s lungs by palpation, the alleged fracture of her sixth rib, and the question whether it had been proved that she had cancer after the operation (see paragraph 28 above). On that basis, the court held that the medical team which had operated on the applicant had not acted negligently and that it had not been categorically established that the applicant had suffered damage as a result of their actions.", "3. The proceedings before the Supreme Court of Cassation", "36. The applicant appealed on points of law.", "37. In a judgment of 29 July 2008 ( реш. № 393 от 29.07.2008 г. по гр. д. № 2227/2008 г., ВКС, I г. о. ), the Supreme Court of Cassation quashed the lower court ’ s judgment and remitted the case. It held that that court had failed duly to elucidate the facts and in particular to take on an active role in the formulation of the questions to the experts. It had thus not fully clarified whether it had been necessary to operate on the applicant, whether her sixth left rib had been fractured in the course of the operation, and why it had been necessary to remove parts of her fourth and fifth left ribs. It had likewise failed to explain fully why it had disregarded Dr V.T. ’ s opinion; simply saying that it went against the rest of the evidence was not enough. On remittal, the lower court had to re-visit these points by taking into account the history of the applicant ’ s medical condition, and inquire into the need for the operation, the presence of metastases in her ribs, and the alleged worsening of her health after the operation. In so doing, it had to obtain a fresh medical expert report and enable the parties to take part in the formulation of the questions to the experts.", "4. The remittal proceedings before the Plovdiv Court of Appeal", "38. On remittal, the Plovdiv Court of Appeal ordered a fresh expert report, to be drawn up by two thoracic surgeons from Sofia and a medical imaging specialist from Plovdiv.", "39. The report said that it had been imperative to carry out the operation; that the fracture of the sixth rib had been there before the operation and had been due to the rib ’ s heightened fragility resulting from previous anti-cancer treatment; that the removal of parts of the fourth and fifth ribs had not been an error in view of the inconclusive prior medical imaging data, which had its limitations, and the visual observation of tissue that could at the time have been suspected to be cancerous; that there was no categorical medical data proving the presence of a metastasis in the sixth rib before or after the operation – the bone scintigraphies had only showed an increased uptake of radioactive tracer there – in spite of the medical treatment undergone by the applicant after the operation; that the applicant could be operated upon again, should the need arise; and that the applicant ’ s medical condition would have been much worse had she indeed had an untreated metastasis in her sixth, eighth or ninth rib for years after the operation.", "40. On 26 November 2008 the court admitted the report and heard the three experts, including their replies to questions posed by counsel for the applicant. The experts stood by their conclusions. The court also admitted other evidence submitted by the applicant.", "41. On 11 May 2009 the Plovdiv Court of Appeal again upheld the lower court ’ s judgment. It held, by reference to the reports of the three experts that it had appointed, the three experts appointed in the proceedings before the lower court, and three of the experts appointed in the first appeal proceedings (see paragraphs 21, 31, 33 and 39 above), that the operation had been required. It said that it could not follow the opinion of Dr V.T. on this point (see paragraph 33 above) because, even though the question whether it had been advisable to operate in such circumstances could be debated theoretically, the medical team treating the applicant had been faced with an exigently practical situation : the medical imaging tests had showed the presence of a suspected isolated tumour whose exact location was uncertain, and there had been for this reason only one course of action: localise the tumour using the methods of surgical diagnostics and immediately remove it. The court agreed with the experts ’ conclusions that the operating team had not erred by removing parts of the applicant ’ s fourth and fifth ribs on the basis of their suspicion that they contained cancerous tissue, even though that had turned out not to be the case. The mention of the eighth and ninth ribs in the operation report had been a clerical mistake without incidence for the applicant ’ s health. Again by reference to the experts ’ conclusions, the court fully agreed with the lower court ’ s findings with respect to the inspection of the applicant ’ s lungs by palpation, and held that it had not been proved that her sixth rib had been fractured in the course of the operation, or that a metastasis in that rib had erroneously not been removed. On that basis, it concluded that Dr K.M. had not acted negligently.", "5. The second proceedings before the Supreme Court of Cassation", "42. The applicant again attempted to appeal on points of law.", "43. In a decision of 10 November 2009 ( опр. № 1537 от 10.11.2009 г. по гр. д. № 1275/2009 г., ВКС, IV г. о. ), the Supreme Court of Cassation refused to admit the appeal for examination, holding that there was no divergent case-law on the points of law decided by the lower court and that the appeal in effect concerned that court ’ s findings of fact." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Damages for medical malpractice", "44. In Bulgarian law, compensation for damage suffered as a result of medical malpractice can be obtained by bringing a claim for damages against the medical practitioner concerned or his employer. State-owned hospitals do not bear liability under the special provisions governing the no ‑ fault liability of public authorities (see реш. № 219 от 01.07.1998 г. по гр. д. № 26/1998 г., ВКС, петчл. с-в).", "45. A report published in 2010 ( Безлов, Т., Илкова, Р., Чинарска, Д., Георгиев, Г., Ефективност на съдебната система при решаване на дела свързани с лекарски грешки Доклад. Международен институт по здравеопазване и здравно осигуряване. София, 2010 г. – Bezlov, T., Ilkova, R., Chinarska, D., Georgiev, G., Effectiveness of the judicial system in the examination of cases relating to medical errors. Report, International Healthcare and Health Insurance Institute, Sofia, 2010, p. 36) said that until 2000 there had been very few if any such claims. Although, according to a sociological survey carried out in 2009 and set out in the same report, during the previous five years only 2.2% of those who had become victim of a “medical mistake” had sought to vindicate their rights (it was unclear how many had done so through judicial channels) (ibid., pp. 10 and 30), in later years there have been a number of such cases. While in many instances the courts have dismissed the claims, there also have been cases in which they have awarded damages in relation to medical malpractice (examples include реш. № 1228 от 18.12.2008 г. по гр. д. № 4894/2007 г., ВКС, V г. о.; реш. № 565 от 19.06.2009 г. по гр. д. № 94/2008 г., ВКС, III г. о.; реш. № 1206 от 17.08.2009 г. по гр. д. № 402/2009 г., САС, ГК; реш. № 130 от 01.03.2010 г. по гр. д. № 640/2009 г., ВКС, III г. о.; реш. № 134 от 01.03.2010 г. по гр. д. № 529/2009 г., ВКС, г. о.; реш. № 508 от 18.06.2010 г. по гр. д. № 1411/2009 г., ВКС, III г. о.; реш. № 457 от 01.07.2010 г. на по гр. д. № 1264/2009 г., ВКС, III г. о.; реш. от 09.07.2010 г. по гр. д. № 8365/2009 г., СГС, appeal on points of law not admitted by опр. № 706 от 13.06.2012 г. по гр. д. № 1562/2011 г., ВКС, IV г. о.; реш. № 473 от 13.09.2010 г. по гр. д. № 1329/2009 г., ВКС, III г. о., which formed the basis for this Court ’ s decision in Daskalovi v. Bulgaria (dec.), no. 27915/06, 29 January 2013; реш. № 738 от 05.11.2010 г. по в. гр. д. № 901/2010 г., ПАС, ГК, appeal on points of law not admitted by опр. № 25 от 10.01.2012 г. по гр. д. № 233/2011 г., ВКС, IV г. о.; реш. № 628 от 19.11.2010 г. по гр. д. № 1711/2009 г., ВКС, III г. о.; реш. № 250 от 21.11.2012 г. по гр. д. № 1504/2011 г., ВКС, III г. о.; реш. № 120 от 12.06.2013 г. по гр. д. № 1330/2012 г., ВКС, III г. о.; реш. № 271 от 15.10.2013 г. по гр. д. № 1403/2012 г., ВКС, IV г. о.; реш. № 177 от 31.01.2014 г. по в. гр. д. № 2677/2013 г., САС, ГК; and реш. № 17 от 06.03.2015 г. по гр. д. № 3174/2014 г., ВКС, IV г. о. ).", "B. Experts in civil proceedings", "46. By Article 157 § 1 of the Code of Civil Procedure 1952, the court had to appoint an expert if the elucidation of a point required special knowledge that the court did not have. Article 157 § 2 provided that if the subject matter was more complex the court could appoint three experts, with each of the two parties nominating one and the court determining the third one. It also provided that if the parties contested the conclusion of the initial experts, whether one of three, the court could appoint new experts.", "47. The former Supreme Court has held that a court could only rely on an expert report that was duly reasoned (see реш. № 620 от 13.11.1991 г. по гр. д. № 722/ 19 91 г., ВС, III г. о. ).", "48. Article 161 of the Code provided that in case of divergences of opinion, each group of experts had to set out its own conclusions, and that if the court was unable to weigh up those divergences, it had to ask the experts to make additional inquiries or to appoint new experts. Regulation 18(4) of Regulations no. 23 of 18 May 1994 on medical expert reports, superseded by regulation 17(4) of Regulations no. 2 of 26 October 2011 on medical expert reports, which is identically worded, provided that medical expert reports had to explain in detail their conclusions.", "49. By Article 157 § 3, the court was not bound to accept the experts ’ conclusions but rather had to analyse them alongside the other evidence in the case. The former Supreme Court and the Supreme Court of Cassation have consistently emphasised this requirement, noting that it applied even if the parties had not contested the experts ’ conclusions (see реш. № 932 от 25.09.1991 г. по гр. д. № 699/1991 г., ВС, I г. о.; реш. № 1261 от 11.01.1995 г. по гр. д. № 2070/1994 г., ВС, IV г. о.; реш. № 622 от 04.08.2006 г. по гр. д. № 298/2005 г., ВКС, IV г. о.; реш. № 837 от 04.01.2008 г. по т. д. № 519/2007 г., ВКС, I т. о.; реш. № 1012 от 13.02.2008 г. по т. д. № 600/2007 г., ВКС, II т. о.; реш. № 1327 от 26.11.2008 г. по гр. д. № 5729/2007 г., ВКС, II г. о.; реш. № 823 от 11.01.2010 г. по гр. д. № 1763/2008 г., ВКС, IV г. о.; реш. № 393 от 01.10.2010 г. по гр. д. № 4703/2008 г., ВКС, II г. о.; реш. № 108 от 16.05.2011 г. по гр. д. № 1814/2009 г., ВКС, IV г. о.; and реш. № 762 от 20.07.2011 г. по гр. д. № 1371/2009 г., ВКС, I г. о. ). However, the court had to explain why it did not adhere to an expert opinion or why it chose to follow one expert opinion over another or none of the opinions (see реш. № 3152 от 26.12.1969 г. по гр. д. № 2365/ 19 69 г., ВС, II г. о.; реш. № 385 от 11.03.2003 г. по гр. д. № 1926/2001 г., ВКС, IV о.; and реш. № 1318 от 16.04.2009 г. по гр. д. № 5641/2007 г., ВКС, II г. о. ). In one case, the former Supreme Court held that an opinion ’ s being supported by more experts than another was not in itself a good reason for the court to follow it; the court had to rather have regard to the experts ’ qualifications (see реш. № 511 от 02.06.1993 г. по гр. д. № 83/ 19 93 г., ВС, I г. о. ).", "50. In two recent cases, the Supreme Court of Cassation applied Article 157 § 3 to quash the lower courts ’ findings of no fault on the part of surgeons and re-examine the cases itself, ruling in favour of the claimants (see реш. № 508 от 18.06.2010 г. по гр. д. № 1411/2009 г., ВКС, III г. о., and реш. № 457 от 01.07.2010 г. по гр. д. № 1264/2009 г., ВКС, III г. о. ).", "51. By Article 158 § 1, persons who were spouses, descendants or ascendants of a party, or related to a party by blood up to the fourth degree or by marriage up to the first degree, or who had a personal interest in the case, could not act as experts. Article 158 § 2 provided that a party could request the disqualification of an expert on any of these grounds. On the basis of this provision, the former Supreme Court has held that an employee cannot act as an expert in a case brought against his employer (see реш. № 640 от 05.10.1987 г. по гр. д. № 506/ 19 87 г., ВС, IV г. о. ).", "52. By Article 160 § 1, before hearing the experts, the court had to remind them of the criminal liability for giving a false or biased opinion. (This liability is set out in Article 291 of the Criminal Code 1968, which makes it an offence wilfully or negligently to give a false expert opinion before a court of law, orally or in writing.) By Article 160 § 2, the experts had to promise that they would give their opinion without bias.", "53. In March 2008 these provisions were superseded by Articles 195 to 203 of the Code of Civil Procedure 2007, which are for the most part similarly worded. However, Article 196 § 1 of the 2007 Code expands the grounds for the disqualification of an expert, saying that they are the same as those for the recusal of a judge.", "C. Informed consent", "54. By section 25(3) of the People ’ s Health Act 1973, medical treatment, unless mandatory, could only be carried out with the patient ’ s consent. By section 31(1), medical practitioners had to explain to the patient, in an appropriate manner, the nature of the illness and the purpose of the medical treatment carried out. Section 32 provided that surgical operations could, except in life-threatening circumstances in which consent could not be obtained in time, only be carried out with the patient ’ s consent.", "55. By section 87(1) of the Health Act 2005, medical procedures may as a rule only be carried out with the patient ’ s informed consent. By section 88(1), to obtain such consent medical practitioners must inform the patient of the diagnose and the character of the illness; the aims and nature of the envisaged treatment, the reasonable alternatives, and the prognosis; the risks, including side effects, pain or other inconveniences; and the likelihood of a positive effect of the envisaged treatment and the risk to the patient ’ s health if alternative methods are used or if treatment is declined. Section 88(2) provides that the information must be provided in a form and volume and at a time that enable the patient freely to choose his treatment. By section 89(1), in cases of surgery the information must be provided in writing.", "56. The Supreme Court of Cassation has noted the difference between claims for damages relating to mistakes by medical practitioners and claims for damages based on lack of informed consent (see опр. № 1174 от 22.11.2013 г. по гр. д. № 4416/2013 г., ВКС, III г. о. ).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "57. The applicant complained under Articles 3, 8 and 13 of the Convention of the lack of an effective mechanism enabling her to obtain compensation for the damage suffered as a result of the 2003 surgery.", "58. The Court finds that this complaint is to be examined solely under Article 8 of the Convention (see, mutatis mutandis, Pentiacova and Others v. Moldova (dec.), no. 14462/03, ECHR 2005-I). This Article provides, in so far as relevant:", "“1. Everyone has the right to respect for his private ... life ...”", "A. The parties ’ submissions", "59. The Government submitted that the proceedings brought by the applicant had fully complied with the requirements of Article 8 of the Convention. The courts had thoroughly and actively examined the case, admitting a number of expert reports and other evidence, but finding no medical malpractice. They had dealt with all relevant points, including whether the operation had been necessary, what was the proper approach by the operating team if the medical imaging tests were inconclusive, and whether the applicant had given informed consent to the operation and more generally whether she had been properly advised.", "60. The applicant submitted that the authorities had failed to put in place a mechanism enabling victims of medical malpractice to obtain objective opinions by independent experts and have such cases duly investigated. She referred to a report by Open Society Justice Initiative which said, inter alia, that although medical experts bore criminal liability for giving false evidence, they had a tendency to exculpate their colleagues out of professional solidarity. She also referred to scholarly articles and a seminar in which that issue had been discussed.", "61. The applicant went on to describe in detail the expert reports drawn up in her case, saying that they had arrived at mutually exclusive conclusions: that she did not have metastases but that it had at the same time been necessary to operate her; that bone metastases could not be visually detected but that the surgeon had acted in line with good medical practice when removing parts of her fourth and fifth ribs – but not of her sixth rib, where the suspected metastasis was located – on the basis of a visual and tactile inspection; that the applicant was in good health but had for years after the operation been prescribed expensive medicines with serious side ‑ effects. These points could not be properly explored without expert knowledge, but it had been open to the courts not to follow the expert opinions which had not elucidated them in a satisfactory way. However, if the courts had opted not to follow those opinions, they would have likewise had to dismiss the claim because under Bulgarian law, claimants in tort cases bore the burden of proof. The mechanism for establishing medical malpractice provided by the general law of tort was therefore deficient. It failed to achieve a fair balance between the applicant ’ s right to respect for her integrity and any hypothetical countervailing public interest. Such balance could only be struck by putting in place a special mechanism for dealing with medical malpractice that would resolve the problem with the lack of impartiality on the part of medical experts.", "B. The Court ’ s assessment", "1. Admissibility", "62. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits", "(a) General principles", "63. It is now well established that although the right to health is not as such among the rights guaranteed under the Convention or its Protocols (see Fiorenza v. Italy (dec.), no. 44393/98, 28 November 2000; Pastorino and Others v. Italy (dec.), no. 17640/02, 11 July 2006; and Dossi and Others v. Italy (dec.), no. 26053/07, 12 October 2010), the High Contracting Parties have, parallel to their positive obligations under Article 2 of the Convention, a positive obligation under its Article 8, firstly, to have in place regulations compelling both public and private hospitals to adopt appropriate measures for the protection of their patients ’ physical integrity and, secondly, to provide victims of medical negligence access to proceedings in which they could, in appropriate cases, obtain compensation for damage (see Trocellier v. France (dec.), no. 75725/01, ECHR 2006-XIV; Benderskiy v. Ukraine, no. 22750/02, § § 61-62, 15 November 2007; Codarcea v. Romania, no. 31675/04, § § 102-03, 2 June 2009; Yardımcı v. Turkey, no. 25266/05, § § 55-57, 5 January 2010; Spyra and Kranczkowski v. Poland, no. 19764/07, § § 82 and 86-87, 25 September 2012; Csoma v. Romania, no. 8759/05, § § 41 and 43, 15 January 2013; and S.B. v. Romania, no. 24453/04, § § 65 ‑ 66, 23 September 2014 ).", "64. For this obligation to be satisfied, such proceedings must not only exist in theory but also operate effectively in practice (see Gecekuşu v. Turkey (dec.), no. 28870/05, 25 May 2010, and Spyra and Kranczkowski, cited above, § 88).", "65. This entails, inter alia, that the proceedings be completed within a reasonable time (see, for an example where this was not the case, Codarcea, cited above, § 106, and, for an example where this was the case, Spyra and Kranczkowski, cited above, § 91 ).", "66. It also entails, like in the case of the parallel positive obligation under Article 2 of the Convention, the possibility to obtain effective medical expert examination of the relevant issues. For instance, the authorities must take sufficient care to ensure the independence, both formal and de facto, of the experts involved in the proceedings and the objectivity of their findings, since these are likely to carry crucial weight in the ensuing legal assessment of the highly complex issues of medical negligence (see Bajić v. Croatia, no. 41108/10, § 95, 13 November 2012, and Karpisiewicz v. Poland (dec.), no. 14730/09, § 59, 11 December 2012, as well as the earlier case of Skraskowski v. Poland (dec.), no. 36420/97, 6 April 2000, in which the same requirement was laid down in less explicit terms). A further requirement is that the experts examine carefully all relevant points and set out in enough detail the reasons for their conclusions (see Baldovin v. Romania, no. 11385/05, § 23, 7 June 2011, and Altuğ and Others v. Turkey, no. 32086/07, § § 78-81, 30 June 2015 ), and that the courts or other authorities dealing with the case then scrutinise properly those conclusions (see Csoma, § 56, and Altuğ and Others, § 82, both cited above). A system in which an opinion given by a specialised institution is automatically regarded as conclusive evidence which precludes further expert examination of the relevant issues falls afoul of this requirement (see Eugenia Lazăr v. Romania, no. 32146/05, § § 76-80, 16 February 2010; Baldovin, cited above, § 24; and Csoma, cited above, § 61 ).", "67. At the same time, the High Contracting Parties have a margin of appreciation in choosing how to comply with their positive obligations under the Convention (see, as a recent authority, Lambert and Others v. France [GC], no. 46043/14, § 144, ECHR 2015 (extracts)), and enjoy considerable freedom in the choice of the means calculated to ensure that their judicial systems meet its requirements (see, albeit in different contexts, König v. Germany, 28 June 1978, § 100, Series A no. 27; Taxquet v. Belgium [GC], no. 926/05, §§ 83 and 84, 16 November 2010; and Finger v. Bulgaria, no. 37346/05, § 120, 10 May 2011).", "68. Also, the mere fact that proceedings concerning medical negligence have ended unfavourably for the person concerned does not in itself mean that the respondent State has failed in its positive obligation under Article 8 of the Convention (see, in the context of Article 2 of the Convention, Besen v. Turkey (dec.), no. 48915/09, § 38 in fine, 19 June 2012).", "69. Lastly, it is well established that the High Contracting Parties also have a positive obligation under Article 8 of the Convention to have in place regulations ensuring that medical practitioners consider the foreseeable consequences of planned medical procedures on their patients ’ physical integrity and inform patients of these beforehand in such a way that they are able to give informed consent (see Trocellier; Codarcea, § 105; Gecekuşu; and Csoma, § 42, all cited above).", "(b) Application of these principles", "70. In Bulgaria, as in many other High Contracting Parties (see, for instance, Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000 ‑ V; Iversen v. Denmark, no. 5989/03, § 54, 28 September 2006; Colak and Tsakiridis v. Germany, nos. 77144/01 and 35493/05, § § 19-20, 5 March 2009; and Šilih v. Slovenia [GC], no. 71463/01, § 95, 9 April 2009 ), compensation for medical malpractice can be claimed under the law of tort or contract (see paragraph 44 above). In other High Contracting Parties, such claims, if directed against public hospitals, are examined under rules governing the liability of public authorities for damage (see Draon v. France [GC], no. 1513/03, § 37 and 47-48, 6 October 2005, and Byrzykowski v. Poland, no. 11562/05, § 77, 27 June 2006 ). Some High Contracting Parties also operate no-fault compensation schemes (see, for instance, Lopez v. France (dec.), no. 45325/06, 2 February 2010 ). In view of the broad margin of appreciation enjoyed by the High Contracting Parties in laying down their health care-policy (see Pentiacova and Others, cited above; Shelley v. the United Kingdom (dec.), no. 23800/06, 4 January 2008; and Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12, § 119, ECHR 2012 (extracts) ), and in choosing how to comply with their positive obligations and organise their judicial systems (see paragraph 67 above), there is no basis on which to hold that the Convention requires a special mechanism which facilitates the bringing of medical malpractice claims or a reversal of the burden of proof in such cases, as suggested by the applicant. It should further be borne in mind that in discharging their positive obligations towards the alleged victims of medical malpractice, the authorities must also have regard to counter-considerations, such as the risk of unjustifiably exposing medical practitioners to liability, which can compromise their professional morale and induce them to practise, often to the detriment of their patients, what has come to be known as “defensive medicine”.", "71. It cannot be said that seeking compensation for medical malpractice in Bulgaria by way of a claim for damages is a possibility that only exists in theory. While apparently difficult to make out, medical malpractice has been established and has led to awards of damages in a number of cases (see paragraph 45 above).", "72. The Court is furthermore unable to accept that the objectivity of the expert opinions in such cases can automatically be called into doubt by the fact that the experts are medical practitioners who are under an ethical duty not to criticise their colleagues. In Csősz v. Hungary (no. 34418/04, § § 31 and 35, 29 January 2008), in the face of an almost identical submission, the Court held that it was normal for the expert opinions in such cases to be given by medical practitioners. While those practitioners do have an ethical duty not to unduly criticise their colleagues, when acting as court-appointed experts they also bear criminal liability – of which they must be advised before they give evidence – for giving a false opinion (see paragraph 52 above). This must be regarded as a serious deterrent even if prosecutions for such offences are, in view of the complexity of the subject matter, difficult to mount in practice. There is no basis on which to hold that the Convention requires that medical expert evidence be drawn from specialised institutions. On the contrary, examples in the Court ’ s case-law show that conferring such institutions a key role in medical malpractice cases can in some instances prevent persons who have become victims of such malpractice from effectively vindicating their rights (see Eugenia Lazăr, §§ 78-80, and S.B. v. Romania, §§ 70-74, both cited above).", "73. Furthermore, Bulgarian law lays down several safeguards designed to ensure the reliability of expert evidence. Experts whose impartiality is in doubt may be disqualified (see paragraphs 51 above), and experts must give cogent reasons for their conclusions, so as to enable the courts to weigh up any divergences of opinion (see paragraphs 46 - 48 above). The courts, for their part, can appoint new experts if one of the parties contests an expert report (see paragraph 46 above), and are not bound uncritically to accept expert evidence – on the contrary, they must scrutinise it carefully (see paragraphs 49 and 50 above). Indeed, they have done so in medical malpractice cases (see paragraph 50 above).", "74. There is no evidence that these safeguards were not properly applied in the applicant ’ s case or that the experts whose opinions formed the basis for the courts ’ rulings in the case lacked the requisite objectivity. The courts disqualified one expert because he was employed by the defendant hospital, and then said that they would not have regard to his conclusions (see paragraphs 25, 28 and 35 above, and contrast, mutatis mutandis, Bajić, cited above, § § 98-101 ). They did not simply admit the written reports drawn up by the other experts, many of which were from another town (see paragraphs 26, 32 and 38 above), but on each occasion heard them give evidence in open court, in the presence of counsel for the applicant, who were able to, and did, pose questions (see paragraphs 23, 27, 32, 34 and 40 above). The courts several times ordered supplementary reports and fresh reports by new experts, to cast further light on points which had remained unclear or had been contested (see paragraphs 24, 26 and 30 - 32 above, and compare with Besen, cited above, § 38, and Eugenia Lazăr, cited above, § § 76-77 ).", "75. With regard to the question whether the courts then duly scrutinised the expert evidence (see paragraph 66 above), it should be noted that the Plovdiv Regional Court and the Plovdiv Court of Appeal both analysed that evidence in some detail ( see paragraphs 28 and 35 above ), and that the Supreme Court of Cassation then remitted the case to the Plovdiv Court of Appeal for it to remedy some omissions in that regard (see paragraph 37 above). Following that remittal, the Plovdiv Court of Appeal re-examined the case not only on the basis of the earlier expert reports, but also of a fresh and expanded report (see paragraphs 38 and 39 above). While the applicant disputed the experts ’ conclusions on a number of points, it does not appear that, following the remittal of the case, the experts left any relevant issue without consideration (contrast Altuğ and Others, cited above, § § 77-81 ), or that the Plovdiv Court of Appeal, whose judgment does not appear arbitrary, then failed duly to scrutinise their conclusions. In particular, that court gave reasons why it chose to follow the opinion of the majority of the experts rather than that of the only dissenting expert, Dr V.T., saying that even though the question whether it had been advisable to operate on the applicant could be debated theoretically, the medical team which had treated her had acted on the basis of their assessment of an exigently practical situation (see paragraph 41 above). It is not for this Court, which is not a court of appeal from the national courts, to gainsay that court ’ s findings on these points (see Yardımcı, cited above, § 59 ).", "76. The Court does not overlook that the available evidence tends to suggest that the surgeon did not properly inform the applicant of all the foreseeable consequences of the planned operation that he carried out on her. The experts who gave evidence in the proceedings for damages said that there was no reliable way of establishing the precise location or even the presence of a metastasis in a rib before or during the operation, because none of the medical imaging methods used before the operation could give certainty on that point and because histological testing of bone tissue required time, which meant that no histological conclusion could be obtained during the operation (see paragraphs 26, 31, 33 and 39 above) It does not appear that the applicant was fully made aware of this uncertainty and its consequences before agreeing to be operated upon. On the contrary, the surgeon appears to have repeatedly given her assurances in that respect (see paragraph 9 above), which the evidence obtained in the ensuing proceedings proved to be untenable. However, it does not appear that the applicant specifically emphasised that aspect of the case, which was predicated on the broader and somewhat different allegation that the surgeon had acted negligently when operating on her (see paragraphs 17 and 56 above). The Bulgarian courts cannot therefore be faulted for not delving into that issue in more depth.", "77. In view of all this, it cannot be said that the authorities did not provide the applicant an effective procedure enabling her to obtain compensation for the medical malpractice to which she alleged to have fallen victim.", "78. There has therefore been no breach of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "79. The applicant complained under Article 6 § 1 of the Convention that as a result of the lack of a system effectively ensuring the impartiality of medical experts in proceedings relating to medical malpractice she had been put at a substantial disadvantage vis-à-vis the surgeon and the hospital in the course of the proceedings for damages against them, and had not had effective access to a court in those proceedings.", "80. Article 6 § 1 of the Convention provides, in so far as relevant:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...”", "A. The parties ’ submissions", "81. The Government submitted that the proceedings brought by the applicant had been fair. They had been conducted in the usual way, with the participation of medical experts to elucidate points that required special knowledge. The independence and impartiality of those experts had been open to review by the courts, at the request of the parties to the case. That manner of proceeding was fully consistent with Article 6 of the Convention.", "82. The applicant submitted that medical experts, who were often highly qualified practitioners in a narrow field of study whose conclusions could not easily be challenged by a layperson, were indispensable in medical malpractice cases and usually predetermined their outcome. Defendant medical practitioners in such cases were far better placed than claimants to scrutinise the validity of their conclusions. There were no rules effectively ensuring the objectivity of their conclusions, whereas they had a tendency to exculpate their colleagues out of professional ethics. The risk of incurring criminal liability for giving false conclusions was not a sufficient deterrent because, in view of the highly specialised subject matter, the risk that such an offence would be exposed was a very slim.", "B. The Court ’ s assessment", "1. Admissibility", "83. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits", "84. The question whether the Bulgarian authorities took sufficient care to ensure the independence of the medical experts involved in the proceedings and the objectivity of their conclusions, which was already examined under Article 8 of the Convention (see paragraphs 72 - 74 above), could also be examined by reference to its Article 6 § 1 (see, mutatis mutandis, Mantovanelli v. France, 18 March 1997, § § 33-36, Reports of Judgments and Decisions 1997-II; Sara Lind Eggertsdóttir v. Iceland, no. 31930/04, § 47, 5 July 2007; and Placì v. Italy, no. 48754/11, § § 74-80, 21 January 2014 ). But, in view of its findings on this point under Article 8, the Court does not consider that the applicant was put at a substantial disadvantage vis-à-vis the surgeon or the hospital in the course of the proceedings for damages that she brought against them, or that those proceedings did not afford her effective access to a court.", "85. There has therefore been no breach of Article 6 § 1 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants, Dorina and Viorel-Aurel [2] Ioniță, were born in 1976 and 197 2 respectively and live in Brăila.", "A. Death of the applicants ’ son", "6. On 7 November 2005 the applicants ’ son, aged four years and nine months at that time, underwent surgery for the removal of polyps, which was performed by Dr C.B. in the State-run Brăila Emergency Hospital.", "7. Dr C.B. decided to perform the operation under general anaesthetic with tracheal intubation. The general anaesthesia was performed by Dr P.A, assisted by P.V. I., a staff nurse.", "8. After surgery the child was immediately transferred to the intensive care unit. Ten minutes after his transfer P.V. I. informed Dr P.A that the child was cyanotic and had no pulse.", "9. The child suffered a haemorrhage, causing blood to flood his lungs. A team of doctors tried to resuscitate him and clear his respiratory channels, but without any success. The child was declared dead two hours after the operation.", "10. A criminal investigation into the cause of death was opened by the Brăila police on the same day.", "11. Dr C.B. and Dr P.A. were questioned and gave written statements.", "12. An autopsy report issued by the Brăila Forensic Service ( Serviciul de medicină legală Brăila ) on 8 November 2005 said that the applicants ’ son had died of acute respiratory failure as a result of the blood that had blocked his airways and flooded his lungs. It also noted that the child had suffered from several congenital deficiencies which had probably played a role in the post ‑ operative complications : myocardia and hepatic dystrophy, and interatrial septum aneurisms.", "13. The report was sent for the approval of the commission for confirmation and supervision of the Iaşi Forensic Institute ( Comisia de avizare și control din cadrul IMF Iaşi ). On 5 May 2006 the commission confirmed that the child ’ s death had occurred after surgery and had been caused by the blood that had blocked his airways and lungs. It held that there had been a causal link between the post- operative treatment and the child ’ s death. It noted the deflation of the balloon of the catheter ( balonaşul sondei de întubaţie ), applied after post-operatively to prevent the ingress of blood into the lungs, as a possible cause of the presence of blood there and in his airways.", "14. On 12 October 2006 the superior commission of the Mina Minovici Forensic Institute examined all the documents and approved the conclusions of the commission for confirmation and supervision of the Iaşi Forensic Institute.", "B. Disciplinary proceedings", "15. On 8 November 2005 the child ’ s father lodged a disciplinary complaint against Dr C.B. and Dr P.A.", "16. The disciplinary committee of the Brăila College of Doctors opened an investigation into the patient ’ s death, collecting documents from the patient ’ s medical file and taking statements from Dr C.B. and Dr P.A., as well as from the doctors involved in the resuscitation procedure post ‑ operation. It gave its decision on 9 July 2007 by which it concluded that the child ’ s death could be included among cases of sudden death (with a frequency of 2-4 % owing to the child ’ s pre- existing medical conditions : myocardia and hepatic dystrophy, and inter-atrial septum aneurisms ). Although the committee concluded that there had been no direct link between the child ’ s death and the doctors ’ medical conduct, it reprimanded both doctors for their failure to perform the necessary pre-surgical medical tests and to seek the applicants ’ informed consent before surgery.", "17. The applicants objected to the committee ’ s conclusions and their appeal was examined by the superior disciplinary committee of the National College of Doctors.", "18. An expert medical opinion was submitted to the committee and was used by it in reaching its final conclusions. The expert noted, among other things, that the child ’ s preparation for surgery had not been appropriate as his examination before anaesthesia had been “ very superficial”; in this respect the committee noted the lack of a radioscopy of the lungs, of an EKG and an exploration of the necessary time for blood coagulation. In the expert ’ s view, the doctors had ignored the child ’ s severe congenital deficiencies as they had considered that surgery for the removal of polyps had been a “minor intervention” and therefore no special precautions had been necessary.", "19. By a decision of 6 June 2008 the superior disciplinary committee of the National College of Doctors quashed the decision of 9 July 2007 and fined each doctor 1, 000 Romanian lei ( the equivalent of approximately 220 euros (EUR) ). It found that the child ’ s pre-surgical tests had been insufficient for avoiding post- operative complications. Therefore, it held that Dr C.B. and Dr P.A. had infringed Article 53 of the Medical Deontological Code, pursuant to which a doctor should perform diagnoses with maximum diligence in order to determine the adequate treatment and avoid predictable complications that might occur for a patient under his or her care.", "20. The committee further stated that the presence of blood in the child ’ s airways could not be explained on the basis of the documents and statements in the file. It noted that all the doctors and the nurses who had given evidence stated that the balloon of the intubation catheter had been leak ‑ proof ( etanche ); however, the fact that the cause of death had been the presence of blood in the child ’ s lungs could only lead to the conclusion that such statements had been inaccurate.", "21. Relying on Articles 58 and 60 of the Deontological Code and Article 6 of Law no. 46/2003, the committee also noted that the parents had not given their informed consent.", "C. Criminal proceedings against the doctors", "1. Criminal investigation", "22. On 7 November 2005 the applicants lodged a criminal complaint alleging that the flawed surgical and post-surgical treatment received by their son had resulted in his death. They asked that those responsible be identified and held accountable for their son ’ s death. They joined the criminal proceedings as civil parties.", "23. Following a request of the Brăila Police Inspectorate, on 19 July 2006 Brăila Emergency Hospital stated that the medical staff members in charge of monitoring the child were Dr P.A. during the intervention and the child ’ s transfer to the intensive care unit and P. V. I. while in the intensive care unit.", "24. On 5 January 2007 the prosecutor ’ s office of the Brăila District Court decided to institute criminal proceedings against Dr P.A.", "25. P.V. I. was interviewed as a witness immediately after the child ’ s death, during the preliminary criminal investigation. During the criminal proceedings against Dr P.A., in spite of the fact that she had been repeatedly summoned, the investigating authorities were not able to question her as she had not been found. She had left her job at the Brăila Emergency Hospital in January 2006.", "26. The prosecuting authorities interviewed several doctors and nurses from the hospital ’ s medical staff who had been involved in the applicants ’ son ’ s post- operative care.", "27. Dr P.A. lodged a request with the investigating body for a new forensic medical report. He pointed out that there were major contradictions between the autopsy report and the opinion issued by the commission for confirmation and supervision of the Iaşi Forensic Institute.", "28. On 4 April 2007 the Brăila Police Inspectorate asked the Iaşi Forensic Institute to carry out a forensic expert report that would identify the cause and circumstances of the child ’ s death. The Iaşi Forensic Institute replied that a new forensic report could not be produced as the evidence examined had been sent by Brăila Forensic Service to the Mina Minovici National Forensic Institute.", "29. On 20 February 2008 Dr P.A. submitted an extrajudicial expert report. It stated that the cause of death had not been the presence of blood in the child ’ s lungs owing to a lack of adequate post- operative monitoring, but the post- operative reaction of a child with pre- existing medical conditions (cardiac congenital malformation, hepatic dystrophy, renal stasis, mesenteric adenopathy and hemorrhagic enterocolitis) mentioned in the medical records kept by the child ’ s paediatrician. The report noted a generalised inflammatory reaction associated with diffused haemorrhages in his digestive tract, lungs, heart and spleen.", "30. The applicants gave evidence to the investigating authorities on 23 January 2008. They contended that they had not been properly informed about the risks of surgery and of the general anaesthetic and consequently they had not given their consent for such interventions.", "31. On 30 June 2008 the Brăila Police Inspectorate ordered that a new forensic report be produced by the Mina Minovici National Forensic Institute. The applicants, Dr P.A. and the investigating authorities submitted several questions for the forensic experts. They asked, among other things, whether the pre-existent medical condition of the child had influenced his unfavourable post-surgical evolution and whether administration of a general anaesthetic had been the right option, given the age and the diagnosis of the child. The child ’ s father also asked the Forensic Institute whether the post- operative monitoring of the child had been adequate.", "32. However, on 28 July 2008 the Forensic Institute replied that it could not deliver such a report because under the relevant domestic legislation a new forensic expert report could not be ordered unless there were new medical and factual elements. Accordingly, the Forensic Institute stated that it maintained its previous opinion.", "33. Copies of the documents from the disciplinary file were added to the criminal file.", "34. On 30 September 2008 the prosecutor ’ s office of the Brăila County Court decided to discontinue the criminal proceedings against Dr P.A., finding, in the light of evidence gathered in the case, that there had been no element of criminal negligence in his conduct. That decision was upheld on 10 November 2008 by the chief prosecutor of the same prosecutor ’ s office.", "2. Court proceedings", "35. A complaint by the applicants against the prosecutors ’ decisions was allowed by the Brăila District Court on 25 February 2009. The prosecutors ’ decisions were quashed and the District Court kept the file for fresh consideration. It considered that although a new forensic report had not been produced, the decision of the superior committee of the National College of Doctors provided enough information concerning the cause of death, which had been the presence of blood in the child ’ s airways owing to the balloon of the tracheal catheter not being tight enough. It considered that it should be established whether the post- operative monitoring of the child by Dr P.A. had been appropriate and more precisely whether Dr P.A. should have noticed the non-functioning catheter.", "36. Dr C.B. and Dr P.A. gave statements before the District Court on 18 January 2010. Moreover, members of the medical staff that had attempted resuscitation gave evidence (on 1 March, 20 April and 8 June 2008). Some of them maintained that the blood in the lungs could be explained by the resuscitation attempts and that the balloon of the catheter had been kept tight all the time after surgery.", "37. P.V.I. did not give evidence before the court as, although summoned, she did not attend the hearings. According to several reports issued by bailiffs seeking to bring her before the court, she had left the country for Italy. Based on the material in the case file it does not appear that the court took special measures to identify her address there.", "38. The child ’ s father gave evidence before the Brăila District Court on 18 January 2010. He reiterated his claims for pecuniary and non ‑ pecuniary damages. He again contended that the doctors had not informed his family about the risks of surgery and in particular of the general anaesthetic and accordingly they had not given their informed consent.", "39. On 1 October 2010, after several hearings, the Brăila District Court acquitted Dr P.A. and dismissed the applicants ’ civil claim as unfounded.", "40. The District Court took into account the extrajudicial forensic report submitted by Dr P.A. It noted that the conclusions of the extrajudicial report were in total contradiction to the conclusions of the medical report of 8 November 2005 and the conclusions of the commission for confirmation and supervision of the Iaşi Forensic Institute.", "41. This judgment was upheld by a decision of the Brăila County Court delivered on 21 December 2010.", "42. The County Court did not take into account the conclusions of the extrajudicial forensic report as in its opinion it represented only extrajudicial evidence which could not set aside the conclusions of competent forensic institutes.", "43. The County Court concluded that the death of the child had been caused by the presence of blood in his airways and lungs. However, based on the evidence in the file, it was not possible to explain when the blood had entered the child ’ s airways because of the deflation of the catheter ’ s balloon. Moreover, the post- operative complications occurred ten minutes after the child had been transferred to the intensive care unit, while under the supervision of P.V.I. The County Court held therefore that Dr P.A. could not be held responsible for the deflation of the catheter ’ s balloon after surgery.", "44. The applicants lodged an appeal on points of law against that decision. They requested that the court extend the criminal investigation to P.V.I., who had had the child under her supervision in the intensive care unit.", "45. By a decision of 15 April 2011 the Galaţi Court of Appeal allowed the applicant ’ s appeal and quashed the decisions of the lower courts. Noting that the lower courts had not examined the allegation made by the child ’ s parents that they had not given their consent for surgery and the general anaesthesia, the appeal court sent the file back to the Brăila District Court.", "46. On 22 December 2011 the Brăila District Court acquitted Dr P.A. It held that no causal link existed between the death of the child and the presumed omission of the medical authorities to obtain the applicants ’ informed consent for the administration of a general anaesthetic.", "47. It further held that it could not establish beyond any reasonable doubt that Dr P.A. had been negligent in ensuring the tightness of the catheter ’ s balloon after surgery. Consequently, the court dismissed the applicants ’ civil claim as unfounded.", "48. The court also dismissed the applicants ’ request to extend the criminal investigation to P.V.I. on the grounds that, under Article 337 § 1 of the CCP, only the prosecutor could ask for the extension of the investigation to other persons while the proceedings were pending before the courts.", "49. This judgment was upheld by a final decision delivered by the Galaţi Court of Appeal on 22 May 2012.", "D. Separate civil proceedings", "50. On 28 October 2008 the applicants instituted separate civil proceedings against the Brăila Emergency Hospital and doctors C.B. and P.A. in the Brăila District Court for the pecuniary and non ‑ pecuniary damages they had sustained as a result of their son ’ s death.", "51. On 23 April 2009, referring to Article 19 of the CCP (see paragraph 5 7 below), the court stayed the civil proceedings pending a final decision in the criminal proceedings. It noted that the outcome of the civil proceedings would depend to a large extent on the verdict in the criminal proceedings.", "52. On 29 January 2013 the Brăila District Court lifted the stay of the civil proceedings. However, the applicants gave up their separate civil claim on 6 March 2013." ]

[ "II. RELEVANT DOMESTIC LAW", "53. The relevant legal provisions and the domestic case-law and practice concerning the delivery of forensic reports, as well as the liability of medical staff, are described in Eugenia Lazăr v. Romania (no. 32146/05, §§ 41-54, 16 February 2010).", "54. Law no. 95/2006 introduced the notion of medical negligence as a basis for the establishment of liability of medical staff and created an obligation on them to obtain insurance for any civil liability resulting from their work (see Eugenia Lazăr, cited above, § 54).", "The civil responsibility for the damage caused is personal and proportionate to the degree of responsibility (Article 643 ). The Regulations adopted on 14 March 2007 by the Ministry of Health (“the Regulations”) provided that the liability must be established by a court (Article 3 § 2).", "Doctors have a legal obligation to insure themselves against claims of malpractice (Article 656). Under Article 662, damages are paid to the patient if the parties reach an agreement or, in the absence of such an agreement, if the doctor ’ s liability is established by a court.", "55. A series of laws concerning the public health service and patients ’ rights establishes an obligation to inform a patient about any surgical procedure proposed, the risks involved in the procedure, alternative treatment, and diagnosis and prognosis: Laws nos. 3/1978 and 306/2004 on public health insurance; Law no. 74/1995 on the establishment and functioning of the College of Doctors; Law no. 46/2003 on patients ’ rights (“Law no. 46/2003”); and Law no. 95/2006 on reform of the medical sector (“Law no. 95/2006”).", "56. Under Article 37 of Law no. 46/2003, a breach of a patient ’ s right to be informed and consulted may entail disciplinary or criminal action against the medical practitioner, depending on the applicable law. The Law also regulates the patient ’ s right to seek a second medical opinion ( section 11).", "57. The relevant provisions of the CCP in force at the time of the pertinent facts read as follows:", "Article 15", "“A person who has suffered civil damage may join the criminal proceedings ...", "He or she may do so either during the criminal investigation ... or before the court ...”", "Article 19", "“(1) If a victim has not joined criminal proceedings as a civil party, he or she can initiate separate proceedings before the civil courts for damages arising from the offence.", "(2) Civil proceedings shall be stayed pending a final judgment of the criminal courts.", "(3) A victim who has joined criminal proceedings as a civil party may also initiate separate civil proceedings if the criminal proceedings are stayed. If the criminal proceedings are reopened the civil proceedings opened before the civil courts shall be stayed.", "(4) A victim who has initiated civil proceedings before a civil court may abandon these proceedings and lodge a request with the investigating authorities or the trial court if criminal proceedings have subsequently been opened...The civil proceedings may not be abandoned if the civil court has delivered a judgment, even if the judgment is not a final one.”", "Article 22", "“The findings contained in the final judgment of a criminal court concerning the issue of whether the act in question was committed and the identification of the perpetrator and establishment of his or her guilt are binding on a civil court when it examines the civil consequences of the criminal act.”", "Article 346", "“(1) In the event of a conviction or an acquittal, or the termination of a criminal trial, the court shall deliver a judgment in which it also decides on the civil action.", "(2) Where acquittal has been pronounced ... because one of the constitutive elements of an unlawful act is missing, the court may award pecuniary and non-pecuniary damages in accordance with civil law.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "58. Relying on Article 6 § 1 of the Convention, the applicants complained that the investigation into the circumstances of the death of their son had been ineffective.", "59. The Court is the master of the characterisation to be given in law to the facts and can decide to examine complaints submitted to it under another Article than that quoted by the applicant (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I). It will therefore examine the complaint under Article 2 of the Convention ( see Istrățoiu v. Romania (dec.), no. 56556/10, § 56, 27 January 2015 ), which reads as follows:", "“1. Everyone ’ s right to life shall be protected by law ...”", "A. Admissibility", "60. The Government raised a preliminary objection of non-exhaustion of domestic remedies. They argued that the applicants should have continued the separate general action in tort against the doctors or other persons they considered responsible for the death of their son after their civil claim joined to the criminal proceedings had been dismissed by the Brăila County Court on 22 December 2011. They pointed out that the applicants had given up their separate civil action on 6 March 2013.", "61. The Government supported their arguments that proceedings under the general law of tort would have been an effective remedy in the circumstances of the case by referring to the Court ’ s findings in the cases of Codarcea v. Romania ( no. 31675/04, §§ 38-48, 2 June 2009 ), Stihi ‑ Boos v. Romania (dec.) ( no. 7823/06, §§ 42-43, 11 October 2011 ) and Floarea Pop v. Romania ( no. 63101/00, § 47, 6 April 2010 ).", "62. The applicants contested the Government ’ s position. They argued that immediately after their son ’ s death they had lodged disciplinary and criminal complaints, to which they had attached a civil claim. After a few months, as they had considered that the criminal investigation had been too slow and they had become afraid that their civil action would have become time-barred, they had lodged a separate action in tort. However, their compensation in the separate civil action depended on the findings of the criminal courts. Moreover, the criminal courts dismissed their civil complaint lodged together with the criminal complaint. Therefore, as the criminal courts had found no negligence in the pre - and post- operative treatment of their son, they had given up the separate civil action.", "63. The Court considers that the Government ’ s objection is closely linked to the substance of the applicants ’ complaints. It therefore joins the objection to the merits of the case.", "64. It also notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "65. The applicants complained that the criminal investigation into the death of their son had been ineffective and had exceeded a reasonable time. They claimed in particular that the domestic prosecuting authorities and courts had not exercised their active role nor examined whether P.V.I., the nurse in charge of the post- operative monitoring of the child, and Dr C.B., who performed the operation, had carried out their professional duties.", "66. The applicants also contended that they did not agree with the Government ’ s submissions that the findings of the forensic report stating that the cause of death had been the deflation of the catheter ’ s balloon could have been rebutted by statements of witnesses and defendants. Moreover, they pointed out that the investigation performed by the prosecuting authorities had been ineffective as despite the findings of the National College of Doctors and of the forensic experts they had decided to discontinue the criminal proceedings against Dr P.A. and had not examined at all the liability of Dr C.B. and P.V.I.", "67. The applicants also reiterated that they had not been informed about the nature and the risks of the procedure and accordingly they had not given their informed consent in writing as requested by law, neither for surgery nor for the general anaesthesia.", "68. The Government contended that the criminal investigation had been comprehensive and thorough, in compliance with the requirements of Article 2 of the Convention. The measures taken by the authorities had been appropriate and sufficient to comply with the requirements of Article 2 of the Convention.", "69. The Government considered that the present case differed significantly from Eugenia Lazăr ( cited above ). They pointed out that while in the latter case the superior commission of the Mina Minovici Institute had not been able to produce a new reasoned report to clarify contradictions between different forensic reports, in the present case the only contradictions that could be seen were between medical forensic documents on the one hand, and the documents drafted in the disciplinary proceedings and the witnesses ’ statements on the other.", "70. According to the Government, the domestic courts examined all the evidence in the file and could not find beyond any reasonable doubt that Dr P.A. had been negligent in performing his duties. Moreover, Dr P.A. ’ s departures from established procedures were identified and sanctioned by the disciplinary bodies.", "71. For the reasons above, they concluded that the State ’ s responsibility could not be engaged under Article 2 of the Convention.", "2. The Court ’ s assessment", "(a) General principles", "72. The Court reiterates that the positive obligations imposed on the State by Article 2 of the Convention imply an obligation to put in place an efficient and independent judicial system by which the cause of death of an individual under the responsibility of health -care professionals can be established, whether they are working in the public sector or employed in private organisations, and, if necessary, to ensure accountability for their actions (see, in particular, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002 ‑ I).", "73. Although it cannot be inferred from the foregoing that Article 2 may entail the right to have third parties prosecuted or sentenced for a criminal offence (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 238, ECHR 2016), the Court has stated on a number of occasions that an effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged.", "However, the obligations of the State under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice within a time-span such that the courts can complete their examination of the merits of each individual case (see Calvelli and Ciglio, cited above §§ 51-53; Vo v. France [GC], no. 53924/00, §§ 89-90, ECHR 2004 ‑ VIII, and Byrzykowski v. Poland, no. 11562/05, § 105, 27 June 2006 ).", "74. The requirements of an effective investigation also include, among other things, the need for “thoroughness”, which means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident (see Elena Cojocaru v. Romania, no. 74114/12, § 113, 22 March 2016 ).", "(b) Application of the general principles to the present case", "75. Turning to the facts of the present case the Court notes that following the operation performed by Dr C.B. under general anaesthetic administered by Dr P.A., the applicants ’ son lost his life in hospital.", "76. A criminal investigation was opened. The investigating authorities ordered an autopsy and took statements from the two doctors and the applicants. This preliminary investigation ended in decisions by the prosecuting authorities on 30 September and 10 November 2008 not to commence criminal proceedings against Dr P.A. as no medical error by him had been found (see paragraph 34 above). The prosecutors did not assess the liability of Dr C.B. concerning his medical conduct.", "77. On 25 February 2009 these prosecuting authorities ’ decisions were quashed by the Brăila District Court and the opening of criminal proceedings against Dr P.A. was ordered. The District Court observed that the investigating authorities had ignored the conclusions of the committee of the National College of Doctors, which had noted irregularities in the post ‑ operative monitoring of the child (see paragraph 35 above).", "78. The Court, like the domestic investigation authorities, notes significant discrepancies among the different forensic medical reports drafted during the criminal prosecution. The result was that the investigating authorities considered that a new forensic report was necessary for the determination of the cause of death (see paragraphs 28 and 31 above).", "79. The applicants and Dr P.A. forwarded questions to be answered by forensic experts. These questions were relevant and in answering them the forensic authorities could have helped shed light on the unfortunate events that led to the applicants ’ loss.", "80. However, their requests to the Mina Minovici National Forensic Institute for a forensic report were rejected as the applicable law did not allow for a new forensic report to be commissioned, as the Forensic Institute had already given its opinion on the case.", "81. The Court has already identified shortcomings in the Romanian legal system in this respect. In the Eugenia Lazăr case it considered in particular that the very existence in domestic law of provisions authorising the forensic medical institutes to ignore requests by the judicial authorities was not compatible with the State ’ s primary duty to secure the right to life by putting in place an appropriate legal and administrative framework to establish the cause of death of an individual under the responsibility of health-care professionals (see Eugenia Lazăr, cited above, § 80 ).", "82. For the Court, only a detailed and scientifically substantiated report containing reasons for the contradictions between the lower institutes ’ opinions and answers to the questions put by the prosecuting authorities and the applicants would have been capable of inspiring public confidence in the administration of justice and assisting the judicial authorities in discharging their duties.", "83. Moreover, the Court notes that the investigating authorities never elucidated whether P.V.I. (the attending nurse) had diligently carried out her duties during the post-operative monitoring of the child. In this respect the Court points out that according to the forensic reports one of the main hypotheses for the presence of blood in the child ’ s lungs was the deflation of the balloon of the catheter (whose role had been to prevent the ingress of blood into the child ’ s airways) while under the surveillance of either Dr P.A. or P.V.I. After P.V.I. had been heard as a witness immediately following the child ’ s death, she resigned from the hospital and left the country for Italy (see paragraph 37 above). The prosecuting authorities also dismissed the applicants ’ requests to extend the criminal proceedings and to investigate whether she could be held accountable for their son ’ s death (see paragraph 48 above). The Court notes that although her testimony was quite important in determining the cause of the child ’ s death no special measures had been taken by the authorities to identify her domicile in Italy to have her return to testify.", "84. The applicants also complained about the alleged failure to obtain their informed written consent for the procedure. The Court has emphasised that it is important for individuals facing risks to their health to have access to information enabling them to assess those risks. It has held in particular that the Contracting States are bound to adopt the necessary regulatory measures to ensure that doctors consider the foreseeable impact of a planned medical procedure on their patients ’ physical integrity and to inform patients of these consequences beforehand in such a way that the latter are able to give informed consent. As a corollary to this, if a foreseeable risk of this nature materialises without the patient having been duly informed in advance by doctors, and if, as in the instant case, those doctors work in a public hospital, the State Party concerned may be held directly liable under Article 8 for this failure to provide information (see Trocellier v. France (dec.), no 75725/01, § 4, ECHR 2006-XIV; Codarcea, cited above, § 105; and E.M. v. Romania (dec.), no. 20192/07, § 54, 3 June 2014 ).", "85. The Court notes that domestic legislation expressly provided for the patient ’ s right to receive information sufficient to allow that patient to give, with a corollary obligation on the doctor to obtain, informed consent prior to a procedure involving any risk (see paragraphs 5 5-56 above).", "86. In the Court ’ s opinion the informed consent of the parents in the present case was even more relevant given that the doctors involved in the applicants ’ son ’ s surgery could and should have been aware that the child suffered from serious congenital medical conditions which suggested that post-operative complications should have been envisaged. Therefore, these conditions should have imposed a careful examination of all available options.", "87. However, although the disciplinary committees concurred that both the surgeon and the anaesthetist had failed, prior to the procedure, to obtain the applicants ’ informed written consent for the procedure (see paragraphs 16 and 21 above), the domestic courts found no medical negligence in the way the doctors had performed their professional duties.", "88. The Court is not in a position to contradict the domestic courts ’ findings concerning the absence of criminal responsibility in respect of the doctors in the case. Still, it considers that for the assessment of the case it was relevant to examine whether the operation was carried out according to the rules of the medical profession and the safeguards created by the domestic system itself (see Csoma v. Romania, no. 8759/05, § 57, 15 January 2013).", "89. Moreover, the Court observes that the death of the applicants ’ son occurred in November 2005 and that the final decision in the case was taken in May 2012, six years and a half later. However, the file does not suggest that such lengthy proceedings were justified by the circumstances of the case.", "90. The Court reiterates in this respect that a requirement of promptness and reasonable expedition is implicit in the investigation of cases concerning death in a hospital setting. It had already held that the knowledge of facts and possible errors committed in the course of medical care should be established promptly in order to be disseminated to the medical staff of the institution concerned so as to prevent the repetition of similar errors and thereby contribute to the safety of users of all health services (see Byrzykowski, cited above, § 117).", "91. Against this background, the Court recalls that after the death of their son, the applicants did not remain passive and asked that the real cause of death be properly established. They lodged a disciplinary complaint with the College of Doctors and attached a civil claim to a criminal complaint asking that those responsible be identified and held accountable for their son ’ s death (see paragraphs 15 and 22 above).", "92. At the end of those proceedings, the applicants could have obtained, at least in theory, an assessment of, and compensation for, the damage suffered. However, neither of these solutions offered them redress.", "93. Bearing in mind that the prosecuting authorities and the domestic criminal courts excluded medical negligence as a cause of death and dismissed their civil claim to be compensated for the damage suffered without providing additional reasons (see paragraph 47 above), although based on the same medical documents and reports with which the National College of Doctors had imposed disciplinary sanctions on both doctors involved in the intervention ( Dr C.B. and Dr P.A. ), the Court finds it even more difficult to see how the separate civil claim, lodged on 28 October 2008 (see paragraphs 50-52 above), could have been effective in practice in the applicants ’ particular situation.", "94. The Court finally considers that, having pursued criminal investigations - which they had joined as civil parties (see paragraph 22 above) - for more than six years, it would be onerous to expect the applicants to continue the suspended civil proceedings.", "95. In the light of the above considerations, the Court considers that the Government ’ s objection of non-exhaustion of available domestic remedies should be dismissed and that the applicants were not provided with effective legal procedures compatible with the procedural requirements of Article 2 of the Convention.", "96. Therefore, there has been a violation of Article 2 of the Convention under its procedural limb.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "97. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "98. The applicants claimed EUR 195,000 in respect of non ‑ pecuniary damage.", "99. The Government considered the claims excessive.", "100. Having regard to all the circumstances of the present case, the Court accepts that the applicants must have suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicants jointly EUR 12,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "101. The applicants also claimed EUR 5,000 in total for the costs and expenses incurred before the domestic courts and the Court. However, they did not submit any documents to support their claim.", "102. The Government objected to this claim and submitted that the applicants had not proved their claims.", "103. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses.", "C. Default interest", "104. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The applicant was born in 1969 and lives in Vila Nova de Gaia. The applicant ’ s husband, Mr António Rui Calisto Fernandes, was born in 1957. He died on 8 March 1998 following a series of medical problems that occurred after he had undergone minor surgery for the removal of nasal polyps.", "A. The sequence of events leading to the death of the applicant ’ s husband", "1. Treatment in Vila Nova de Gaia Hospital", "11. On 26 November 1997 Mr Fernandes was admitted to the ear, nose and throat (ENT) department of Vila Nova de Gaia Hospital (“the CHVNG”) for a nasal polypectomy. He underwent the operation on 27 November 1997 and was discharged from hospital on 28 November 1997 at 10 a.m.", "12. On 29 November 1997, at 1 a.m., the applicant took her husband to the emergency department of the CHVNG because he was suffering from violent headaches and was in an agitated state. There he was examined by the doctors on duty, in particular by a neurologist. The doctors considered that Mr Fernandes was suffering from psychological problems and prescribed tranquilisers. The applicant claims that they recommended her husband ’ s discharge but that she objected.", "13. In the morning Mr Fernandes was examined by the new medical team on duty. At 10 a.m. he underwent a lumbar puncture which revealed that he had bacterial meningitis. He was transferred to the hospital ’ s intensive care unit.", "14. On 30 November 1997 a scan revealed a cerebral oedema. On 2 December 1997 another scan revealed that the cerebral oedema had diminished.", "15. On 5 December 1997, following an improvement in his clinical condition, Mr Fernandes was transferred to the hospital ’ s general D. ward, where he was under the care of Dr J.V. He was diagnosed with two duodenal ulcers on 10 December 1997.", "16. Mr Fernandes was discharged from hospital on 13 December 1997 as his condition was considered to be stable. A follow-up scan as an outpatient was recommended.", "17. On 18 December 1997 Mr Fernandes, who was suffering from vertigo and headaches, was admitted to the emergency department of the CHVNG. He was examined by Dr J.V., who kept him under observation because he had acute diarrhoea, abdominal pain and severe anaemia. Mr Fernandes received blood transfusions.", "18. On 19 December 1997 an endoscopy was performed on Mr Fernandes, confirming that he had a gastroduodenal ulcer.", "19. On 23 December 1997 Mr Fernandes was discharged from hospital. He was prescribed a special diet and medication. A medical appointment was fixed for 9 February 1998.", "20. The applicant ’ s husband continued to suffer from severe abdominal pain and diarrhoea. On 9 January 1998 he returned to the emergency department of the CHVNG. He was examined by Dr J.V., who did not consider it necessary to admit him. Mr Fernandes therefore returned home the same day.", "21. On 25 January 1998 Mr Fernandes was readmitted to the CHVNG. A colonoscopy revealed infectious ulcerative colitis. Bacteriological tests showed the presence of the Clostridium difficile bacterium. Mr Fernandes was placed on a drip and treated with antibiotics.", "22. At the request of the applicant and her husband, Dr J.V. discharged the latter on 3 February 1998. Dr J.V. prescribed oral treatment and referred Mr Fernandes for further treatment in the hospital ’ s outpatient department.", "2. Treatment in Santo António General Hospital in Oporto", "23. On 17 February 1998 Mr Fernandes was admitted to Santo António General Hospital in Oporto after he was found to be suffering from chronic diarrhoea and microcytic anaemia. He underwent various examinations including a colonoscopy, an endoscopy and blood tests. The medical team considered several possible causes, including an infection with the Clostridium difficile bacterium, but all these possibilities were subsequently ruled out. However, a cytomegalovirus was detected and treatment was given.", "24. On 5 March 1998 Mr Fernandes was examined by a doctor who judged the situation to be under control.", "25. On 6 March 1998 Mr Fernandes ’ s condition deteriorated. He was examined by a doctor who suspected a possible perforated viscus. An X ‑ ray and an abdominal ultrasound were carried out. The latter showed ascites in the abdomen but did not confirm the initial diagnosis. At 5.30 p.m. the applicant ’ s husband was examined by another doctor who detected some resistance to abdominal palpation. A gas analysis showed metabolic alkalosis, but there were no signs of hypocalcaemia. A sigmoidoscopy was performed which showed that the applicant ’ s husband had rectocolitis.", "26. On 7 March 1998 at 1 p.m. the applicant ’ s husband was placed on oxygen because he had difficulty breathing. At 3 p.m. Mr Fernandes was examined by a general physician and subsequently by a surgeon. The latter decided that urgent surgery was needed as there was widespread peritonitis. Mr Fernandes was taken to the operating theatre at 4 p.m. and was brought out again a few minutes later in order to be prepared for surgery, in particular by being given a blood transfusion. He re-entered the operating theatre at 8 p.m. He died the following day at 2.55 a.m.", "27. According to the death certificate issued by Santo António Hospital, the applicant ’ s husband died from septicaemia caused by peritonitis and a perforated viscus.", "B. Proceedings brought by the applicant", "28. On 13 August 1998 the applicant wrote a joint letter to the Ministry of Health, the regional health authority for the North region and the Medical Association, stating that she had received no response from the hospitals to explain the sudden deterioration in her husband ’ s health and his death.", "1. Proceedings before the Inspectorate General for Health", "29. On 30 October and 23 December 1998 the regional health authority for the North region sent the applicant copies of the reports drawn up by the CHVNG and Santo António Hospital on the basis of her husband ’ s medical records.", "30. On 30 May 2000 the applicant requested an update on progress in the proceedings from the regional health authority, stating that she had still received no clear explanations concerning the events preceding her husband ’ s death. In a letter of 5 July 2000 the authority informed her that the file had been sent to the Inspectorate General for Health ( Inspeção ‑ Geral da Saúde – “the IGS”) with a view to the opening of an investigation.", "31. By an order of 20 September 2000 the Inspector General for Health ordered an investigation ( processo de averiguações ).", "32. On 6 November 2001 an inspector was appointed to head the investigation.", "33. On 7 February 2002 the IGS informed the applicant that evidence would be taken from the members of the medical team which had treated her husband and that an expert medical report would be prepared.", "34. The applicant gave evidence on 3 April 2002.", "35. On 23 September 2002 expert medical reports were requested. Reports prepared by experts in the fields of internal medicine, gastroenterology and general surgery were submitted in November 2002. According to the reports, in view of the deterioration in his state of health after the nasal polypectomy, it would not have been possible to save the applicant ’ s husband ’ s life.", "36. The report of the investigation was submitted on 28 November 2002. It found, on the basis of the expert medical reports received, that the treatment administered to the applicant ’ s husband had been appropriate.", "37. In an order of 12 December 2002 the Inspector General for Health declared the investigation closed, finding that there had been no medical negligence and that there were no grounds for instituting disciplinary proceedings against the doctors who had treated the applicant ’ s husband.", "38. In a letter of 17 February 2003 the applicant appealed against the order. She argued that the final report had not answered her questions, complaining about areas of uncertainty and about the duration of the investigation and its findings.", "39. On 28 March 2003 the Inspector General for Health informed the applicant that he had set aside the order of 12 December 2002 and ordered the reopening of the investigation.", "40. On 26 September 2005, in view of the questions raised by the applicant, the medical experts were requested to provide additional information.", "41. A new investigation report was submitted on 23 November 2005, clarifying the facts and taking account of the answers provided by the three medical experts. The report stated that there were no grounds for criticising the health-care personnel who had been involved in the care of the applicant ’ s husband in the CHVNG and Santo António Hospital, as the patient had received proper and appropriate medical assistance in terms of his diagnosis, supervision and treatment. The report further noted that his discharge had been justified on each occasion in view of the improvement in his state of health. The report concluded as follows:", "“The results of the investigation ... following the reopening of the proceedings and the fresh inquiries and medical reports do not indicate that there was any negligent or careless conduct in breach of good medical practice. There is therefore no need to take legal or disciplinary action against any persons involved in the [patient ’ s] care ...”", "42. Taking this report into account, the Inspector General for Health made a fresh order discontinuing the proceedings on 27 December 2005.", "43. In a letter of 1 February 2006 the applicant appealed against that order, complaining of unclear points and omissions. She also raised the possibility that the sudden deterioration in her husband ’ s health and his eventual death might have been caused by bacteria present in the operating theatre on the day of the nasal polypectomy, that the diagnoses may have been made in haste and that there may have been negligence and carelessness in the medical treatment administered to her husband. She further complained that the internal medicine and gastroenterology reports had been prepared each time by the same experts. The applicant therefore requested the reopening of the investigation and the preparation of a fresh expert medical report.", "44. The Inspector General for Health wrote to the applicant on 2 March 2006 informing her that he had set aside his previous order and ordered fresh expert assessments to be carried out by different experts in the fields of internal medicine and gastroenterology.", "45. The applicant gave evidence again on 27 April 2006.", "46. The medical experts submitted their reports on 20 May and 10 July 2006. The expert in gastroenterology stated that it was possible, albeit rare, for a nasal polypectomy to cause meningitis. He further considered that the applicant ’ s husband had received appropriate treatment but that his discharge on 3 February 1998 may not have been wise in view of his clinical condition. The expert concluded that the applicant ’ s husband had suffered a series of complications which were uncommon but could occur, and that he had received proper medical care at the CHVNG. As to the care in Santo António Hospital, the expert considered that the condition of the applicant ’ s husband had been extremely complicated and had given rise to doubts as to the best way to proceed. In his report, the expert in internal medicine rejected the idea of a hospital-acquired infection on the grounds that, had that been the case, the antibiotics administered to the patient would have had no effect. In his view, the meningitis had developed unexpectedly. He further took the view that the applicant ’ s husband ’ s discharge on 3 February 1998 had been appropriate but that he should have continued to be monitored as an outpatient.", "47. On 25 July 2006 a report was drawn up on completion of the investigation, which concluded as follows:", "“...", "The content of the most recent expert medical reports shows ... that there are no grounds for a finding of disciplinary liability for negligence against any of the health ‑ care professionals involved in A. ’ s medical treatment...", "... the decision by the assistant doctor [J.V.] to refer the patient for outpatient treatment was not appropriate and sufficient from a clinical viewpoint in so far as, in order to prevent a recurrence of the colitis caused by Clostridium difficile ..., the patient should have remained in hospital under close medical supervision ...", "...", "Hence, the doctor in question did not act with the necessary care and diligence, thereby incurring disciplinary liability on account of his negligent conduct in the medical assistance provided ... in D. ward of the CHVNG ’ s medical department between 25 January and 3 February 1998.", "The medical opinions make no criticisms of the assistance provided in the gastroenterology department of Santo António General Hospital in Oporto ...”", "48. In the light of this report the Inspector General made an order on 26 July 2006 for the opening of disciplinary proceedings against Dr J.V.", "49. By a letter dated 31 July 2006 the applicant was informed that the disciplinary proceedings initiated against Dr J.V. would be stayed pending the outcome of the criminal proceedings (see paragraphs 59-68 below).", "2. Proceedings before the Medical Association", "50. In the meantime, on 31 August 1998, the Medical Association acknowledged receipt of the applicant ’ s letter of 13 August 1998, informing her that steps would be taken in response to it.", "51. The case was referred to the Medical Association ’ s regional disciplinary council for the North region. The latter obtained the patient ’ s medical records and sought the opinions of four specialist panels: gastroenterology, infectious diseases, general surgery and ear, nose and throat (ENT).", "52. In its report of 14 July 1999, the gastroenterology panel issued the following conclusions:", "“...", "A simple X-ray of the abdomen performed the day before the patient ’ s death did not detect any dilatation or perforation of the colon.", "The patient ’ s death was caused by peritonitis as a result of the perforation of the duodenal ulcer. The difficulties in diagnosing the condition were understandable in view of the patient ’ s serious clinical condition and the fact that his abdominal pains were explained by the inflammatory disease in the colon.", "The role of the corticosteroids in aggravating or reactivating the peptic ulcer ... is not currently considered a risk factor ... However, given that the patient had already experienced one episode of intestinal bleeding, there would have been grounds for weighing up the use of these drugs.", "...", "The decisions to discharge the patient [from hospital] may have delayed the diagnosis or the commencement of treatment. Nevertheless, after examining the documents submitted to me, I am unable to confirm whether these discharge decisions adversely affected his diagnosis or programme of treatment.", "...”", "53. The conclusions of the report of 17 April 2000 by the infectious-diseases panel read as follows:", "“1. In our opinion the diagnosis of meningitis, most likely resulting from the nasal polypectomy, was inexplicably delayed. The fact that there was no one on the medical team trained in this type of diagnosis (for example, a specialist in infectious diseases) may be regarded as the only explanation for such an incident. However, this was not the immediate cause of the patient ’ s death.", "2. In our view, too long a period elapsed between the diagnosis of the perforation in the duodenal ulcer and surgery.", "3. The procedure has been undermined to an incalculable extent by the fact that no autopsy was performed, although an autopsy is mandatory ( mandatória ) in cases of this type in order to shed light on the chain of events.”", "In its report the panel further held as follows:", "“The inhuman conditions described in this process, as regards how the patient was treated, are another example of the situation encountered on a daily basis in our hospitals; a reflection of the appalling structural and operational conditions which require urgent analysis and change.", "This board of the Infectious-Diseases Panel of the Medical Association must have a fundamental role in advocating the rights of patients and doctors in order to create better conditions of care for the former and better working conditions for the latter.", "We reiterate, once more, the need to consider the creation of infectious-diseases departments/units in hospitals of the same type as Vila Nova de Gaia Hospital, in order to improve the quality of care in this regard.”", "54. In a report of 24 April 2001 the general-surgery panel found that there had been no negligence or medical malpractice in the hospitals concerned. The report read as follows:", "“1. A perforated duodenal ulcer requires immediate surgery. In the present situation the perforated ulcer ... was difficult, if not impossible, to diagnose given the clinical context in which it occurred. Furthermore, in view of the seriousness of the patient ’ s clinical condition, the approach to surgery had to be given careful consideration and the patient had to be prepared by means of various measures.", "...”", "55. In a report dated 1 August 2001 the ENT panel concluded as follows:", "“1. Meningitis following micro-endoscopic surgery for nasal polyps is described as one of the (major) complications of this type of surgery, estimated in the literature to occur in between 0.6% and 1% of cases. These figures will be higher in the event of a repeat operation, as in the present case (surgery was performed in 1993 as stated on page 314 of the file concerning the operation).", "2. The post-operative CT scan of the brain carried out on 29 November 1997 does not show any discontinuity in the bones at the base of the skull ... which suggests that no invasive endocranial surgery was carried out.", "3. The description of the surgery performed on the patient on 26 November 1997 (page 310 of the file) does not give any indication of clinical malpractice or negligence.", "4. No ENT procedures were performed during any of the patient ’ s subsequent stays in Vila Nova de Gaia Hospital or in Santo António Hospital.”", "56. In an order of 28 December 2001 the regional disciplinary council for the North region decided, after having examined the conclusions of the different specialist panels, to take no further action on the applicant ’ s complaint, on the ground that there was no evidence of misconduct or medical negligence.", "57. The disciplinary council observed the following:", "( i ) meningitis was a complication that could arise in between 0.6% and 1% of cases following a nasal polypectomy; the figures were liable to be higher for a repeat operation, as in the case in question;", "(ii) the applicant ’ s husband had received appropriate treatment during his various hospital stays;", "(iii) the patient ’ s bacterial meningitis ( Pseudomonas ) had been treated properly;", "(iv) although the infectious-diseases panel had suggested that the presence of a specialist in that discipline might have enabled a diagnosis to be made sooner, this had not been a decisive factor in the development of the clinical situation;", "(v) the perforation of the duodenal ulcer had been the cause of the peritonitis. This had been difficult to diagnose in view of the patient ’ s serious clinical condition, a fact acknowledged by the gastroenterology and general-surgery panels;", "(vi) although the infectious-diseases panel had considered that too long a period had elapsed between the diagnosis of the perforated duodenal ulcer and surgery, the time taken to prepare for the operation had been justified since the patient had been suffering from intestinal disease and had severe anaemia, sepsis and a fluid and electrolyte imbalance, as noted by the general-surgery panel.", "58. On 29 April 2002 the applicant lodged an appeal against that order with the Medical Association ’ s National Disciplinary Council. On 18 March 2003 the appeal was declared inadmissible as being out of time.", "3. Criminal proceedings before the Vila Nova de Gaia District Court", "59. On 29 April 2002 the applicant lodged a complaint for negligent homicide with the Oporto criminal investigation and prosecution department.", "60. She gave evidence on 7 June 2002.", "61. By order of the Criminal Investigation Court of 27 September 2002 the applicant was given leave to intervene in the proceedings as an assistant to the public prosecutor ( assistente ).", "62. On 7 December 2007 the public prosecutor ’ s office made its submissions, charging Dr J.V. with homicide by gross ( grosseira ) negligence. In support of their decision the prosecuting authorities referred to the report appended to the IGS order of 25 July 2006. They considered that Dr J.V. should not have discharged the applicant ’ s husband on 3 February 1998 in so far as the patient ’ s clinical condition had been problematic and he had been infected with the Clostridium difficile bacterium.", "63. The case was referred to the Vila Nova de Gaia District Court. During the trial the court heard evidence from the applicant, the accused, eight doctors who had been involved in treating the applicant ’ s husband in the CHVNG and in Santo António Hospital, and the five medical experts appointed in the context of the proceedings before the IGS. The court also sought the opinion of the Medical Association ’ s Disciplinary Council.", "64. On 15 January 2009 the District Court acquitted Dr J.V. of the charges against him. In particular, it took the view that the findings made by the IGS in its order of 26 July 2006 could not be taken into consideration as they had not been confirmed by the five medical experts who had given evidence during the trial.", "65. As to the facts, the District Court considered, inter alia, the following to be established :", "“The patient ’ s hospitalisation on 18 December 1997 ... was not the result of a lack of medical supervision of his clinical condition ... since it was unconnected to the complications arising out of the meningitis. In fact, it resulted from acute anaemia caused by intestinal bleeding from a duodenal ulcer; ...", "The decisions to discharge the patient on 13 and 23 December 1997 were appropriate, given that, in the former case, the problem of bacterial meningitis had been resolved, [the patient] had completed the course of antibiotics, he no longer had any symptoms or fever, had a slightly increased white-blood cell count, a falling neutrophil count and normal sedimentation rate, and was not complaining ... and, in the latter case, that is to say, the patient ’ s hospitalisation from 18 to 23 December 1997, the patient was not complaining of abdominal pain, diarrhoea or bleeding ... with the result that it was possible to continue treating his ulcer with a dietary regime while monitoring him on an outpatient basis ...", "When the patient was admitted to Santo António Hospital, laboratory tests were carried out for Clostridium difficile. The results were negative on two occasions.”", "66. On the subject of the surgery preceding the death of the applicant ’ s husband, the District Court observed as follows:", "“... the patient was in a very serious clinical state, with septic shock and multiple organ dysfunction. For that reason, he was placed on artificial ventilation and vasoactive drugs and fluids were administered ..., together with hydrocortisone to deal with possible acute adrenal insufficiency ( falência supra-renal aguda ), and broad-spectrum antibiotics;", "... in this medical context the patient ’ s prospects of survival were very uncertain, in view of the septic shock and multiple organ dysfunction;", "... a simple abdominal X-ray and an abdominal and pelvic ultrasound scan were therefore requested, which did not reveal a perforation of the intestine.”", "67. In the District Court ’ s view, it had not been demonstrated that the care provided to the applicant ’ s husband during his stay in hospital from 25 January to 3 February 1998 had not been in accordance with good medical practice, or that he should have been kept in hospital for longer. The court therefore concluded that there was no causal link between the treatment administered by Dr J.V. to the applicant ’ s husband in the CHVNG and his death, which had been caused by a perforated viscus that was unconnected to the colonic disease treated by the accused. It held:", "“...there was no evidence to show that the treatment administered by the accused for the Clostridium difficile infection was incomplete, that the patient was discharged prematurely on 3 February 1998 or, in sum, that the accused was responsible for the death of the patient on 8 March 1998.”", "68. The applicant did not appeal against that judgment.", "4. Proceedings before the Oporto Administrative and Fiscal Court", "69. On 6 March 2003 the applicant brought an action in the Oporto Administrative and Fiscal Court against the CHVNG, Santo António Hospital and the eight doctors who had been involved in treating her husband while he was in hospital, claiming compensation for the damage she had suffered on account of her husband ’ s death. She alleged, inter alia,", "( i ) that her husband ’ s meningitis had been caused by Pseudomonas cepacia bacteria which, she alleged, had been present in the operating theatre during the nasal polypectomy;", "(ii) that the meningitis had been diagnosed too late, allowing the illness to become serious;", "(iii) that the administering of excessive doses of medication and the lack of a suitable prophylactic had caused the duodenal ulcer which had led to her husband ’ s death.", "70. In the context of these proceedings the applicant was granted legal aid in the form of exemption from payment of the court fees and the fees of a lawyer of her own choosing.", "71. Between 4 and 24 April 2003 the eight doctors contested their standing to be sued ( ilegitimidade passiva ), relying on Article 2 of Legislative Decree no. 48051 of 21 November 1967.", "72. On 16 April 2007 the court gave a preparatory decision ( despacho saneador ) specifying which facts were considered to be established and which remained to be established. In accordance with Article 2 of Legislative Decree no. 48051 of 21 November 1967 it further held that the doctors among the defendants did not have standing in so far as they had been sued only for negligent conduct. Accordingly, it declared the claim admissible only in respect of the hospitals.", "73. On 17 January 2011 the applicant gave evidence.", "74. During the three hearings the court heard evidence from the following witnesses:", "( i ) eleven doctors who had been involved in treating the applicant ’ s husband during his various stays in the CHVNG and Santo António Hospital;", "(ii) the general practitioner of the applicant ’ s husband;", "(iii) two doctors who were friends of the family;", "(iv) the inspector who had written the final report on completion of the investigation within the IGS; and", "(v) the medical experts in gastroenterology and internal medicine whose reports had formed the basis for the last IGS decision.", "75. On 24 May 2011 the court made an order concerning the facts. Taking into account the medical records of the applicant ’ s husband and the various statements made by the witnesses who had given evidence, the court considered it established, inter alia,", "( i ) that a polypectomy was a straightforward surgical operation which posed minimal risk and that the patient had been informed accordingly;", "(ii) that the operating theatre had been aseptic and sterilised at the time of the polypectomy;", "(iii) that the origin of the bacterium linked to the patient ’ s meningitis had not been proven. The court dismissed the possibility of a hospital-acquired infection, pointing out that in that case the prescribed treatment would have had no effect;", "(iv) that the medication prescribed in the CHVNG and Santo António Hospital could cause intestinal problems and hence could give rise to colitis;", "(v) that the applicant ’ s husband had been treated with drugs to protect his stomach in the CHVNG;", "(vi) that the gastroduodenal perforation had not been detected until the operation was being performed; and", "(vii) that the applicant ’ s husband had died from septicaemia caused by peritonitis resulting from a perforated viscus.", "76. On 23 January 2012 the Oporto Administrative and Fiscal Court delivered a judgment in which it dismissed the applicant ’ s claims. On the facts, the judgment stated, inter alia, as follows:", "“The Pseudomonas bacterium was resistant to the various antibiotics that were tried ...", "When the patient attended Vila Nova de Gaia Hospital on 18 December 1997 he had completely recovered from his bacterial meningitis.", "...", "On 25 January 1998 the patient again attended Vila Nova de Gaia Hospital, where he was diagnosed with pseudomembranous colitis caused by Clostridium difficile ... The colitis was successfully treated in that hospital ...;", "Throughout his stay in Vila Nova de Gaia Hospital he was given treatment to protect his stomach.", "...", "When he was admitted (to Santo António Hospital on 17 February 1998) he had chronic diarrhoea ... and was diagnosed with suspected inflammatory bowel disease. Medication was prescribed in keeping with that diagnosis.", "...", "While in Santo António Hospital he was kept under observation, received daily medication and underwent various tests.", "...", "On 6 March 1998 ... nothing had made it possible to predict the gastroduodenal perforation ... the tests carried out that day ... did not confirm the existence of any duodenal perforation such that the situation had to be kept under review;", "...", "It was not until 7 March 1998 that the patient ’ s acute abdominal syndrome was diagnosed, calling for urgent surgery ... it was only during the operation that the patient was found to be suffering from a duodenal perforation;", "...", "The perforation had occurred 24 hours before surgery.”", "77. The judgment concluded as follows:", "“ ... in view of the facts that have been established, it is not possible to determine at what point the defendants, by their actions or omissions, breached the rules of good medical practice ...", "It is considered established that [Mr Fernandes ’ s ] death was caused by sepsis due to peritonitis resulting from the perforation of his duodenal ulcer...", "No doubts persisted regarding the diagnosis of meningitis, the procedure adopted, the sequence of treatment and the resolution of the problem, as all the various after ‑ effects were duly explained.", "Hence there were no differences of opinion regarding the need to prescribe and use antibiotics in the context of [Mr Fernandes ’ s ] meningitis and other conditions, although it was explained that colitis is a bacterial imbalance caused by antibiotics (the very ones which have undesirable effects on intestinal flora).", "Nevertheless, it was not possible to determine the agent or identify the cause of the bacterium linked to the meningitis and it could therefore not be established with certainty whether the sinus surgery was the source of the problem or was simply one factor causing the infection. The other factors and circumstances preceding the operation ... thus cease to be relevant.", "It is nonetheless surprising that the death of the claimant ’ s husband should have occurred ... given that he had been strong and in good health and that the microsurgery on his sinuses was a straightforward operation. However, it has not been demonstrated that the therapy or medication administered to [Mr Fernandes ] at any point was unsuited to his clinical condition. There was therefore no breach of the rules of good medical practice (either by action or omission). Accordingly, one of the cumulative conditions for establishing civil liability, namely an unlawful act, is absent.”", "78. The applicant appealed against the judgment to the Supreme Administrative Court. She contested the facts deemed to be established, arguing that only by studying the circumstances before, during and after the operation would it be possible to understand what type of bacterium her husband had contracted. She further reiterated that her husband had contracted a hospital-acquired infection and had not received adequate treatment either in the CHVNG or in Santo António Hospital.", "79. On 26 February 2013 the Supreme Administrative Court dismissed the applicant ’ s claims, upholding the judgment of the Oporto Administrative and Fiscal Court. It first of all declined to review the facts considered by the lower court to have been established, on the grounds that the hearings had not been recorded and that no new documents had been submitted which could cast doubt on the evidence forming the basis for the court ’ s decision. The Supreme Administrative Court summed up its judgment as follows:", "“The lower court considered, in sum, that it had not been possible to identify the nature and origin of the bacterium that caused the meningitis and that it had not been demonstrated that the illnesses subsequent to [the patient ’ s] treatment and recovery from that illness ... had been the consequence of incorrect diagnosis or treatment.", "For that reason it found that no breach of the rules of good medical practice had been demonstrated that might have caused the patient ’ s death.", "The claimant takes a different view of the matter. However, she bases her arguments mainly on allegations that have not been proven, and in particular the allegation that the meningitis was caused by the Pseudomonas bacterium, allegedly acquired in hospital ... and that the patient did not receive appropriate prophylactic treatment to protect his stomach during his treatment with antibiotics.", "Accordingly, these claims can be summed up as allegations of medical negligence which are unsupported by the established facts.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Criminal law", "80. The relevant provisions of the Criminal Code read as follows:", "Article 137", "“1. Anyone who kills another person through negligence shall be punishable by imprisonment for a period of up to three years or to a fine.", "2. Gross negligence shall be punishable by imprisonment for up to five years.”", "Article 150", "“...", "2. Where the persons referred to in the previous paragraph, in pursuit of the aims indicated therein, perform surgery or provide treatment in a manner which breaches the rules of good medical practice and thereby endangers a patient ’ s life or health or creates a risk of serious bodily harm, their conduct shall be punishable by a period of imprisonment up to two years or by up to 24 day-fines, unless a heavier penalty has been imposed under another provision of the law.”", "81. The head of the relevant health-care establishment has a duty to inform the competent judicial authority of any suspicious death of a hospital patient, by forwarding the medical records so as to enable an investigation to be carried out to establish the circumstances of death (Article 51 of Legislative Decree no. 11/98 of 24 January 1998 on forensic medical matters). An autopsy is performed in cases of violent or unexplained deaths, except where the clinical data and other elements are sufficiently convincing to preclude any suspicion of a crime; in that case, no autopsy needs to be carried out (Article 54).", "B. Civil and Administrative law", "82. The relevant provision of the Civil Code reads as follows:", "Article 487", "“1. It is for the injured party to prove liability for damage through negligence ( culpa ), unless there is a legal presumption of it.", "2. In the absence of any other legal criteria, negligence is assessed with reference to the diligence of the bonus pater familias, in view of the circumstances of the case.”", "83. At the material time the State ’ s non-contractual liability was governed by Legislative Decree no. 48051 of 21 November 1967, Article 2 of which read as follows:", "“1. The State and other public-law entities shall be liable in civil law vis-à-vis third parties for any acts infringing those parties ’ rights or the legal provisions designed to protect their interests, as the result of unlawful acts committed negligently by State or public agencies or officials in the performance of their duties or as a consequence thereof.", "2. Where they have paid compensation under the terms of the preceding paragraph, the State and other public-law entities shall be entitled to claim reimbursement ( direito de regresso ) from those in charge of the agencies or the officials responsible, if these have not performed their duties with the requisite care and diligence.”", "84. Article 6 of the aforementioned Legislative Decree reads:", "“ For the purposes of the present Legislative Decree, legal acts which infringe the relevant legal and regulatory norms or general principles shall be deemed unlawful, as shall material acts which infringe the said norms or principles or the technical rules or principles of due caution which must be taken into account.”", "C. Relevant disciplinary provisions", "85. Article 2 of the Disciplinary Regulations for Doctors defines a disciplinary offence as follows:", "“A doctor who, by action or omission, fails, either intentionally or by negligence, to comply with one or more of the duties arising out of the Medical Association Statute, the Code of Ethics, the present Code, internal regulations, or any other applicable provision, shall be considered to have committed a disciplinary offence.”", "86. The Disciplinary Regulations governing public officials and employees, in force at the material time, were contained in Legislative Decree no. 24/84 of 16 January 1984. Article 3 § 1 characterised a disciplinary offence as follows:", "“A disciplinary offence consists in the failure, not exceeding the status of a fault, by a public official or employee to comply with one of the general or specific obligations attaching to his or her functions.”", "87. The duty of diligence was defined in Article 3 § 6 as follows:", "“The duty of diligence consists in being familiar with the relevant regulations and with the instructions from one ’ s hierarchical superiors, while possessing and perfecting the technical skills and working methods required to perform one ’ s duties correctly and efficiently.”", "D. Regulatory framework in the field of health care", "88. Article 64 of the Portuguese Constitution guarantees the right to health and to a national universal health-care service focused on providing free health care while taking account of citizens ’ economic and social circumstances.", "89. The Health Act, which was approved by virtue of Law no. 48/90 of 24 August 1990, establishes the principle whereby health care is dispensed by State services and establishments and by other public or private, profit ‑ making or non-profit entities under State supervision (section I, paragraph 4).", "90. Under Basic Principle XIV of the Act, the users of the health-care system have, among other rights, the right freely to choose their doctor and health-care establishment, the right to receive or refuse the treatment offered, the right to be treated in an appropriate and humane manner, promptly and with respect, the right to be informed of their situation, of possible alternative treatments and of the likely development of their condition, and the right to complain of the manner in which they have been treated and to receive compensation for any damage suffered.", "91. The rules applying the framework Health Act are laid down by Legislative Decree no. 11/93 of 15 January 1993, which approved the National Health-care System Regulations ( Estatuto do sistema nacional de saúde ). Under Article 38, the State has the task of supervising health-care establishments; the Ministry of Health is responsible for setting health-care standards, without prejudice to the functions assigned to the Medical Association and the Pharmacists ’ Association.", "92. The Hospital Management Act, established by Legislative Decree no. 19/88 of 21 January 1988 and in force until 2002, stated in its preamble as follows:", "“All citizens have the right to expect hospitals (institutions whose social purpose must never be forgotten) to provide treatment of a standard that can reasonably be expected having regard to the respect due to citizens and the human and material resources available. Assessment of the services provided in hospitals, in terms of cost ‑ effectiveness but also and perhaps above all in terms of quality assurance, is an increasingly complex and essential task, one to which the authorities must give full attention and which must be addressed within the management of hospitals.”", "93. Article 3 § 2 of the aforementioned Legislative Decree provided, in particular, for the Minister of Health to:", "“... define standards and criteria for service provision in hospitals, establish guidelines to be followed by service provision plans and programmes, monitor their implementation and evaluate the results obtained and the quality of the health care provided to the population, and request any information and documentation needed for this purpose.”", "94. The principles governing service provision, set out in Article 6 of that Legislative Decree, included: respect for patients ’ rights; promptness and quality of the assistance provided within the limits of the available resources; lawful and efficient use of those resources; deployment of best endeavours to provide the services, as far as possible, with the necessary organisational structures, personnel and equipment; and observance of professional ethics by all those working in hospitals.", "95. Article 27 of Legislative Decree no. 73/90 of 6 March 1990 on Medical Careers lays down the duties of hospital doctors. It reads, inter alia, as follows:", "“( a ) Reception of patients, duly registered in the outpatient records, with recourse to hospitalisation where necessary, and provision of appropriate information to the patient ’ s general practitioner in the form of a confidential written report.", "(b) Diagnosis and treatment of patients, supported by an effective professional relationship with the patient ’ s general practitioner and with the other doctors involved in his or her treatment outside the hospital.", "(c) Reception in hospital emergency departments.", "...”", "96. Article 7 of Legislative Decree no. 373/79 of 8 September 1979 on the status of medical practitioners laid down the duties of health professionals, including ensuring continuous professional development and contributing to the establishment and preservation of sound technical and human working conditions, with a view to providing an effective service and enhancing the prestige of the health-care service to which they belonged.", "97. Relevant legislation concerning the health sector also includes the General Regulations on Hospitals, approved by Order no. 48358 of 27 April 1968, which lay down the forms of organisation and operation applicable to all hospitals, without prejudice to the fact that each establishment has its own local regulations.", "98. At the relevant time, under Legislative Decree no. 291/93 of 24 August 1993, the Inspectorate General for Health was a department within the Ministry of Health with technical and administrative autonomy (Article 1) which was responsible, among other tasks, for supervising the activities and operation of health-care establishments (Article 3 § 1 (a)), and instituting disciplinary proceedings (Article 3 § 2 (b)). The IGS was headed by an Inspector General whose tasks included ordering the opening of investigative proceedings and issuing a decision when they had been completed (Article 5 (h)). Under the terms of Legislative Decree no. 275/2007 of 30 June 2007, the Inspectorate General for Health became the Inspectorate General for Health-Care Activities (IGAS). The IGAS has wider-ranging powers which extend to private bodies.", "99. The Medical Association was governed at the material time by the Medical Association Statute, adopted by Legislative Decree no. 282/77 of 5 July 1977 as amended by Legislative Decree no. 217/94 of 20 August 1994. It is an independent body which is responsible for maintaining standards among members of the medical profession and ensuring observance of the Medical Code of Ethics. To be able to exercise their profession doctors must be registered with the Medical Association; in this context, emphasis is placed upon the need for them to observe the professional standards governing their profession.", "100. The Medical Association also has disciplinary powers, although these do not preclude other disciplinary procedures provided for by law (Article 3 of the Disciplinary Regulations for Doctors, approved by Legislative Decree no. 217/94 of 20 August 1994). The regional disciplinary councils are responsible for instituting disciplinary proceedings against doctors in their region (Article 4). The decisions of the regional disciplinary councils are open to appeal before the National Disciplinary Council ( Conselho Nacional de Disciplina ) within an eight-day period (Articles 44 and 45).", "101. The specialist panels ( Colégios de especialidades ) are bodies within the Medical Association composed of specialists in different branches of medicine (Article 87 of the Medical Association Statute). They are tasked, among other duties, with giving opinions to the Association ’ s National Executive Council.", "102. The Code of Ethics contains the rules of an ethical nature which doctors must observe and from which they must draw inspiration in the course of their professional practice. According to the principle of independence of doctors, the latter, in the exercise of their profession, are “technically and ethically independent and accountable for their acts; they may not, in performing their clinical duties, receive technical or ethical directions from persons outside the medical profession”, a provision which “does not conflict with the existence of institutional technical hierarchies established by law or by contract; a doctor may in no circumstances be forced to perform acts against his or her will.”", "103. In Portugal an Infectious-Diseases Control Plan (1988-98) was under way in late 1997. In the framework of this plan, a publication entitled Livro da mão cor -de- rosa (Book of the pink hand), containing a set of recommendations for the prevention and control of nosocomial infections acquired in health-care establishments, was issued in 1996.", "104. In the introduction to the 1996 report reference was made to the following information:", "“In 1988 the Infectious-Diseases Control Plan was initiated .... It was aimed at developing the methods to be used in the study of infections .... The first study concerning the prevalence of infection was carried out in 1988 with 10,177 patients from 71 hospitals; this was followed by a second study in 1993, with 9,331 patients from 65 hospitals. Other studies were also carried out with regard to the incidence of urinary-tract infections in patients with catheters, surgical infections, and nosocomial pneumonia in intensive care, for example. These studies show that, at any given time, approximately 30 % of hospital inpatients have an infection and one-third of them acquired the infection while in hospital.”", "105. The report ’ s recommendations required each health-care establishment to define a comprehensive infectious-diseases control programme, which was to be coordinated and implemented by one of the interdisciplinary infectious-diseases control commissions created that same year under an instruction issued by the Directorate General for Health.", "106. The infectious-diseases control commissions were established under an instruction issued by the Directorate General for Health on 23 October 1996. According to Article 4 of this instruction these commissions were required, among other tasks, to “define, implement and monitor a system of epidemiological surveillance addressing structures, processes and outcomes with regard to situations posing the gravest threats, propose recommendations and standards for the prevention and control of infectious diseases and the corresponding monitoring arrangements, carry out epidemiological inquiries and disseminate the information within the establishment, and contribute to training within the service and to other training actions undertaken by the establishment in the field of infection control.”", "107. A working group dedicated to the issue of hospital-acquired infections was established in Vila Nova de Gaia Hospital in 1994. It published, from at least 1996 onwards, an information booklet on these issues and the procedures to be adopted.", "108. In the meantime, the Council of Europe recommendations concerning the control of infectious diseases, and in particular Recommendation no. R (84) 20 (see paragraph 116 below), were circulated to public and private hospitals.", "109. The aforementioned Plan (see paragraph 103 above) was replaced by the National Infectious-Diseases Control Programme adopted on 14 May 1999.", "III. INTERNATIONAL LAW AND PRACTICE", "A. United Nations", "1. The International Covenant on Economic, Social and Cultural Rights", "110. Article 12 of the International Covenant on Economic, Social and Cultural Rights provides:", "“1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.", "2. The steps to be taken by the State Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:", "(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;", "(b) The improvement of all aspects of environmental and industrial hygiene;", "(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;", "(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.”", "111. In its General Comment No. 14 on the right to the highest attainable standard of health, the Committee on Economic, Social and Cultural Rights (CESCR) held as follows:", "“9. ... the right to health must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health.”", "In this connection the CESCR required that the necessary public-health and health-care facilities should satisfy the following criteria: availability, accessibility, acceptability and quality.", "The CESCR stressed that the obligations to protect included, inter alia, the duties of States to adopt legislation or to take other measures ensuring equal access to health care and health-related services provided by third parties, as well as to ensure that medical practitioners and other health professionals met appropriate standards of education, skill and ethical codes of conduct (paragraph 35).", "It also required that any person or group that was the victim of a violation of the right to health should have access to effective judicial or other appropriate remedies at both national and international levels (paragraph 59).", "2. The documents of the World Health Organisation (WHO)", "112. The relevant parts of the World Health Organisation ’ s Declaration on the Promotion of Patients ’ Rights in Europe (1994) read as follows:", "“5.1 Everyone has the right to receive such health care as is appropriate to his or her health needs, including preventive care and activities aimed at health promotion. Services should be continuously available and accessible to all equitably, without discrimination and according to the financial, human and material resources which can be made available in a given society.", "...", "6.5 ... Where patients feel that their rights have not been respected they should be enabled to lodge a complaint ... Patients have the right to have their complaints examined and dealt with in a thorough, just, effective and prompt way and to be informed about their outcome.”", "113. The WHO has also adopted a number of technical medical guidelines relating to safe health care and surgical facilities, such as the WHO guidelines for safe surgery (2009), which provide checklists and set out ten objectives and recommendations, including the use of methods known to minimise the risk of surgical site infection and the establishment, by hospitals and public health systems, of routine surgical surveillance.", "B. Council of Europe", "1. The European Social Charter", "114. Article 11 of the European Social Charter, 1961, entitled “The right to protection of health”, reads as follows:", "“With a view to ensuring the effective exercise of the right to protection of health, the Contracting Parties undertake, either directly or in co-operation with public or private organisations, to take appropriate measures designed inter alia :", "1. to remove as far as possible the causes of ill-health;", "2. to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health;", "3. to prevent as far as possible epidemic, endemic and other diseases.”", "2. The Oviedo Convention on Human Rights and Biomedicine", "115. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (known as the Oviedo Convention on Human Rights and Biomedicine), which was adopted in 1997 and entered into force on 1 December 1999, has been ratified by twenty-nine of the Council of Europe member States. Its relevant provisions read as follows:", "Article 3 – Equitable access to health care", "“Parties, taking into account health needs and available resources, shall take appropriate measures with a view to providing, within their jurisdiction, equitable access to health care of appropriate quality.”", "Article 4 – Professional standards", "“Any intervention in the health field, including research, must be carried out in accordance with relevant professional obligations and standards.”", "Article 24 – Compensation for undue damage", "“The person who has suffered undue damage resulting from an intervention is entitled to a fair compensation according to the conditions and procedures prescribed by law.”", "Article 25 – Sanctions", "“Parties shall provide for appropriate sanctions to be applied in the event of infringement of the provisions contained in this Convention.”", "3. Recommendation Rec( 84)20 on the prevention of hospital infections", "116. The Committee of Ministers, in its Recommendation Rec(84)20 on the prevention of hospital infections, recommended to the Governments of member States that they promote the application of the strategy for the prevention of hospital infections described in detail in the Appendix to the Recommendation.", "C. The Inter-American Court of Human Rights", "117. The relevant provisions of the American Convention on Human Rights read as follows:", "Article 4", "“1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.", "...”", "Article 5", "“1. Every person has the right to have his physical, mental, and moral integrity respected.", "...”", "118. In the case of Suárez Peralta v. Ecuador (Preliminary objections, merits, reparations and costs, Judgment of 21 May 2013, Series C No. 261), which concerned allegations of medical negligence, the Inter-American Court of Human Rights reiterated the obligation of the State to guarantee the right to personal integrity in the context of health, as follows:", "“ 132. ... States must establish an adequate normative framework that regulates the provision of health care services, establishing quality standards for public and private institutions that allow any risk of the violation of personal integrity during the provision of these services to be avoided. In addition, the State must create official supervision and control mechanisms for health care facilities, as well as procedures for the administrative and judicial protection of victims, the effectiveness of which will evidently depend on the way these are implemented by the competent administration.”", "IV. EUROPEAN UNION LAW", "A. Charter of Fundamental Rights of the European Union", "119. The relevant provisions of the Charter of Fundamental Rights of the European Union read as follows:", "Article 2 – Right to life", "“1. Everyone has the right to life.”", "Article 35 –Healthcare", "“Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.”", "B. Council Recommendation on patient safety, including the prevention and control of healthcare associated infections", "120. On 9 June 2009 Council Recommendation on patient safety, including the prevention and control of healthcare associated infections (2009/C 151/01) was adopted. In particular, the text recommends that Member States:", "“I. 1. ...", "(d) [ regularly review and update] safety standards and/or best practices applicable to healthcare provided on their territory;", "...", "(f) [ include] a specific approach to promote safe practices to prevent the most commonly occurring adverse events such as medication-related events, healthcare associated infections and complications during or after surgical intervention.”", "8.", "...", "(a) implement prevention and control measures at national or regional level to support the containment of healthcare associated infections and in particular:", "...", "(iii) to make guidelines and recommendations available at national level.”", "121. The text also recommends informing patients about:", "“I. 2. (b) ( iii ) complaints procedures and available remedies and redress and the terms and conditions applicable;”", "V. COMPARATIVE LAW", "122. It transpires from the materials available to the Court on the legislation of member States of the Council of Europe that all of the thirty ‑ one member States surveyed offer a civil remedy with the possibility to claim compensation for medical negligence in either the civil or the administrative courts. In the majority of countries, liability can be both contractual and extra-contractual (for instance, in Austria, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Estonia, Georgia, Germany, Italy, Luxembourg, Monaco, Poland, Spain and Switzerland). Tort liability is the exclusive or main form of liability in Lithuania, Malta, Moldova, Serbia, Russia, Ukraine and the United Kingdom.", "123. It is also a common feature of all countries that medical negligence can amount to a criminal offence, either as manslaughter or as unintentional bodily injury or another offence against health (such as failure to provide assistance). In several countries, medical negligence constitutes a distinct offence (for instance, in Armenia, Bosnia and Herzegovina, Croatia, Slovenia, the former Yugoslav Republic of Macedonia and Ukraine).", "124. The great majority of the countries surveyed have professional bodies (that is, medical councils, chambers, associations) with the power to impose disciplinary sanctions. In the absence of such bodies sanctions may be imposed by the head of the health establishment concerned or the Ministry of Health (for example, in Armenia and Russia). In certain countries, even if disciplinary proceedings exist, they appear to play no role in medical negligence cases, or only a very limited one (for example, Azerbaijan and Estonia).", "125. Administrative complaints to various State supervisory bodies (such as the Ministry of Health, the Health Inspectorate, the Health Board, and so on) are possible in some countries including Bulgaria, Croatia, Estonia and Hungary. In Azerbaijan, Russia, Spain and Ukraine a breach of the rules and regulations relating to health care constitutes an administrative offence.", "126. Finally, apart from contentious proceedings, several countries provide for a system of settlement, mediation or no-fault compensation schemes (for example, Austria, Belgium, France, Germany, Poland and the United Kingdom).", "THE LAW", "I. PRELIMINARY ISSUES", "A. Compliance with the six-month rule", "127. The Court reiterates that the Grand Chamber is not precluded from examining, where appropriate, questions concerning the admissibility of an application under Article 35 § 4 of the Convention, as that provision enables the Court to dismiss applications it considers inadmissible “at any stage of the proceedings”. Therefore, even at the merits stage and subject to Rule 55, the Court may reconsider a decision to declare an application admissible where it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see, for example, Muršić v. Croatia [GC], no. 7334/13, § 69, ECHR 2016).", "128. Although the respondent State did not raise any objection before the Grand Chamber based on the six-month time limit as it had done previously before the Chamber, this issue, as a public policy rule, calls for consideration by the Court of its own motion (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012).", "129. The Court reiterates that the object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (ibid., §§ 39 and 40).", "130. In this regard the Court emphasises that the requirements contained in Article 35 § 1 concerning the exhaustion of domestic remedies and the six-month period are closely interrelated (see Jeronovičs v. Latvia [GC], no. 44898/10, § 75, ECHR 2016), since they are not only combined in the same Article, but also expressed in a single sentence whose grammatical construction implies such a correlation (see Gregačević v. Croatia, no. 58331/09, § 35, 10 July 2012, and the references cited therein).", "131. Thus, as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies (see Blokhin v. Russia [GC], no. 47152/06, § 106, ECHR 2016). Article 35 § 1 cannot therefore be interpreted in a manner which would require an applicant to inform the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level, otherwise the principle of subsidiarity would be breached (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 260, ECHR 2014 (extracts)).", "132. However, this provision allows only remedies which are normal and effective to be taken into account as an applicant cannot extend the strict time-limit imposed under the Convention by seeking to make inappropriate or misconceived applications to bodies or institutions which have no power or competence to offer effective redress for the complaint in issue under the Convention (see, for example, Fernie v. the United Kingdom ( dec. ), no. 14881/04, 5 January 2006; Beiere v. Latvia, no. 30954/05, § 3 8, 29 November 2011; and, a contrario, Hizb ut-tahrir and Others v. Germany ( dec. ), no. 31098/08, §§ 58-59, 12 June 2012, and Petrović v. Serbia, no. 40485/08, § 60, 15 July 2014).", "133. The Court observes that in the Chamber judgment the Government ’ s objection as regards the six-month time limit was dismissed because the application had been lodged on 2 3 August 2013, that is, within six months following the final domestic decision, namely the Supreme Administrative Court judgment delivered on 26 February 2013 following the proceedings for civil liability.", "134. At the outset, the Court stresses that determining whether a domestic procedure constitutes an effective remedy within the meaning of Article 35 § 1, which an applicant must exhaust and which should therefore be taken into account for the purposes of the six-month time-limit, depends on a number of factors, notably the applicant ’ s complaint, the scope of the obligations of the State under that particular Convention provision, the available remedies in the respondent State and the specific circumstances of the case.", "135. For example, the Court has held that, in the area of unlawful use of force by State agents – and not mere fault, omission or negligence – civil or administrative proceedings aimed solely at awarding damages, rather than ensuring the identification and punishment of those responsible, were not adequate and effective remedies capable of providing redress for complaints based on the substantive aspect of Articles 2 and 3 of the Convention (see Jeronovičs, § 76, and Mocanu and Others, § 227, both cited above). It has further held that the Contracting Parties ’ obligation under Articles 2 and 3 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of assault could be rendered illusory if, in respect of complaints under those Articles, an applicant were required to bring an action leading only to an award of damages (see Jeronovičs, cited above, § 77 ).", "136. In cases such as these, therefore, the Court considered that any subsequent civil proceedings undertaken by the applicant were not an adequate and effective remedy within the meaning of Article 35 § 1 which the applicants had to exhaust and which should therefore be taken into account for the purposes of the six-month time-limit. Accordingly, the Court dismissed those cases as having been lodged out of time (see, among others, Jørgensen and Others v. Denmark ( dec. ), no. 30173/12, § 63, 28 June 2016; Narin v. Turkey, no. 18907/02, § 49, 15 December 2009; and Bedir v. Turkey ( dec. ), no. 25070/02, 2 October 2007).", "137. By contrast, in medical negligence cases the Court has considered that the procedural obligation imposed by Article 2, which concerns the requirement to set up an effective judicial system, will be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any responsibility of the doctors concerned to be established and any appropriate civil redress to be obtained. It has also accepted that disciplinary measures may also be envisaged (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 ‑ I, and Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 ‑ VIII). In such cases, therefore, the Court, having regard to the particular features of a respondent State ’ s legal system, has required the applicants to exhaust the legal avenues whereby they could have their complaints duly considered. This is because of the rebuttable presumption that any of those procedures, notably civil redress, are in principle apt to satisfy the State ’ s obligation under Article 2 of the Convention to provide an effective judicial system.", "138. In the present case, the applicant used all the avenues of redress that were available to her in the Portuguese legal system. The Court finds that none of the proceedings instituted by her can be regarded as inappropriate or misconceived applications to bodies or institutions with no power or competence to offer effective redress for the complaint in issue under the Convention. Nor has it been demonstrated that, at the time when the applicant brought an action for compensation – the most appropriate avenue for establishing any alleged causal link between the initial surgery and Mr Fernandes ’ s tragic death three months later and for shedding light on the extent of the doctors ’ alleged responsibility for his death – it was obvious that these proceedings would be bound to fail from the outset and hence should not be taken into account for the calculation of the six-month period (see, for example, Musayeva and Others v. Russia ( dec. ), no. 74239/01, 1 June 2006, and Rezgui v. France ( dec. ), no. 49859/99, ECHR 2000-XI).", "139. In the light of the above the Court considers, like the Chamber (see paragraph 133 above), that the application was not lodged out of time.", "B. Government ’ s preliminary objection", "140. The Government asked the Court to declare the application inadmissible as being manifestly ill-founded (see paragraph 213 below).", "141. The applicant did not specifically comment on this issue.", "142. The Court considers that the preliminary objection raised by the Government is so closely linked to the substance of the applicant ’ s complaint that it must be joined to the merits of the application (see, for example, O ’ Keeffe v. Ireland [GC], no. 35810/09, § 121, ECHR 2014 (extracts)).", "II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "143. The applicant alleged a breach of her husband ’ s right to life. She claimed that her husband had been the victim of a hospital-acquired infection and that the medical personnel had been careless and negligent in their diagnoses and treatment and in discharging her husband from hospital. In particular, she complained of delays in providing him with treatment and of the administration of medication in excessive doses. She did not, however, call into question her husband ’ s discharge from hospital authorised by Dr J.V. on 3 February 1998, that decision having been taken with her assent and that of her husband. She further complained that the authorities to which she had applied had failed to elucidate the precise cause of the sudden deterioration in the health of her husband, who had previously been perfectly fit. She also complained about the length of the domestic proceedings and the fact that she had not been informed of the exact cause of her husband ’ s death.", "144. The applicant relied on Articles 2, 6 § 1 and 13 of the Convention, the first of which reads as follows:", "“1. Everyone ’ s right to life shall be protected by law.”", "145. Reiterating that the Court was master of the characterisation to be given in law to the facts of the case and finding that these complaints covered the same ground, the Chamber found it appropriate to examine the applicant ’ s allegations solely under Article 2 of the Convention. The Grand Chamber agrees with this approach. It will therefore proceed in the same manner (see Bouyid v. Belgium [GC], no. 23380/09, § 55, ECHR 2015).", "A. The substantive aspect", "1. The Chamber judgment", "146. The Chamber held that there had been a violation of the substantive aspect of Article 2 of the Convention. It noted that the second gastroenterology expert who gave evidence before the IGS, and also the ENT and infectious-diseases panels in the proceedings before the Medical Association, had all indicated that meningitis was a complication that could arise in exceptional cases after a polypectomy. The Chamber further noted that doubts had been expressed by the infectious-diseases panel in the Medical Association proceedings as to the promptness with which the patient ’ s meningitis had been diagnosed.", "147. The Chamber held the view that the mere fact that the patient had undergone a surgical operation presenting a risk of infectious meningitis should have warranted immediate medical intervention in conformity with the medical protocol on post-operative supervision. However, this had not been done. Without wishing to speculate on the chances of survival of the applicant ’ s husband if his meningitis had been diagnosed earlier, it considered that the lack of coordination between the ENT department and the emergency unit at the hospital disclosed failings in the public hospital service, depriving the patient of the possibility of accessing appropriate emergency care. This fact was considered sufficient to find that the State had failed in its obligation to protect the physical integrity of Mr Fernandes.", "2. The parties ’ submissions", "(a) The applicant", "148. The applicant submitted that, according to the more recent understanding of Article 2 of the Convention (she referred to Dodov v. Bulgaria, no. 59548/00, 17 January 2008; Mehmet Şentürk and Bekir Şentürk v. Turkey, no. 13423/09, ECHR 2013; Arskaya v. Ukraine, no. 45076/05, 5 December 2013; Asiye Genç v. Turkey, no. 24109/07, 27 January 2015; and Elena Cojocaru v. Romania, no. 74114/12, 22 March 2016), for the Court to find that there had been a violation of Article 2 under its substantive limb, it had to be established that in concrete terms the promptness and diligence which could reasonably have been expected in the circumstances of the case had been lacking and, further, that this failing had contributed to putting the victim ’ s life at risk. The applicant noted that in the aforementioned cases the factor which had weighed most heavily in the Court ’ s judgment was the absence of the timely medical treatment which, in the circumstances of each case, could reasonably have been expected and whose absence had contributed significantly to the chain of events which put at risk the life of patients who, in the end, had died. She stressed that in these various situations the Court had emphasised that there was no call to speculate on what the victims ’ chances of survival might have been if the failings identified had not occurred; what counted was the unreasonable risk to which, in the circumstances of each case, the patient had been exposed and which had contributed to the chain of events leading to his or her death. The applicant observed that, in determining the relevant facts, the Court had applied the “beyond reasonable doubt” test, according to which the requisite proof could follow from a sufficiently persuasive combination of inferences and presumptions. She submitted, contrary to the Portuguese Government ’ s view, that the Chamber judgment provided a concrete application of these principles to the facts of the case. The applicant emphasised in this connection that the Court had subsequently applied the same principles in the Elena Cojocaru case, cited above.", "149. The applicant agreed with the facts as laid down in the Chamber judgment as well as the reasoning adopted in finding a substantive violation of Article 2 of the Convention. She further submitted that the Court should also take into account at least one other aggravating factor. In this connection the applicant argued that, irrespective of the origin of the bacterium which caused the meningitis, the treatment had not been administered as promptly as the situation demanded. The emergency team which had taken charge of the applicant ’ s husband at the CHNVG had been entirely unaware of, or else had disregarded, the fact that a nasal polypectomy had been performed two days earlier in the same hospital, and instead had treated the patient on the assumption that he was suffering from psychological problems. The applicant contended that the patient had not received any treatment between his arrival at the emergency department at about 1.30 a.m., and 10 a.m., when the lumbar puncture had been performed.", "150. The applicant submitted that while the bacterial meningitis had not been the immediate cause of her husband ’ s death, it was undeniable that this event had given rise to the succession of clinical complications which had continued up to his death on 8 March 1998 as a direct result of septicaemia caused by peritonitis. She argued that the clinical complications from which her husband had suffered between 29 November 1997 and 8 March 1998 could not be viewed in isolation from each other, as though there was no connection between them. Relying on the report which formed the basis for the final report of the IGS, the applicant submitted that, in the present case, there had been a series of clinical complications (opportunistic infections, ulcers and other illnesses or pathological symptoms), each of which could be attributed to a greater or lesser extent to a previous event in the chain. She emphasised that the starting-point in this chain of events had been an occurrence of meningitis, attributable to a hospital-acquired bacterium, which had not been treated with the promptness the situation demanded, with the consequent need to intensify the antibiotic treatment, resulting in a worsening of the victim ’ s state of health. This had contributed to the appearance of complications – and in particular of opportunistic infections and ulcers – which, occurring in succession, had resulted in the patient ’ s death.", "151. The applicant further submitted that there had been other instances of medical negligence, such as the four occasions on which her husband had been imprudently discharged from hospital (13 December 1997, 23 December 1997, 9 January 1998 and 3 February 1998). In addition, she argued that the direct cause of her husband ’ s death on 8 March 1998 undeniably amounted to medical negligence. She alleged that there had been an inexplicable delay in performing surgery, which should have taken place on 6 March but had in fact not been performed until 7 March at 8 p.m., by which time it had been too late to cure the peritonitis which had set in. In this connection she contended that it was undisputed that peritonitis, attributable in her husband ’ s case to a duodenal ulcer and the resulting perforated viscus, called for urgent surgery in order to avoid the onset of uncontrollable septicaemia, as in the present case. There was thus no reasonable explanation for the fact that the surgery had not been performed until 8 p.m. the following day. To that extent, the applicant submitted that this circumstance formed part of the series of unjustifiable delays in the delivery of appropriate medical treatment to her husband, which had deprived him of the possibility of access to such care. This constituted a further violation of the substantive limb of Article 2 of the Convention. In this connection she argued that even if the need for surgery had not become apparent until 7 March, this still did not explain why a surgeon had not been called until 3 p.m., thus leaving the patient without effective assistance until that time, and why he had been taken to the operating theatre without the necessary preparation, with the result that he had to be taken out of the theatre and then returned there around 8 p.m., by which time he had been in a very serious condition, between life and death.", "(b) The Government", "152. The Government submitted at the outset that the validity of the contention underpinning the applicant ’ s complaint – that the entire course of her deceased husband ’ s clinical treatment had been marked by a series of interconnected shortcomings and errors – had not been demonstrated in any of the proceedings at domestic level. It had never been proven that the death of the applicant ’ s husband was attributable to medical negligence. They argued that the Chamber judgment had accepted that no medical negligence had been established and that the death of the applicant ’ s husband had not been caused by an event occurring on 29 November 1997, an event identified and characterised by the Chamber as a lack of coordination between the ENT department and the emergency department of the first hospital. This, according to the Chamber, attested to “failings in the public hospital service” and had “deprived the patient of the possibility of access to appropriate emergency care”. Notwithstanding the absence of medical negligence and of a causal link the Chamber had deemed this finding to be “sufficient for the Court to consider that the State failed in its obligation to protect his physical integrity” in breach of the substantive aspect of Article 2 of the Convention.", "153. The Government, referring to the Court ’ s case-law ( Byrzykowski v. Poland, no. 11562/05, § 104, 27 June 2006; Eugenia Lazăr v. Romania, no. 32146/05, §§ 68-72, 16 February 2010; Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 130, ECHR 2014; and Powell v. the United Kingdom ( dec. ), no. 45305/99, ECHR 2000 ‑ V), maintained that in the area of health care the positive obligation arising for the Contracting States under Article 2 of the Convention with a view to preventing death caused by medical negligence was essentially of a procedural nature and involved a duty to put in place a regulatory structure requiring that hospitals, be they private or public, take appropriate steps to ensure that patients ’ lives were protected. In view of the facts of the case and the Court ’ s case-law, the Government submitted that the conclusion of the Chamber judgment raised serious doubts in that regard.", "154. In the Government ’ s submission, the health-care system in Portugal at the material time was supported by a comprehensive and appropriate regulatory scheme; patients were covered by a charter which included their rights and obligations, and could present and formally lodge complaints; doctors were subject to ethical rules and, in the performance of their duties, were required to comply with good medical practice and apply technical and scientific knowledge in accordance with best practice and the relevant clinical protocols. Moreover, all hospital activity was subjected to a system of supervision and doctors who failed to comply with the duty of diligence or the ethical rules were liable to disciplinary measures; in the event of an allegation of negligence resulting in the death of a patient, criminal proceedings for the crime of negligent homicide could be instituted and an action for civil liability could be brought.", "155. They noted that no expert opinions, documents or other evidence submitted at the domestic level had confirmed the allegations made by the applicant. The latter, in the Government ’ s view, had disputed the diagnoses made, the medications prescribed, the timing of the operation and the discharge decisions, with the exception of the discharge granted on 3 February 1998 which she and her husband had themselves requested. However, the Government stressed that the conclusion reached by the various domestic bodies, which had heard evidence from a great number of doctors and other experts, was that the assistance which the doctors concerned had provided to the patient had disclosed no negligent conduct, and no errors had been committed. The Government further asserted that all necessary care and treatment had been provided to the applicant ’ s husband; in particular, there had been no manifest failure to provide essential care or refusal to admit and attend to the patient. Having regard to the regulatory framework, they considered that the circumstances of the present case did not reveal any failure on the part of the Portuguese authorities to comply with the positive obligation imposed upon them by virtue of Article 2 of the Convention.", "156. The Government reiterated that the Chamber judgment had been insufficiently reasoned and that it had departed from the Court ’ s existing line of case-law in an area of fundamental importance, thereby creating legal uncertainty for the State. They argued that in finding a violation of the right to life under the substantive limb of Article 2, in the absence of medical negligence, of any established causal link with the patient ’ s death, or of any failure to provide treatment by refusing to admit or attend to the patient, but simply on the basis of a possible lack of coordination between hospital services that had no consequences for the value protected by the rule, the Chamber had acted as a fourth instance and had expanded the Court ’ s area of competence to include the assessment in abstracto of the functioning of domestic health-care services. This should not be its role.", "3. The third-party interveners", "(a) The United Kingdom Government", "157. The United Kingdom Government noted that the present case raised questions as to the extent to which a Contracting State could be in breach of the substantive aspect of Article 2 of the Convention as a result of deficiencies in the provision of medical treatment. In this regard they submitted that Contracting States had a positive obligation under Article 2 § 1 to make regulations compelling hospitals to adopt appropriate measures for the protection of their patients ’ lives. A failure to discharge that obligation to regulate medical treatment could amount to a breach of the substantive aspect of Article 2, where that failure led to the death of a person within the Contracting State ’ s jurisdiction. However, in the view of the United Kingdom Government, deficiencies in the provision of medical treatment by health-care professionals and hospital staff did not engage the responsibility of the Contracting State under the substantive aspect of Article 2, but could only engage the procedural aspect of Article 2. The United Kingdom Government, referring to a number of cases determined by this Court, emphasised that previous cases had been decided consistently with these general principles.", "158. As to the substantive aspect of Article 2 in connection with a failure to provide health care, the United Kingdom Government emphasised that the Convention contained no express provision recognising a right to the provision of any kind of health care, nor a right to be provided with health care of any particular standard. In this connection they submitted that the Court, in Mehmet Şentürk and Bekir Şentürk and Asiye Genç, both cited above, had relied on an obiter dictum in Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001 ‑ IV), which concerned a claim of denial of medical treatment to a whole section of a population. They further considered that in any event the circumstances in the aforementioned cases had been particular and severe. The United Kingdom Government further noted that in these cases, and also in the case of Aydoğdu v. Turkey (no. 40448/06, 30 August 2016), the Court had applied the Osman line of case-law (see Osman v. the United Kingdom, 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII). They maintained that this case-law could not be extended to cases where medical treatment had been provided to a person but had been provided deficiently (for example, because there had been medical negligence). Finally, the United Kingdom Government observed that the Turkish cases referred to above and the case of Elena Cojocaru, cited above, suggested that there could be a breach of the substantive aspect of Article 2 where there was a dysfunction in the health ‑ care system. However, they were of the view that a dysfunction in the management of a particular hospital or hospital department, or dysfunctional coordination between two different hospitals, would not of itself be sufficient to engage the Contracting State ’ s obligations under the substantive aspect of Article 2, unless it was established that the dysfunction was the result of a failure by the Contracting State to meet its regulatory obligations referred to above.", "(b) The Government of Ireland", "159. The Government of Ireland provided the Court with a detailed account of the regulation of medical practice in Ireland. They submitted that Ireland had made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients. The Chamber judgment appeared to suggest however that, notwithstanding this, a Contracting State might still be found to be in breach of Article 2 by reason of an error of judgment on the part of a health professional. The Government of Ireland submitted that the Chamber judgment further suggested that, even where a case had been rigorously examined by an adequate national system and no error identified, the Court might nevertheless substitute its own reasoning for that of the national courts and tribunals. In this regard they submitted that the Chamber judgment in this case represented a departure from established jurisprudence.", "160. Analysing the medical negligence and health-care cases dealt with by the Court over the last sixteen years, the Government of Ireland submitted that there was a consistent approach by the Court in relation to the application of Article 2 in both its substantive and procedural aspects. According to them, the principles which emerged were as follows: (1) where a Contracting State had made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, matters such as an error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient were not sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life; (2) there might be an exception where the negligence attributable to that hospital ’ s medical staff went beyond a mere error or medical negligence. These circumstances seemed to occur where the domestic courts found the relevant staff in a hospital setting responsible and liable for more than negligence and/or where there was a denial of care/medical treatment simpliciter, resulting in the patient ’ s life being put in danger.", "161. The Government of Ireland submitted that no such exception had existed in the facts of the present case. They underlined the pertinence of the dissenting opinions annexed to the Chamber judgment, as well as Judge Sajó ’ s dissent in the case of Elena Cojocaru, cited above. In conclusion, the Government of Ireland submitted that the existing line of reasoning established in the case-law prior to the current case should be adopted and continued in the case at hand. In their view any departure from this case-law would lead to legal uncertainty in the application of obligations under Article 2 and would undermine the validity of domestic efforts and authorities involved in the regulation of health care, especially in circumstances where there was no causation between an alleged breach of duty and an injury or death.", "4. The Court ’ s assessment", "(a) Summary of the relevant case-law", "162. The Court is frequently called upon to rule on complaints alleging a violation of Article 2 of the Convention in the context of health care. A considerable number of these cases concern allegations of negligence occurring in the context of medical treatment in hospitals. In this regard the Court considers that the present case provides an opportunity to reaffirm and clarify the scope of the substantive positive obligations of States in such cases.", "163. The Court would emphasise at the outset that different considerations arise in certain other contexts, in particular with regard to the medical treatment of persons deprived of their liberty or of particularly vulnerable persons under the care of the State, where the State has direct responsibility for the welfare of these individuals (see, for example, Slimani v. France, no. 57671/00, ECHR 2004 ‑ IX (extracts), and Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, §§ 143-44). Such circumstances are not in issue in the present case.", "( i ) General principles", "164. The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe, requires the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see Calvelli and Ciglio, § 48, and Vo, § 88, both cited above).", "165. The Court has stressed many times that, although the right to health – recognised in numerous international instruments – is not as such among the rights guaranteed under the Convention and its Protocols (see Vasileva v. Bulgaria, no. 23796/10, § 63, 17 March 2016), the aforementioned positive obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake (see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 130), including in the public ‑ health sphere.", "166. In the particular context of health care the Court has interpreted the substantive positive obligation of the State as requiring the latter to make regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients ’ lives (see, among many other authorities, Oyal v. Turkey, no. 4864/05, § 54, 23 March 2010, and Lambert and Others v. France [GC], no. 46043/14, § 140, ECHR 2015 (extracts)).", "167. However, it has not excluded the possibility that the acts and omissions of the authorities in the context of public health policies, may, in certain circumstances, engage the Contacting Parties ’ responsibility under the substantive limb of Article 2 (see Powell, cited above).", "(ii) Case-law on medical negligence", "168. In cases where allegations of medical negligence were made in the context of the treatment of a patient, the Court has consistently emphasised that, where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, matters such as an error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient are not sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (see, among many other authorities, Powell, cited above, and Sevim Güngör v. Turkey ( dec. ), no. 75173/01, 14 April 2009).", "169. To date, in cases concerning medical negligence, the Court has rarely found deficiencies in the regulatory framework of member States as such ( see Arskaya, cited above, § 91, and, a contrario, Z v. Poland, no. 46132/08, §§ 110-12, 13 November 2012; see also Altuğ and Others v. Turkey, no. 32086/07, § 73, 30 June 2015; Glass v. the United Kingdom, ( dec. ), no. 61827/00, 18 March 2003; and Sevim Güngör, cited above).", "170. In the case of Arskaya v. Ukraine, cited above, the applicant alleged that her son, who had been hospitalised for pneumonia and tuberculosis, had died as a result of medical negligence on account of inadequate health-care regulations concerning patients refusing to consent to treatment. The Court, when finding a substantive violation of Article 2, noted that the local regulations governing patients ’ admission to intensive care were inadequate. It further found that there was a lack of appropriate rules for establishing patients ’ decision-making capacity, including their informed consent to treatment. It considered therefore that the authorities had not taken sufficient steps to put in place a regulatory framework ensuring that the life of the applicant ’ s son was properly protected by law as required by Article 2 of the Convention ( ibid. §§ 84-91).", "171. In a number of cases the Court has also addressed the substance of the applicants ’ medical negligence claims. However, in all those cases, such claims were considered unfounded on the facts because no medical negligence had been established at the domestic level, notably by medical experts (see, for example, Skraskowski v. Poland ( dec. ), no. 36420/97, 6 April 2000; Sieminska v. Poland, no. 37602/97, 29 March 2001; Buksa v. Poland ( dec. ), no. 75749/13, § 13, 31 May 2016; and Mihu v. Romania, no. 36903/13, § 67, 1 March 2016). The Court reiterates that it is not for it to speculate, on the basis of the medical information submitted to it, on whether the conclusions of the medical experts on which domestic court decisions were founded were correct (see Sayan v. Turkey, no. 81277/12, § 112, 11 October 2016, and Balcı v. Turkey ( dec. ), no. 58194/10, § 45, 20 October 2015, and the cases cited therein).", "172. The Court has usually reviewed such factual issues under the procedural limb, considering that the events leading to the death of the patient and the responsibility of the health professionals involved were matters which must be addressed from the angle of the adequacy of the mechanisms that were in place for shedding light on the course of those events, allowing the facts of the case to be exposed to public scrutiny, not least for the benefit of the applicants ( see, for example, Trzepalko v. Poland ( dec. ), no. 25124/09, § 24, 13 September 2011; Oyal, cited above; Eugenia Lazăr, cited above, §§ 69-70; Rinkūnienė v. Lithuania ( dec. ), no. 55779/08, 1 December 2009; and Zafer Öztürk v. Turkey, no. 25774/09, § 46, 21 July 2015).", "(iii) Case-law on denial of health care", "173. The Court has further held that an issue may arise under Article 2 where it is shown that the authorities of a Contracting State have put an individual ’ s life at risk through the denial of the health care which they have undertaken to make available to the population generally (see Cyprus v. Turkey, cited above, § 219).", "174. Until recently, the type of cases which were examined by the Court with reference to the aforementioned principle concerned applicants who were claiming that the State should pay for a particular form of conventional treatment because they were unable to meet the costs it entailed (see, for example, Nitecki v. Poland ( dec. ), no. 65653/01, 21 March 2002; Pentiacova and Others v. Moldova ( dec. ), no. 14462/03, ECHR 2005 ‑ I; Gheorghe v. Romania ( dec. ), no. 19215/04, 22 September 2005; and Wiater v. Poland ( dec. ), no. 42290/08, 15 May 2012) or that they should have access to unauthorised medicinal products for medical treatment (see Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12, ECHR 2012 (extracts)). The Court did not find a breach of Article 2 in any of these cases, either because it considered that sufficient medical treatment and facilities had been provided to the applicants on an equal footing with other persons in a similar situation (see Nitecki and Gheorghe, both cited above) or because the applicants had failed to adduce any evidence that their lives had been put at risk (see Pentiacova and Others, cited above). In Hristozov and Others, cited above, the Court did not find fault with the regulations governing access to unauthorised medicinal products in situations where conventional forms of medical treatment appeared insufficient, and considered that Article 2 of the Convention could not be interpreted as requiring access to unauthorised medicinal products for terminally-ill patients to be regulated in a particular way ( ibid. § 108).", "175. In this connection the Court reiterates that issues such as the allocation of public funds in the area of health care are not a matter on which the Court should take a stand and that it is for the competent authorities of the Contracting States to consider and decide how their limited resources should be allocated, as those authorities are better placed than the Court to evaluate the relevant demands in view of the scarce resources and to take responsibility for the difficult choices which have to be made between worthy needs (see Wiater, § 39, Pentiacova and Others and Gheorghe, all cited above).", "176. The Court found a procedural violation in the case of Panaitescu v. Romania ( no. 30909/06, 10 April 2012) where it considered that the State had failed to prevent the applicant ’ s life from being avoidably put at risk by not providing him with the appropriate health care as ordered by the national courts. This was a very exceptional case which concerned the refusal of the domestic authorities to provide the patient with a particular, costly cancer drug free of charge, in circumstances where the domestic courts had found that the individual in question had such an entitlement.", "(iv) Recent case-law developments", "177. The Court observes that the parties, in their submissions, focused on some recent cases concerning a failure to provide emergency medical care in the context of pre- or post-natal care.", "178. A substantive violation of Article 2 was found in the context of denial of health care in Mehmet Şentürk and Bekir Şentürk, cited above, where the first applicant ’ s wife, who was pregnant, died in an ambulance because of the doctors ’ refusal to carry out an urgent operation owing to her inability to pay medical fees. In this connection the Court held that it was not disputed that the patient had arrived at the hospital in a serious condition and that she required emergency surgery, failing which there were likely to be extremely grave consequences. While the Court did not want to speculate on the chances of survival of the first applicant ’ s wife had she received medical treatment, it considered that the medical staff had been fully aware that transferring the patient to another hospital would put her life at risk. In this regard it took note that domestic law did not have any provisions in this area capable of preventing the failure to give the patient the medical treatment she had required on account of her condition. The Court therefore considered that the first applicant ’ s wife, victim of a flagrant malfunctioning of the relevant hospital departments, had been deprived of the possibility of access to appropriate emergency care ( ibid. §§ 96-97).", "179. In the case of Asiye Genç, cited above, the applicant ’ s new ‑ born baby died in an ambulance after being refused admission to a number of public hospitals owing to a lack of space or adequate equipment in their neonatal units. The Court, considering that the State had not sufficiently ensured the proper organisation and functioning of the public hospital service, or more generally its health protection system, held that the applicant ’ s son had been the victim of a dysfunction in the hospital services, as he had been deprived of access to appropriate emergency treatment. It emphasised that the baby had not died because there had been negligence or an error of judgment in his medical care, but because no treatment whatsoever had been offered. The Court therefore concluded that there had been a refusal to provide medical treatment, resulting in the patient ’ s life being put in danger (ibid. §§ 80-82).", "180. In Elena Cojocaru, cited above, the applicant ’ s pregnant daughter, who was suffering from a serious pre-natal condition, died after a doctor at the public hospital had refused to perform an emergency C-section and she was transferred to another hospital, 150 km away, without a doctor ’ s supervision. The new-born baby died two days later. The Court found that the circumstances in that case constituted a failure to provide adequate emergency treatment ( ibid. § 125) since, irrespective of the reason, the patient ’ s transfer had delayed the emergency treatment she needed. The apparent lack of coordination of the medical services and the delay in administering the appropriate emergency treatment attested to a dysfunction in public hospital services ( ibid. § 111).", "181. The case of Aydoğdu, cited above, concerned the death of a premature baby due to a combination of circumstances, notably on account of a dysfunction in the health system in a particular region of Turkey ( ibid. §§ 55 and 76). In that case the Court considered that the authorities responsible for health care must have been aware at the time of the events that there was a real risk to the lives of multiple patients, including the applicant ’ s baby, owing to a chronic state of affairs which was common knowledge, and yet had failed to take any of the steps that could reasonably have been expected of them to avert that risk. The Court noted that the Government had not explained why taking such steps would have constituted an impossible or disproportionate burden for them, bearing in mind the operational choices that needed to be made in terms of priorities and resources ( ibid. § 87). It therefore held that Turkey had not taken sufficient care to ensure the proper organisation and functioning of the public hospital service in this region of the country, in particular because of the lack of a regulatory framework laying down rules for hospitals to ensure protection of the lives of premature babies. The Court, noting that, apart from the negligent behaviour of the medical staff, there was a causal link between the baby ’ s death and the above ‑ mentioned structural problems, held that the baby had been the victim of negligence and structural deficiencies. This had effectively prevented her from receiving appropriate emergency treatment and amounted to a refusal to provide medical treatment, resulting in the patient ’ s life being put in danger ( ibid. § 88).", "182. The predominant features which stand out in the aforementioned cases - apart from the case of Elena Cojocaru which follows the line taken in the Chamber judgment in the present case - clearly demonstrate that the Court has distinguished these cases, where there is an arguable claim of a denial of immediate emergency care, from cases which concern allegations of mere medical negligence (see Mehmet Şentürk and Bekir Şentürk, §§ 85, 104 and 105; Aydoğdu, §§ 62, 76 and 80; and Asiye Genç, §§ 73, 76 and 82, all cited above; see also M. v. Turkey, no. 4050/10 ( dec ), 15 October 2013, and Sayan, cited above, §§ 111-12, where the applicants were unable to substantiate the alleged denial of health care). Thus, the approach adopted in those cases cannot be transposed to cases where the allegations concern mere medical negligence.", "183. These cases are, in the Court ’ s view, exceptional ones in which the fault attributable to the health-care providers went beyond a mere error or medical negligence. They concerned circumstances where the medical staff, in breach of their professional obligations, failed to provide emergency medical treatment despite being fully aware that a person ’ s life would be put at risk if that treatment was not given (see Mehmet Şentürk and Bekir Şentürk, cited above, § 104).", "184. Moreover, as observed by the United Kingdom Government, the Court ’ s approach, particularly in the case of Aydoğdu, cited above, is akin to the test which it applies when examining the substantive positive obligation of the State to undertake preventive operational measures to protect an individual whose life is imminently at real risk (see, for general principles, Osman, cited above, §§ 115-16 ). In Aydoğdu the failure to provide emergency medical treatment resulted from a dysfunction in the hospital services in that particular region, a situation of which the authorities were or ought to have been aware but which they had failed to address by undertaking the necessary measures to prevent the lives of patients being put at risk. In this regard the Court emphasises that the dysfunctioning of the hospital services referred to in Aydoğdu and Asiye Genç, both cited above, did not concern negligent coordination between different hospital services or between different hospitals vis-à-vis a particular patient. It concerned a structural issue linked to the deficiencies in the regulatory framework (see Aydoğdu, cited above, § 87).", "(b) The Court ’ s approach", "185. Having regard to its case-law summarised above, the Court considers that the approach adopted hitherto should be clarified.", "186. In this regard the Court reaffirms that in the context of alleged medical negligence, the States ’ substantive positive obligations relating to medical treatment are limited to a duty to regulate, that is to say, a duty to put in place an effective regulatory framework compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients ’ lives.", "187. Even in cases where medical negligence was established, the Court would normally find a substantive violation of Article 2 only if the relevant regulatory framework failed to ensure proper protection of the patient ’ s life. The Court reaffirms that where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, matters such as an error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient cannot be considered sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (see, among many other authorities, Powell and Sevim Güngör, both cited above).", "188. For the Court ’ s examination of a particular case, the question whether there has been a failure by the State in its regulatory duties calls for a concrete assessment of the alleged deficiencies rather than an abstract one. In this regard, the Court reiterates that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015 and the cases cited therein ). Therefore, the mere fact that the regulatory framework may be deficient in some respect is not sufficient in itself to raise an issue under Article 2 of the Convention. It must be shown to have operated to the patient ’ s detriment (compare and contrast Z v. Poland, cited above, §§ 110-12, and Arskaya, cited above, §§ 84-91).", "189. It must, moreover, be emphasised that the States ’ obligation to regulate must be understood in a broader sense which includes the duty to ensure the effective functioning of that regulatory framework. The regulatory duties thus encompass necessary measures to ensure implementation, including supervision and enforcement.", "190. On the basis of this broader understanding of the States ’ obligation to provide a regulatory framework, the Court has accepted that, in the very exceptional circumstances described below, the responsibility of the State under the substantive limb of Article 2 of the Convention may be engaged in respect of the acts and omissions of health-care providers.", "191. The first type of exceptional circumstances concerns a specific situation where an individual patient ’ s life is knowingly put in danger by denial of access to life-saving emergency treatment ( see, for example, Mehmet Şentürk and Bekir Şentürk, and, by contrast, Sayan, both cited above). It does not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment.", "192. The second type of exceptional circumstances arises where a systemic or structural dysfunction in hospital services results in a patient being deprived of access to life-saving emergency treatment and the authorities knew about or ought to have known about that risk and failed to undertake the necessary measures to prevent that risk from materialising, thus putting the patients ’ lives, including the life of the particular patient concerned, in danger (see, for example, Asiye Genç and Aydoğdu, both cited above).", "193. The Court is aware that on the facts it may sometimes not be easy to distinguish between cases involving mere medical negligence and those where there is a denial of access to life-saving emergency treatment, particularly since there may be a combination of factors which contribute to a patient ’ s death.", "194. However, the Court reiterates at this juncture that, for a case to fall into the latter category, the following factors, taken cumulatively, must be met. Firstly, the acts and omissions of the health-care providers must go beyond a mere error or medical negligence, in so far as those health-care providers, in breach of their professional obligations, deny a patient emergency medical treatment despite being fully aware that the person ’ s life is at risk if that treatment is not given (see Mehmet Şentürk and Bekir Şentürk, cited above, § 104).", "195. Secondly, the dysfunction at issue must be objectively and genuinely identifiable as systemic or structural in order to be attributable to the State authorities, and must not merely comprise individual instances where something may have been dysfunctional in the sense of going wrong or functioning badly (see, in particular, Aydoğdu, cited above, § 87, and, by contrast, Eugenia Lazăr, cited above, §§ 69-70).", "196. Thirdly, there must be a link between the dysfunction complained of and the harm which the patient sustained. Finally, the dysfunction at issue must have resulted from the failure of the State to meet its obligation to provide a regulatory framework in the broader sense indicated above (see paragraph 189 above and, for example, Mehmet Şentürk and Bekir Şentürk, cited above, § 96, and Aydoğdu, cited above, §§ 87-88).", "(c) Application of those criteria to the present case", "197. The Court observes that, in the instant case, the applicant did not allege or imply that her husband ’ s death had been caused intentionally. She submitted that her husband had lost his life as a result of a hospital-acquired infection and of various instances of medical negligence which occurred throughout his treatment, and that the doctors in charge of treating him had failed to undertake the necessary measures to save her husband ’ s life. In particular, she claimed that her husband had been infected at the hospital by the Pseudomonas cepacia bacterium, which had caused her husband ’ s meningitis; that a serious error of diagnosis had been made when her husband had attended the emergency department of the CHVNG on 29 November 1997; that this delay in diagnosis had allowed a life-threatening infection to develop, which had then had to be treated with very high doses of medication with extremely damaging gastrointestinal side-effects; that the decision to discharge her husband from the CHVNG on various dates had not been accompanied by the requisite medical follow-up; and that the perforated duodenal ulcer had been diagnosed well before the surgery performed on 7 March 1998.", "198. At the outset, the Court emphasises that it is not for the Court to call into question the medical professionals ’ assessment of the health status of the now deceased patient, or their decisions regarding how he should have been treated (see Glass, cited above). Those clinical assessments and decisions were made against the background of the patient ’ s state of health at the time and the conclusions of the medical staff as to what steps needed to be taken for his treatment. In this connection the Court observes that the medical treatment provided to the applicant ’ s husband was subjected to domestic scrutiny and that none of the judicial or disciplinary bodies which examined the applicant ’ s allegations ultimately found any fault with his medical treatment. Moreover, while some experts voiced concerns or criticism with regard to certain aspects of his treatment, none of the medical expert evidence conclusively established the existence of medical negligence in the treatment of the applicant ’ s husband.", "199. The Court reiterates in this regard that, except in cases of manifest arbitrariness or error, it is not the Court ’ s function to call into question the findings of fact made by the domestic authorities, particularly when it comes to scientific expert assessments, which by definition call for specific and detailed knowledge of the subject (see Počkajevs v. Latvia ( dec. ), no. 76774/01, 21 October 2004). It follows that the examination of the circumstances leading to the death of the applicant ’ s husband and the alleged responsibility of the health professionals involved are matters which must be addressed from the angle of the adequacy of the mechanisms in place for shedding light on the course of those events. These aspects fall to be examined under the procedural obligation of the State as addressed below (see, among other authorities, Eugenia Lazăr, § 70; Powell ( dec. ); Sevim Güngör ( dec. ); and Mihu, § 68, all cited above).", "200. The Court observes that in the present case the applicant did not complain that her husband had been denied access to medical treatment in general or emergency treatment in particular. Nor is there any information in the case file which would suggest such an issue in the present case. Rather, the applicant complained that the medical treatment provided to her husband had been deficient because of the negligence of the doctors who had treated him. In the Court ’ s view, an alleged error in diagnosis leading to a delay in the administration of proper treatment, or an alleged delay in performing a particular medical intervention, cannot in themselves constitute a basis for considering the facts of this case on a par with those concerning denial of healthcare.", "201. Moreover, the Court considers that no sufficient evidence has been adduced in the present case to demonstrate that there existed, at the material time, any systemic or structural dysfunction affecting the hospitals where the applicant ’ s husband was treated, which the authorities knew or ought to have known about and in respect of which they failed to undertake the necessary preventive measures, and that such a deficiency contributed decisively to the death of the applicant ’ s husband (compare Asiye Genç, § 80, and Aydoğdu, § 87, both cited above). In this respect, while the Court does not disregard the critical remarks which were made by the infectious ‑ diseases panel (see paragraph 53 above), it observes, firstly, that this panel neither mentioned any supporting evidence for these general remarks nor considered that this alleged deficiency contributed decisively to the death of the applicant ’ s husband. Secondly, these views were not endorsed by the Medical Association ’ s regional disciplinary council for the North region in its decision, which was given after having examined the conclusions of five different specialist panels, including that of the infectious ‑ diseases panel. Finally, no similar views were mentioned by any other experts who gave evidence in the different proceedings at the national level.", "202. It has not been demonstrated, either, that the alleged fault attributable to the health-care professionals went beyond a mere error or medical negligence or that the health-care professionals involved in the treatment of the applicant ’ s husband failed, in breach of their professional obligations, to provide emergency medical treatment to him despite being fully aware that his life was at risk if that treatment was not given. In this regard the Court, contrary to the Chamber ’ s finding, considers that the alleged lack of coordination between the ENT department of the CHVNG and the hospital ’ s emergency department does not, by itself, amount to a dysfunction in hospital services capable of engaging the State ’ s responsibility under Article 2. In the present case, the Court does not have at its disposal any evidence or other elements that would enable it to make any findings or reach any conclusions establishing a situation of structural or systemic dysfunctions in the health-care services in question.", "203. In view of the above considerations, the Court takes the view that the present case concerns allegations of medical negligence. In these circumstances Portugal ’ s substantive positive obligations are limited to the setting-up of an adequate regulatory framework compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients ’ lives (see paragraphs 186 and 189 above).", "204. Having regard to the detailed rules and standards laid down in the domestic law and practice of the respondent State in the area under consideration (see paragraphs 88-109 above), the Court considers that the relevant regulatory framework does not disclose any shortcomings as regards the State ’ s obligation to protect the right to life of the applicant ’ s husband. Nor has the applicant argued otherwise.", "205. Therefore, the Court finds that there has been no violation of Article 2 of the Convention in its substantive aspect.", "B. The procedural aspect", "1. The Chamber judgment", "206. The Chamber found that there had been a violation of the procedural aspect of Article 2 of the Convention. It considered at the outset that the Portuguese legal system provided citizens with means which, theoretically, met the requirements of Article 2 of the Convention.", "207. With regard, however, to the effectiveness of the mechanisms the Chamber noted, firstly, the excessive length of the domestic proceedings before the IGS, the Vila Nova de Gaia District Court and the Oporto Administrative and Fiscal Court, which did not meet the requirement of promptness under the procedural limb of Article 2 of the Convention. Secondly, it considered that none of the decisions taken, nor any of the experts ’ assessments presented, had addressed satisfactorily the question of the possible causal link between the various illnesses suffered by the patient two days after the surgery. The Chamber observed that in each set of proceedings the events had been described in chronological order in isolation from each other. Finally, the Chamber considered that if meningitis was a possible complication following this type of surgery, then the issue as to whether the applicant ’ s husband had been duly informed of the risks he faced so that he could give his informed consent had to be addressed by the domestic courts. No explanation had been provided in the domestic proceedings regarding the pre- and post ‑ operative medical protocol for this surgery. The Chamber therefore considered that the domestic authorities had not dealt with the applicant ’ s case concerning her husband ’ s death in a manner compatible with the procedural requirements of Article 2 of the Convention.", "2. The parties ’ submissions", "(a) The applicant", "208. The applicant submitted that where a death occurred in a hospital without the cause being clarified, there was in principle an obligation to establish an appropriate procedural mechanism for determining that cause, for holding any persons at fault to account and for correcting any shortcomings in the functioning of the system. In this regard she stressed that she had consistently set in motion the appropriate mechanisms at the domestic level. According to the Court ’ s case-law, compliance with the procedural obligation under Article 2 required: ( i ) that effective legal mechanisms exist for establishing the facts and the responsibility of those at fault; (ii) that the task of establishing such facts and responsibilities be assumed by impartial persons; (iii) that the procedures concerned be set in motion and carried through in good time and with suitable promptness, without unnecessary or unjustified delays; and (iv) that any specific steps required by the circumstances be taken.", "209. In this regard the applicant did not contest that the first two requirements had been satisfied in the circumstances of the present case. However, she claimed that the national authorities had failed to react to the situation with the necessary promptness, responsiveness and diligence, as established in paragraphs 132-37 of the Chamber judgment, with which she agreed. She further considered that there had been a number of failings which had compromised the decision-making process. Firstly, as the Chamber had noted, no comprehensive, thorough and satisfactory assessment had been made by the domestic authorities. Secondly, as the Chamber had likewise emphasised, the risks attendant on the intended surgery had not been made clear to the patient. Thirdly, the authorities had not even tried to determine the origin of the bacterium which had caused the meningitis and, fourthly, in the absence of a properly substantiated explanation for the chain of events in question an autopsy should have been mandatory.", "(b) The Government", "210. The Government submitted that the death of a patient in hospital could not be compared to the death of someone who was under the control of the authorities or the deaths of vulnerable persons in the care of public services. They considered that the death of a patient following a medical procedure in hospital did not require the automatic institution of an inquiry, particularly where the death did not give rise to doubts as to its cause or raise suspicions as to the existence of an intentional act or medical negligence. In the Government ’ s view an examination of all the circumstances was, however, necessary in order to determine the cause of death, with the performance of an autopsy being required only where it had not been possible to determine that cause. The Government submitted that, in the present case, there was no evidence or indication of medical negligence, and the cause of death was known. They stated that, pursuant to Article 54 of Legislative Decree no. 11/98 of 24 January 1998, autopsies were undertaken in the event of violent death or where the cause of death was unknown.", "211. They noted, nonetheless, that when the applicant had made her allegations, a number of proceedings of a different nature had been initiated and had gone on to run their full course; all the actions that were requested had been carried out, as had all the appropriate steps that had been necessary in order to help establish the facts and determine possible responsibilities. The Government provided a detailed description of the steps taken in the course of each set of proceedings. They maintained that the courts and the disciplinary bodies involved in the present case had had a clear and detailed set of facts at their disposal concerning, in particular, the causes of death, which had allowed them to conclude without any doubt that there had been no medical negligence. In this connection the Government stressed that the applicant had at every stage participated in the proceedings, presented her arguments and evidence in full adversarial proceedings, lodged complaints and appealed against decisions. Moreover, the judicial proceedings had taken place before independent and impartial judges and the hearings had been public.", "212. The Government conceded that the proceedings had been lengthy. However, they considered that this had not stood in the way of effective observance of the procedural obligation. They argued that the length of the criminal and civil proceedings and those before the IGS could be attributed precisely to the efforts made by the competent authorities to address with rigour all the facts of the case and all the doubts expressed by the applicant. In such circumstances, the Government considered that the duration of the proceedings could not be a ground for finding a violation of the procedural obligation under Article 2 of the Convention. At most, they argued, the lengthy proceedings might breach Article 6 § 1 of the Convention, which was incidentally the complaint lodged by the applicant.", "213. The Government reiterated that, in accordance with the Court ’ s case ‑ law, the obligation deriving from the procedural limb of Article 2 was one of means and not of result. In this regard, if some doubts had persisted concerning the events surrounding the applicant ’ s husband ’ s death, this was simply because there were always situations in which medical science was unable to predict, diagnose or explain. However, this was not in any way attributable to a lack of effort on the part of the domestic authorities. The Government therefore considered that the procedural obligations deriving from Article 2 of the Convention had been fulfilled in the present case. Accordingly, they called for the application to be rejected as inadmissible under Article 35 § 4 of the Convention, on the ground that it was manifestly ill-founded.", "3. The Court ’ s assessment", "(a) General principles", "214. The Court has interpreted the procedural obligation of Article 2 in the context of health care as requiring States to set up an effective and independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see, among other authorities, Šilih v. Slovenia [GC], no. 71463/01, § 192, 9 April 2009, and the cases cited therein).", "215. While, in some exceptional situations, where the fault attributable to the health-care providers went beyond a mere error or medical negligence, the Court has considered that compliance with the procedural obligation must include recourse to criminal law (see, for example, Mehmet Şentürk and Bekir Şentürk, §§ 104-105, and Asiye Genç, § 73, both cited above), in all other cases where the infringement of the right to life or to personal integrity is not caused intentionally, the procedural obligation imposed by Article 2 to set up an effective and independent judicial system does not necessarily require the provision of a criminal-law remedy (see paragraph 137 above; see also Cevrioğlu v. Turkey, no. 69546/12, § 54, 4 October 2016 ).", "216. The Court reiterates that the choice of means for ensuring the positive obligations under Article 2 is in principle a matter that falls within the Contracting State ’ s margin of appreciation. There are different avenues for ensuring Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means (see Cevrioğlu, cited above, § 55 ). However, for this obligation to be satisfied, such proceedings must not only exist in theory but also operate effectively in practice (see, for example, Byrzykowski, cited above, § 105, and Spyra and Kranczkowski v. Poland, no. 19764/07, § 88, 25 September 2012).", "217. A requirement of independence of the domestic system set up to determine the cause of death of patients in the care of the medical profession is implicit in this context. This requires not only a lack of hierarchical or institutional connection but also that all parties tasked with conducting an assessment in the proceedings for determining the cause of death of patients enjoy formal and de facto independence from those implicated in the events (see Bajić v. Croatia, no. 41108/10, § 90, 13 November 2012). This requirement is particularly important when obtaining medical reports from expert witnesses (see Karpisiewicz v. Poland ( dec. ), no. 14730/09, 11 December 2012), as the medical reports of expert witnesses are very likely to carry crucial weight in a court ’ s assessment of the highly complex issues of medical negligence, which gives them a particularly important role in the proceedings (see Bajić, cited above, § 95).", "218. Likewise, the procedural obligation under Article 2 in the context of health care requires, inter alia, that the proceedings be completed within a reasonable time (see Šilih, cited above, § 196). In that connection the Court emphasises that, apart from the concern for the respect of the rights inherent in Article 2 of the Convention in each individual case, more general considerations also call for a prompt examination of cases concerning medical negligence in a hospital setting. Knowledge of the facts and of possible errors committed in the course of medical care is essential to enable the institutions and medical staff concerned to remedy the potential deficiencies and prevent similar errors. The prompt examination of such cases is therefore important for the safety of all users of health-care services (see Oyal, cited above, § 76).", "219. This is why the Court has held that, in Article 2 cases, particularly in those concerning proceedings instituted to elucidate the circumstances of an individual ’ s death in a hospital setting, the lengthiness of proceedings is a strong indication that the proceedings were defective to the point of constituting a violation of the respondent State ’ s positive obligations under the Convention, unless the State has provided highly convincing and plausible reasons to justify the length of the proceedings (see, for example, Bilbija and Blažević v. Croatia, no. 62870/13, § 107, 12 January 2016).", "220. Unlike in cases concerning the lethal use of force by State agents, where the competent authorities must of their own motion initiate investigations, in cases concerning medical negligence where the death is caused unintentionally, the States ’ procedural obligations may come into play upon the institution of proceedings by the deceased ’ s relatives (see Šilih, cited above, § 156).", "221. Finally, the Court stresses that this procedural obligation is not an obligation of result but of means only ( ibid., § 193). Thus, the mere fact that proceedings concerning medical negligence have ended unfavourably for the person concerned does not in itself mean that the respondent State has failed in its positive obligation under Article 2 of the Convention (see Besen v. Turkey ( dec. ), no. 48915/09, § 38 in fine, 19 June 2012, and E.M. and Others v. Romania ( dec. ), no. 20192/07, § 50, 3 June 2014).", "(b) Application of these principles to the present case", "222. The Court observes that the applicant ’ s husband, who had been in good health, underwent a routine operation in hospital and ended up suffering from bacterial meningitis, ulcers, colitis and other medical complications which led to his death three months later from septicaemia caused by peritonitis and a perforated viscus. In view of the aforementioned sequence of events, the Court considers that the applicant had arguable grounds to suspect that her husband ’ s death could have been the result of medical negligence. The respondent State ’ s duty to ensure compliance with the procedural obligations arising under Article 2, in the proceedings instituted with regard to her husband ’ s death, is therefore engaged in the present case (see Šilih, cited above, § 197). This obligation came into play upon the institution of proceedings by the applicant ( ibid., § 156).", "223. The Court notes that in cases of medical negligence Portuguese law provides, in addition to the possibility of criminal proceedings, for the option of bringing proceedings for civil liability in the administrative courts against public hospitals. The hospitals may in turn be entitled to claim reimbursement of the damages payable from the officials who acted in breach of their professional duty. Furthermore, an application may be made to the Ministry of Health and the Medical Association seeking to establish disciplinary liability on the part of members of the health-care profession.", "224. On this basis the Court concludes that the Portuguese legal system offers litigants remedies which, in theory, meet the requirements of the procedural obligations under Article 2. The applicant has not argued otherwise.", "225. In the instant case, the applicant made use of all of the procedures mentioned above. The question is therefore whether, in the concrete circumstances of the case, given the fundamental importance of the right to life guaranteed under Article 2 of the Convention and the particular weight the Court has attached to the procedural requirement under that provision, the legal system as a whole dealt adequately with the case at hand (see Dodov, cited above, § 86; Arskaya, cited above, § 66; and Kudra v. Croatia, no. 13904/07, § 107, 18 December 2012 ).", "226. At the outset the Court observes that the applicant did not contest the independence and impartiality of the domestic authorities or the experts who gave evidence in the various proceedings. It further considers that the applicant did have the possibility to participate actively in the different proceedings and availed herself of her procedural rights to influence their course. There is nothing in the case file to demonstrate – nor has the applicant argued before the Grand Chamber – that she was placed at a procedural disadvantage vis-à-vis the medical institutions or doctors in any of these proceedings. It therefore remains to be ascertained whether the domestic proceedings were effective in terms of being thorough, prompt and concluded within a reasonable time.", "227. As regards the thoroughness, the Court finds it appropriate to respond first to the specific complaints raised by the applicant in her written submissions regarding the lack of an autopsy and of her husband ’ s consent to his operation (see paragraph 209 above). As regards the first of these issues, the Court agrees with the Chamber ’ s view that the cause of the applicant ’ s husband ’ s death had not raised any doubts which would have required an autopsy to be performed under the statutory provisions in that regard. As to the second issue, in the absence of a specific substantive complaint on the matter, the Court finds that the domestic judicial and other bodies cannot be faulted for not delving into that issue in depth (see, for example, Vasileva, cited above, § 76).", "228. The Court will now proceed with the examination of the manner in which the domestic proceedings were conducted.", "229. As regards the proceedings before the IGS the Court observes, firstly, that it took the IGS two years to order the opening of an investigation, and a further year to appoint an inspector to head the investigation. Secondly, evidence was heard from the applicant for the first time almost three years and six months after she had contacted the authorities. The investigation before this body therefore lacked promptness. The Court further observes that the proceedings before the IGS had already lasted for slightly more than seven years and ten months before the applicant was informed that the disciplinary proceedings initiated against Dr J.V. would be stayed pending the outcome of the criminal proceedings. During this period the Inspector ’ s report was set aside twice by the Inspector General for Health in order to obtain additional information or to order fresh expert assessments to be carried out by different experts in the fields of internal medicine and gastroenterology. The successive adoption of such decisions within one set of proceedings disclosed, in the particular circumstances of the present case, a deficiency in the manner in which the Inspector General investigated the case.", "230. As to the proceedings before the Medical Association, the Court observes that the latter responded promptly to the applicant ’ s request by seeking the opinions of five of its specialist panels immediately after receiving the patient ’ s medical records, and that the overall length of the proceedings before the Medical Association was approximately four years and five months at two levels. This cannot be considered per se as unreasonable. However, the Court cannot lose sight of the fact that the proceedings before this specialised body consisted merely in examining the patient ’ s medical records and the opinions of the specialist panels. The proceedings were written and no evidence was heard. Seen from this angle and in the absence of any explanation from the Government, the duration of these proceedings was also unreasonable.", "231. In view of the above, the Court considers that the disciplinary proceedings in the present case can hardly be regarded as effective for the purposes of Article 2. It is further necessary to examine the effectiveness of the criminal proceedings.", "232. In this connection the Court notes that, in the instant case, there is nothing to indicate that the death of the applicant ’ s husband was caused intentionally, and the circumstances in which it occurred were not such as to raise suspicions in that regard. Therefore, Article 2 did not necessarily require a criminal-law remedy. However, if deemed effective, such proceedings would by themselves be capable of satisfying the procedural obligation of Article 2 (see Šilih, cited above, § 202 ).", "233. The Court observes, firstly, that the prosecuting authorities initiated criminal proceedings against Dr J.V. merely on the basis of the report adopted by the Inspector in the proceedings before the IGS, without conducting any further investigation (see paragraph 62 above). As a result the criminal proceedings were concerned only with the narrow issue set out in the charges that had been brought, and did not deal with any of the other instances of alleged medical negligence complained of by the applicant. This in itself is sufficient to consider that they were deficient. Having regard to the limited scope of the criminal proceedings, the applicant could not be faulted for not appealing against the court ’ s judgment. Secondly, the proceedings were neither prompt nor was their overall duration reasonable. No significant procedural steps – save for those mentioned in paragraphs 60 and 61 above – were undertaken by the prosecuting authorities between 29 April 2002 and 7 December 2007, a period of almost five years and seven months. The proceedings in total lasted for six years, eight months and nineteen days.", "234. In view of the above shortcomings, the Court considers that the criminal proceedings in the present case were also ineffective for the purposes of Article 2. The Court further finds it necessary to examine the effectiveness of the action for compensation brought by the applicant before the administrative courts.", "235. As mentioned above (see paragraph 138 above), in the Court ’ s view those proceedings were, in principle, capable of providing the most appropriate redress in relation to the death of the applicant ’ s husband. However, the Court does not consider that they did so in the instant case, for the following reasons.", "236. The Court observes that the first striking feature of these proceedings is their considerable length. It notes that the compensation proceedings before the Oporto Administrative and Fiscal Court commenced on 6 March 2003 and ended on 26 February 2013. They therefore lasted for nine years, eleven months and twenty-five days over two levels of jurisdiction. Contrary to the Government ’ s assertion, the case file does not suggest that such lengthy proceedings were justified by the circumstances of the case. In particular, the Court stresses that the Oporto Administrative and Fiscal Court took more than four years to give a preliminary decision, and a further four years to arrange the hearings. The Court considers that such a lengthy time prolongs the ordeal of uncertainty not only for the claimants but also for the medical professionals concerned.", "237. Secondly, the Court considers that, for the purposes of the procedural obligation of Article 2, the scope of an investigation faced with complex issues arising in a medical context cannot be interpreted as being limited to the time and direct cause of the individual ’ s death. The Court cannot speculate on the reasons why the origin of the bacterium which caused the applicant ’ s husband to contract meningitis could not be established at domestic level. It finds however that, where there is a prima facie arguable claim of a chain of events possibly triggered by an allegedly negligent act that may have contributed to the death of a patient, in particular if an allegation of a hospital-acquired infection is concerned, the authorities may be expected to conduct a thorough examination into the matter. The Court considers that no such examination was conducted in the instant case, in which the domestic courts, instead of carrying out an overall assessment, approached the chain of events as a succession of medical incidents, without paying particular attention to how they may have related to each other.", "238. In sum, the Court considers that the domestic system as a whole, when faced with an arguable case of medical negligence resulting in the death of the applicant ’ s husband, failed to provide an adequate and timely response consonant with the State ’ s obligation under Article 2. Accordingly, there has been a violation of the procedural aspect of that provision.", "C. Conclusion", "239. The Court reiterates that there has been no violation of the substantive limb of Article 2 of the Convention and that there has been a violation of the procedural limb of Article 2 of the Convention. The Court therefore dismisses the Government ’ s preliminary objection that the application is manifestly ill-founded.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "240. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "241. In the proceedings before the Chamber, the applicant claimed 174,580 euros (EUR) and EUR 100,000 respectively by way of pecuniary and non-pecuniary damage.", "242. With regard to the sum claimed in respect of pecuniary damage, the Chamber found, besides the lack of evidence in support of the claim, no causal link between the violation found and the alleged pecuniary damage. Accordingly, it rejected that claim. By contrast, it considered that just satisfaction should be awarded on account of the fact that the violation of the substantive and procedural aspects of Article 2 had caused the applicant non-pecuniary damage by placing her in a position of distress and frustration. It awarded the applicant EUR 39,000 under that head.", "243. Before the Grand Chamber, in her observations of 31 August 2016, the applicant did not make any specific claims for just satisfaction. However, at the hearing before the Grand Chamber the applicant ’ s representative referred to her claim before the Chamber and emphasised that the applicant accepted the decision made by the latter with regard to just satisfaction.", "244. The Government did not comment on the question of just satisfaction after it was raised by the applicant ’ s representative at the hearing before the Grand Chamber.", "245. The Court reiterates that Article 41 empowers it to afford the injured party such satisfaction as appears to it to be appropriate (see Karácsony and Others v. Hungary [GC], no. 42461/13, § 179, ECHR 2016 (extracts)).", "246. It observes in this regard that there is no doubt that a claim for just satisfaction was duly made during the communication procedure before the Chamber, within the required time-limits (see, a contrario, Schatschaschwili v. Germany [GC], no. 9154/10, § 167, ECHR 2015, and Nagmetov v. Russia [GC], no. 35589/08, § 62, 30 March 2017), leading to an award of compensation to the applicant in respect of non-pecuniary damage.", "247. The Court further notes that, while the applicant did not make any fresh claim for just satisfaction within the required time-limit in the proceedings before the Grand Chamber, she subsequently referred to her claim before the Chamber and affirmed that she accepted the decision made by the latter with regard to just satisfaction. The Government, who had the opportunity to respond to this claim at the hearing, did not object.", "248. In view of the above, the Court is satisfied that a “claim” for just satisfaction has been made before the Court in the present case.", "249. Like the Chamber, the Court does not discern any causal link between the violation found and the unsubstantiated pecuniary damage alleged, and dismisses this claim.", "250. As regards non-pecuniary damage, the Court observes that the State was not found liable for the death of the applicant ’ s husband. Nevertheless, it considers that the applicant must have experienced severe distress and frustration on account of the inadequacy and protracted nature of the proceedings initiated by her in order to elucidate the circumstances surrounding the death of her husband. Ruling in equity, as required under Article 41, the Court awards her EUR 23,000 under this head.", "B. Costs and expenses", "251. As the applicant, who was granted legal aid for the proceedings before the Grand Chamber, submitted no claim for costs and expenses, the Court makes no award under this head (see Perdigão v. Portugal [GC], no. 24768/06, § 87, 16 November 2010).", "C. Default interest", "252. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1955 and lives in Riga. She is the mother of Mr Oļegs Petrovs (the applicant ’ s son), a Latvian national who was born in 1979 and who died on 29 May 2002.", "A. Events leading to the organ transplantation", "6. On 26 May 2002 at approximately 7 a.m. the applicant ’ s son sustained very serious injuries in a car accident near Bauska. At approximately 8.45 a.m. he was taken to hospital in Bauska. Later, at 2.45 p.m., he was transferred to Riga ’ s First Hospital ( Rīgas 1. slimnīca – “the Hospital” ) – an entity that was registered as a “non-profit municipally-owned limited - liability company” ( Rīgas pašvaldības bezpeļņas organizācija sabiedrība ar ierobežotu atbildību ) at the material time – where surgery was carried out on his head. Following the operation his condition remained very serious; he remained in the emergency department of the Hospital ( reanimācijas nodaļa ) and did not regain consciousness.", "7. At 11.50 p.m. on 28 May 2002 a call from the Hospital was received by the transplantation centre of Pauls Stradiņš Clinical University Hospital – an entity that was registered as a “non-profit State-owned joint stock company” ( bezpeļņas organizācija valsts akciju sabiedrība ) at the material time – providing information about a potential donor who was undergoing resuscitation. A coordinator from the transplantation centre, together with another doctor, went to the Hospital.", "8. At 0 .45 a.m. on 29 May 2002 the applicant ’ s son ’ s condition was noted in his medical record as being fatal. It was noted that medical resuscitation had been started. The death of the applicant ’ s son was recorded at 1.20 a.m. in his medical record at the Hospital.", "9. Between 1.35 a.m. and 3.45 a.m. a laparotomy was performed on the body, in the course of which the kidneys and the spleen were removed for organ transplantation purposes. This operation was carried out by the transplantation centre ’ s transplant surgeon, urologist and operating nurse, in the presence of the coordinator and the Hospital ’ s resuscitation specialist. On the death certificate the time of death was recorded as 2.45 p.m. on 29 May 2002 (probably by mistake – see 15 below).", "10. According to the applicant, during her son ’ s stay in the Hospital she was in permanent contact with the doctors there. On 29 May 2002, although her son ’ s condition was deteriorating, the applicant was not informed of it. She was also not asked whether her son had consented to being an organ donor and whether she would consent to organ transplantation in the absence of any wishes expressed by her son.", "11. According to the Government, the Hospital did not have information on record providing the contact details of any relatives, and they had informed the police about the son ’ s hospitalisation by dialling the emergency telephone number for the police. It had therefore, not been possible to contact any relatives. In this regard the Government referred to information provided by the Hospital which stated that “ given the fact that no telephone numbers of any relatives were recorded on the patient ’ s medical card ... there was apparently no contact with the applicant”.", "12. On 30 May 2002, in the context of criminal proceedings against the person held liable for the car accident, a forensic (post-mortem) examination on the applicant ’ s son ’ s body was carried out. It was noted, inter alia, that on 29 May 2002 between 1.35 a.m. and 3.45 a.m. a laparotomy had been performed on the body. The applicant obtained a copy of the forensic report on 11 February 2003 and realised only then that nine months earlier certain organs had been removed from her son ’ s body for transplantation purposes.", "B. Review of complaints at domestic level", "13. In response to a complaint lodged by the applicant, on 12 March 2003 the Hospital stated that the transplantation had been carried out by the transplant doctors in accordance with domestic law. It was noted that the applicant had not been informed of her son ’ s health condition because she had not visited the doctors at the Hospital.", "14. In response to further complaints by the applicant to the police and the prosecutor ’ s office, several examinations were carried out.", "15. In response to a query by the Security Police ( Drošības policija ), the Inspectorate of Quality Control for Medical Care and Working Capability ( “ the MADEKKI ” ) analysed the medical file and met with doctors and managers from the two medical institutions involved – Riga ’ s First Hospital and Pauls Stradiņš Clinical University Hospital. On 7 May 2003 it completed the examination and informed the Security Police of its conclusions. The MADEKKI provided an answer to the question of whether the medical practitioners had complied with the applicable domestic law in the following terms :", "“ In taking the decision [to remove organs] and in carrying out the removal of organs, the medical practitioners have complied with section 10 of the Law on Protection of the Body of a Deceased Person and Use of Human Organs and Tissue and provisions of regulation no. 431 (1996) ...", "There is no information at the MADEKKI ’ s disposal as to whether there was a stamp in Mr Petrovs ’ passport signifying his objection to the use of his body tissue and organs.", "[The applicant] was not informed about the possible removal of organs (the kidneys and the spleen) for transplantation purposes.”", "The MADEKKI also explained in their letter to the Security Police that the time of biological death was 1.20 a.m. on 29 May 2002 and not 2.45 p.m. as recorded, probably by mistake, on the death certificate.", "16. On 27 May 2003 the Security Police replied to the applicant on the basis of the MADEKKI report that the organs of her son had been removed in compliance with domestic law. They relied on section 10 of the Law on Protection of the Body of a Deceased Person and Use of Human Organs and Tissue ( “ the Law ” ) and regulation no. 431(1996). The applicant was forwarded a copy of the MADEKKI ’ s letter to the Security Police.", "17. On 17 June 2003 the prosecutor ’ s office forwarded the applicant ’ s complaint to the Security Police with a view to instituting an additional inquiry.", "18. On 15 July 2003 the MADEKKI replied to questions put by the Ministry of Health, which had been contacted by the National Human Rights Bureau further to a complaint by the applicant. They answered that there was no information at their disposal as to whether, at the time of her son ’ s death, any refusal of or consent to the use of his body, organs or tissue after his death had been recorded in the Population Register ( Iedzīvotāju reģistrs ). They also answered that the applicant had not been informed of the possible removal of organs (the kidneys and the spleen) for transplantation purposes. There was no information at the MADEKKI ’ s disposal as to whether there had been a stamp in Mr Petrovs ’ passport signifying an objection to the use of his body tissue and organs. On 13 August 2003 the Ministry of Health, replying in turn to the National Human Rights Bureau, concluded on the basis of the information provided by the MADEKKI that, because the applicant had not been informed about the possible transplantation, she had neither consented to it nor refused it.", "19. On 29 July 2003 the Security Police informed the applicant that her complaint was still being examined.", "20. On 12 November 2003 the Security Police adopted a decision not to institute criminal proceedings. For the same reasons as were given in the above-mentioned reports, it was concluded that the transplantation had been carried out in compliance with domestic law. The reports indicated that in his lifetime Mr Petrovs had not indicated any objection to the use of his body tissue and organs after death and that no objection to the use of his organs had been received from his relatives before the start of the transplantation. The coordinator of the transplantation centre had been responsible for informing the relatives about the issues pertaining to transplantation, and for obtaining records, consent, signatures and other relevant information. Taking into account the fact that the relatives had not been at the hospital at the time of the son ’ s biological death and that the removal of organs in such cases has to be performed immediately, it had not been possible to obtain their consent or refusal in relation to the organ removal.", "21. On 14 November 2003 the applicant was informed of this decision.", "22. On 23 January 2004 the National Human Rights Bureau replied to the applicant. According to the information at their disposal, there was nothing on record in the Population Register indicating whether Mr Petrovs would have allowed or refused the use of his body, tissue and organs after his death. According to the information provided by the Ministry of Health and on the basis of the conclusions established by the MADEKKI, the applicant had not been informed about the imminent removal of her son ’ s kidneys and spleen, and she had therefore neither consented to it nor refused it. Finally, the applicant was advised that she should contact the prosecutor ’ s office because the Security Police had not indicated any procedure or time-limits for lodging an appeal.", "23. On 4 March 2004, further to a subsequent complaint, a meeting was convened at which the Minister for Health discussed with the representatives of the Hospital and the transplantation centre the case of the removal of the applicant ’ s son ’ s organs. The Minister for Health was of the opinion that the relatives should have been informed about the organ removal and that their consent should have been obtained. The representatives stated that the organ removal had been conducted in compliance with the applicable law. The meeting record contained a note to the effect that in autumn 2003 a working group which had been established by the Ministry of Health had prepared amendments to the above-mentioned Law in order to define its provisions more clearly. They had made two proposals. The first proposal was to include in the Law a provision stating that on all occasions inquiries were to be made about the deceased person ’ s wishes with his or her closest relatives. The second proposal was to rely on the person ’ s wishes as expressed during his or her lifetime and, in the absence of any such wishes, to presume consent (no inquiries made with the closest relatives). It was also noted that the relevant committee of the Parliament had opted for the second option (see paragraph 41 below for the adopted text ). It was also noted that once the proposed amendments were passed by the Parliament, the occurrence of such “problematic situations would be practically ruled out”. On 17 March 2004 the applicant received reply from the Ministry of Health to this effect.", "24. On 6 May 2004 a prosecutor dismissed the applicant ’ s complaint concerning the refusal of 12 November 2003 to institute criminal proceedings. She relied on section 11 of the Law and indicated that consent from parents or from a legal guardian was required only in cases relating to the removal of organs for transplantation purposes from a dead child ’ s body. Accordingly, the actions of the medical practitioners did not constitute a crime and the 12 November 2003 decision had been lawful.", "25. On 29 June 2004 a superior prosecutor dismissed the applicant ’ s complaint concerning the prosecutor ’ s decision of 6 May 2004. He stated that – according to the information provided by the Ministry of Health – the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (see paragraph 28 below) had not been ratified by the Latvian Parliament and that Latvia had not even signed the Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin; Latvia was therefore not a party to this Convention. The prosecutor relied on Article 17 of the Additional Protocol and indicated that at the relevant time (May 2002) in Latvia these issues were regulated in sections 4 and 11 of the Law. These provisions did not require consent from close relatives unless the removal was from the body of a dead child. The rules relating to transplantation coordinators obliged them to obtain relatives ’ consent only in cases prescribed by law. The prosecutor concluded that there were no grounds to consider that the medical practitioners, in taking the decision to remove organs and in carrying out the removal of those organs, had infringed legal provisions. Therefore, there were no grounds to charge them with a crime under section 139 of the Criminal Law; at that time no other person had been charged with the crime. At the same time, the applicant was informed about the 2 June 2004 amendments to sections 4 and 11 of the Law, in which it was specified that the organs of a deceased person might be removed for transplantation purposes if there was no information recorded in the Population Register indicating any objection and if the relatives of the deceased had not, before the start of the transplantation, informed the hospital in writing of the deceased person ’ s objection – expressed during his or her lifetime – to the use of his or her organs and tissue after death.", "26. On 23 August 2004 the Prosecutor General in a final decision dismissed the applicant ’ s complaint concerning the decision of 29 July 2004. He also referred to sections 4 and 11 of the Law and noted that these provisions prohibited removal in cases where a refusal or objection had been received but not in cases where wishes of the closest relatives had not been established. These provisions, as in force in May 2002, therefore did not oblige medical practitioners to actively search for and inform the closest relatives of a deceased person about the possible removal for transplantation purposes of his or her body tissue and organs unless that person was a child. On 29 May 2002 the medical practitioners did not have any information at their disposal concerning a refusal of or objection to the removal of Mr Petrovs ’ organs. He concluded that the organ removal had been performed in accordance with domestic law. The Prosecutor General also observed that activities performed on the body of a deceased person could not be treated as interference with his or her private life." ]

[ "II. RELEVANT INTERNATIONAL DOCUMENTS AND DOMESTIC LAW", "A. The Council of Europe documents", "27. On 11 May 1978 the Committee of Ministers of the Council of Europe adopted Resolution (78) 29 on harmonisation of legislations of member states relating to removal, grafting and transplantation of human substances, which recommended that the governments of the Member States ensure that their laws conform to the rules annexed to the resolution or adopt provisions conforming to these rules when introducing new legislation. Article 10 of this Resolution provides:", "“ 1. No removal must take place when there is an open or presumed objection on the part of the deceased, in particular, taking into account his religious and philosophical convictions.", "2. In the absence of the explicit or implicit wish of the deceased the removal may be affected. However, a state may decide that the removal must not be effected if, after such reasonable inquiry as may be practicable has been made into the views of the family of the deceased and in the case of a surviving legally incapacitated person those of his legal representative, an objection is apparent; when the deceased was a legally incapacitated person the consent of his legal representative may also be required. ”", "28. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Council of Europe Treaty Series no. 164 ) is the first international treaty in the field of bioethics ( “the Convention on Human Rights and Biomedicine ”). It entered into force on 1 December 1999 in respect of the States that had ratified it. Latvia signed the Convention on Human Rights and Biomedicine on 4 April 1997, ratified it on 25 February 2010, and it entered into force in respect of Latvia on 1 June 2010. The Convention on Human Rights and Biomedicine does not concern organ and tissue removal from deceased persons. It concerns organ and tissue removal from living donors for transplantation purposes (Articles 19, 20).", "29. In relation to organ and tissue removal from deceased persons, an Additional Protocol on Transplantation of Organs and Tissues of Human Origin was adopted (Council of Europe Treaty Series no. 186). On 1 May 2006 it entered into force in respect of the States that had ratified it. Latvia has neither signed nor ratified this Protocol.", "30. The relevant Articles of the Additional Protocol read:", "Article 1 – Object", "“Parties to this Protocol shall protect the dignity and identity of everyone and guarantee, without discrimination, respect for his or her integrity and other rights and fundamental freedoms with regard to transplantation of organs and tissues of human origin.”", "Article 16 – Certification of death", "“Organs or tissues shall not be removed from the body of a deceased person unless that person has been certified dead in accordance with the law.", "The doctors certifying the death of a person shall not be the same doctors who participate directly in removal of organs or tissues from the deceased person, or subsequent transplantation procedures, or having responsibilities for the care of potential organ or tissue recipients.”", "Article 17 – Consent and authorisation", "“Organs or tissues shall not be removed from the body of a deceased person unless consent or authorisation required by law has been obtained.", "The removal shall not be carried out if the deceased person had objected to it.”", "31. In May 2002 the Secretary General of the Council of Europe sent a questionnaire to the Council of Europe member States concerning aspects of law and practice in relation to transplantation. [1] The Latvian Government replied in the affirmative to the question of whether removal from a living donor required authorisation and referred to Articles 19 and 20 of the Convention on Human Rights and Biomedicine and section 13 of the Law on Protection of the Body of a Deceased Person and Use of Human Organs and Tissue. They noted that written consent was required. In their response to the question “What kind of relationships should exist between the living donor of an organ and the recipient?” they referred to Articles 19 and 20 of the Convention on Human Rights and Biomedicine. In their response to the question “What sanctions are provided for [organ-trafficking] offenders, in particular, for intermediaries and health professionals?” the Latvian Government referred to section 139 of the Criminal Law (see paragraph 44 below).", "B. The European Union documents", "32. On 21 July 1998 the European Group on Ethics in Science and New Technologies (EGE) [2] to the European Commission issued Opinion no. 11 “On Ethical aspects of human tissue banking”. Its relevant parts read:", "“2.3 Information and consent", "The procurement of human tissues requires, as a principle, the prior, informed and free consent of the person concerned. This does not apply in the case of tissue procurement ordered by a judge in the context of judicial, in particular criminal, proceedings.", "While consent is a fundamental ethical principle in Europe, the procedures involved and forms of such consent (oral or in writing, before a witness or not, explicit or presumed, etc.) are a matter for national legislation based on the legal traditions of each country.", "...", "2.3.2 Deceased donors", "Consent of a donor for retrieval of tissues after death may take different forms depending on the national systems (“explicit” or “presumed” consent). However, no retrieval of tissues may take place, with the exception of judicial proceedings, if the party concerned formally objected while alive. Furthermore, if there has been no expression of will and the applicable system is that of “presumed” consent, doctors must ensure as far as possible that relatives or next of kin have the opportunity to express the deceased person ’ s wishes, and must take these into account. ”", "33. Directive 2010/45/EU of the European Parliament and of the Council of 7 July 2010 on standards of quality and safety of human organs intended for transplantation provides :", "[Preamble]", "“(21) Several models of consent to donation coexist in the Union, including opting-in systems in which consent to organ donation has to be explicitly obtained, and opting-out systems in which donation can take place unless there is evidence of any objection to donation. In order to enable individuals to express their wishes in this regard, some Member States have developed specific registries where citizens record them. This Directive is without prejudice to the broad diversity of the systems of consent already in place in the Member States. In addition, by means of its Action plan on Organ Donation and Transplantation the Commission aims to increase public awareness of organ donation and in particular to develop mechanisms to facilitate the identification of organ donors across Europe. ” ...", "CHAPTER IIIDONOR AND RECIPIENT PROTECTION AND DONOR SELECTION AND EVALUATIONArticle 13 - Principles governing organ donation", "“ 1. Member States shall ensure that donations of organs from deceased and living donors are voluntary and unpaid.", "2. The principle of non-payment shall not prevent living donors from receiving compensation, provided it is strictly limited to making good the expenses and loss of income related to the donation. Member States shall define the conditions under which such compensation may be granted, while avoiding there being any financial incentives or benefit for a potential donor.", "3. Member States shall prohibit advertising the need for, or availability of, organs where such advertising is with a view to offering or seeking financial gain or comparable advantage.", "4. Member States shall ensure that the procurement of organs is carried out on a non-profit basis. ”", "Article 14 - Consent requirements", "“ The procurement of organs shall be carried out only after all requirements relating to consent, authorisation or absence of any objection in force in the Member State concerned have been met. ”", "C. Domestic law", "1. Law on Protection of the Body of a Deceased Person and Use of Human Organs and Tissues", "34. The Law on Protection of the Body of a Deceased Person and Use of Human Organs and Tissue ( likums “ Par miruša cilvēka ķermeņa aizsardzību un cilvēka audu un orgānu izmantošanu medicīnā ” – “the Law”), as in force at the relevant time (with amendments effective as of 1 January 2002), provides in section 2 that every living person with legal capacity is entitled to consent or object, in writing, to the use of his or her body after death. The wish expressed, unless it is contrary to the law, is binding.", "35. Section 3 provides that a person must apply to the Office of Citizenship and Migration Affairs, in accordance with a procedure prescribed by regulations issued by the Cabinet of Ministers, to exercise the right to consent or object to the use of his or her body after death. Only such refusal or consent as is recorded in the Population Register has legal effect. The procedure which, in accordance with the Law, the State institutions have to follow to request and receive this information from the Population Register had not been adopted by the Cabinet of Ministers at the time the applicant ’ s son went into a coma. It was adopted on 11 June 2002 and entered into force on 15 June 2002 in the form of amendments to regulation of the Cabinet of Ministers no. 89 (1999).", "36. Pursuant to section 4, which is entitled “The rights of the closest relatives”, the organs and tissues of a deceased person may not be used against his or her wishes as expressed during his or her lifetime. In the absence of express wishes, they may be used if none of the closest relatives (children, parents, siblings or spouse) objects. Transplantation may be carried out after the biological or brain death of the potential donor (section 10).", "37. More specifically, section 11 of the Law provides that organs and tissue from a deceased donor may be removed for transplantation purposes if that person has not objected to such removal during his or her lifetime and if the closest relatives have not prohibited it.", "38. By virtue of a transitional provision of the Law, a stamp in a person ’ s passport added before 31 December 2001 denoting objection or consent to the use of his or her body after death has legal effect until a new passport is issued or an application to the Office of Citizenship and Migration Affairs is submitted.", "39. Section 17 provides that the State is responsible for protecting the body of a deceased person and for using organs or tissues for medical purposes. At the material time this function was entrusted to the Ministry of Welfare (as of 30 June 2004 – the Ministry of Health). No organisation or authority can carry out the removal of organs or tissues without an authorisation issued by the Ministry (as of 30 June 2004 – the Minister).", "40. Section 18 prohibits the selection, transportation and use of the removed organs and tissues for commercial purposes. It also provides that the removal of organs and tissues from any living or deceased person can only be carried out with strict respect for that person ’ s expressed consent or objection.", "41. On 2 June 2004 amendments to sections 4 and 11 of the Law were passed in the Parliament, effective as of 30 June 2004. From then on section 4 provides that if there is no information recorded in the Population Register about a deceased person ’ s refusal or consent to the use of his or her body, organs or tissue after death, the closest relatives have the right to inform the medical institution in writing about the wishes of the deceased person expressed during his or her lifetime. Section 11 provides that the organs and body tissue of a deceased person may be removed for transplantation purposes if there is no information recorded in the Population Register about the deceased person ’ s refusal or consent to the use of his or her organs or body tissue after death and if the closest relatives of the deceased have not, before the start of the transplantation, informed the medical institution in writing about any objection by the deceased person to the use of his or her organs and body tissue after death expressed during his or her lifetime. It is forbidden to remove organs and body tissue from a dead child for transplantation purposes unless one of his or her parents or his or her legal guardian has consented to it in writing.", "2. Regulation of the Cabinet of Ministers no. 431 (1996)", "42. This regulation ( Noteikumi par miruša cilvēka audu un orgānu uzkrāšanas un izmantošanas kārtību medicīnā ) provides that removal of organs may be carried out after the biological or brain death of a person if his or her passport and medical record contain a stamp signifying consent to such removal (paragraph 3). In the absence of such a stamp, the provisions of the Law (see above) are to be followed.", "43. If a potential donor arrives at the hospital, the coordinator of the transplantation centre must be contacted (paragraph 11). Kidney removal must be carried out by two transplant doctors, the coordinator and one or two nurses from the transplantation centre (paragraph 12).", "3. Criminal law provisions", "44. Section 139 of the Criminal Law provides that unlawful removal of organs or tissues from a living or deceased human being in order to use them for medical purposes is a criminal offence if carried out by a medical practitioner.", "45. Relevant provisions pertaining to the rights of civil parties in criminal proceedings under the former Code of Criminal Procedure ( effective until 1 October 2005) are described in Liģeres v. Latvia ( no. 17/02, § § 39 - 41, 28 June 2011 ) and Pundurs v. Latvia ( (dec.), no. 43372/02, §§ 12- 1 7, 20 September 2011).", "4. Civil law provisions", "46. All relevant provisions pertaining to compensation for pecuniary and non-pecuniary damage under the Civil Law (before and after the amendments that were effective from 1 March 2006) are quoted in full in Zavoloka v. Latvia (no. 58447/00, §§ 17- 1 9, 7 July 2009). Sections 1635 and 1779 are further described in Holodenko v. Latvia ( no. 17215/07, § 45, 2 July 2013).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "47. The applicant alleged a violation of Article 8 of the Convention in that the removal of her son ’ s organs had been carried out without his prior consent or that of the applicant herself. Article 8 reads:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "48. The Government denied that there had been a violation of that Article.", "A. Scope of the applicant ’ s complaint", "1. The parties ’ submissions", "49. The Government raised an argument pertaining to the scope of the applicant ’ s complaint. They submitted that on the application form the applicant had complained of a violation of her son ’ s rights under Article 8 on account of the removal of his organs without his or the applicant ’ s prior consent. It was their contention that nothing in the case-file demonstrated that the applicant had ever complained of a violation of her own rights under the Convention.", "50. The Government also objected that the applicant could not claim to be a victim of the alleged violation of Mr Petrovs ’ rights under the Convention.", "51. The applicant disagreed and maintained that she had raised the complaint on her own behalf. She had indicated her name in “the applicant” field in the application form and it was evident that, in the absence of any specific indication to the contrary, she had complained of a violation of her rights under the Convention. She also relied on quotes from her application form to further substantiate this. The applicant indicated that her submissions had been as follows : “I consider Article 8 of the Convention to be violated” and that she as “the mother of Oļegs Petrovs was refused rights, granted by law, to object to removal of organs”.", "52. The applicant considered herself to be a victim.", "2. The Court ’ s assessment", "53. Having examined the case material in its possession, the Court observes the following. The application form, sent to the Court on 18 January 2005, contains several indications that it was lodged in the name of the applicant, Ms Svetlana Petrova. The application form contains the necessary information about the applicant herself – full name and contact details. The application form was signed by the applicant ’ s sister, Ms Ļuda Belruse, who had received an authorisation from the applicant to act on her behalf. The applicant in her observations further specified that her intention had been to lodge an application on her own behalf. She quoted her submissions from the application form and confirmed that the application concerned her own rights.", "54. The Court notes at the outset that an application cannot in principle be brought in the name of a deceased person, because he or she cannot be considered to be a “ person ” (“ personne physique ” in French) for the purposes of Article 34 of the Convention ( see Dvořáček and Dvořáčková v. Slovakia, no. 30754/04, § 41, 28 July 2009, and Aizpurua Ortiz and Others v. Spain, no. 42430/05, § 30, 2 February 2010).", "55. The Court reiterates the need to distinguish cases in which the applicant died in the course of the proceedings from cases where the application was lodged with the Court by the applicant ’ s heirs after the death of the victim (see Fairfield v. the United Kingdom (dec.), no. 24790/04, ECHR 2005 ‑ VI; Biç and Others v. Turkey, no. 55955/00, § 20, 2 February 2006; and, more recently, Ergezen v. Turkey, no. 73359/10, § 28, 8 April 2014 ( not yet final ) and the case-law cited therein). In cases where the applicant died before an application was lodged with the Court, the Court has emphasised that Article 8 rights are eminently personal and non-transferable (see Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR 2000 ‑ XI ). Therefore, in principle Article 8 cannot be relied on by relatives or next-of-kin unless they are personally affected by the interference at issue.", "56. In the present case the rights of the deceased, Mr Petrovs, and his mother, the applicant in the present case, are closely related. The domestic law at the material time explicitly provided that the right to express one ’ s wishes in relation to removal of organs or body tissue after death pertained not only to the person concerned but also to his or her closest relatives, including parents (see paragraphs 36 and 37 above). The Court considers, however, that there is no need to examine the issue of transferability of rights in more detail in the present case since the applicant complains of a violation of her own rights in connection with the removal of her son ’ s organs after his death. Contrary to what has been argued by the Government, the Court finds that on the application form the applicant expressly indicated her wish to complain in her name and she maintained that position in her observations on the admissibility and merits of the case.", "57. The Government ’ s objection relating to the scope of the applicant ’ s complaint is therefore dismissed.", "58. Having found that the applicant ’ s complaint relates to her rights under the Convention and not to the rights of her deceased son, the Court does not consider it necessary to address separately the Government ’ s argument pertaining to the applicant ’ s victim status.", "B. Admissibility", "1. The parties ’ submissions", "59. First of all, the Government raised a preliminary objection concerning the exhaustion of domestic remedies, relying on the Court ’ s decision in Grišankova and Grišankovs v. Latvia ( (dec.), no. 36117/02, ECHR-2003 II (extracts)). They considered that the applicant should have lodged a complaint with the Constitutional Court since the removal of her son ’ s organs had been carried out in accordance with the procedure laid down in sections 4 and 11 of the Law. She should have raised the issue of the compliance of these legal provisions with the Latvian Constitution.", "60. Secondly, the Government argued that the applicant had not submitted a complaint to the MADEKKI. The Government emphasised that at the material time the MADEKKI had been the competent body to examine the applicant ’ s complaints. Moreover, the applicant had not appealed against the MADEKKI ’ s report, which it had submitted to the Security Police and to the prosecutor ’ s office. It was the Government ’ s submission that the MADEKKI ’ s examination of the compliance of the organ removal procedure with domestic law was a necessary precondition for instituting any civil or criminal proceedings against those responsible. They did not provide any further information in this regard.", "61. Thirdly, the Government submitted that the applicant could rely on section 1635 of the Civil Law ( as effective from 1 March 2006) and claim compensation for pecuniary and non-pecuniary loss in the civil courts. The possibility of using this remedy was still open to the applicant. Citing the Court ’ s decision in Andrasik and Others v. Slovakia (no. 57984/00, 22 October 2002), the Government argued that the proposed remedy had become available shortly after the applicant had submitted her application to the Court on 18 January 2005. The Government provided some examples of domestic case-law pertaining to the application of section 1635 in practice. They referred to the proceedings in case PAC-714 (instituted on 7 February 2005), where a claimant had sought compensation for non-pecuniary damage from a hospital where she had given birth and where tubal ligation ( surgical contraception ) had been performed without her consent (see L.H. v. Latvia, no. 52019/07, § 8, 29 April 2014 ( not yet final )). On 1 December 2006 that claim had been upheld and the claimant had been awarded compensation for physical injury and moral suffering in the amount of 10,000 Latvian lati (LVL) in respect of the unlawful sterilisation on the basis of section 2349 of the Civil Law. This judgment had taken effect on 10 February 2007. The Government also referred to one of the “Talsi tragedy” cases (instituted on 15 September 2006), where on 16 March 2010 the appellate court had awarded compensation payable by the State in the amount of LVL 20,000 in connection with the incident of 28 June 1997 in Talsi where, among other children, the claimant ’ s daughter had died. The final decision in this case was adopted on 28 September 2011. The Government did not provide copies of the decisions in the latter case.", "62. Lastly, proceeding on the assumption that the alleged violation stemmed from the actual wording of the relevant provisions of the domestic law, the Government argued that the applicant had failed to comply with the six-month time-limit since, in their view, complaints to the Security Police or the prosecutor ’ s office were not effective remedies. Even if they had been, the outcome of proceedings before these institutions would have been largely dependent on the examination carried out by the MADEKKI, the report of which institution the applicant had not contested. The Government insisted that the applicant had found out about the organ removal on 11 February 2003 and that the MADEKKI report had been adopted on 7 May 2003. They concluded that the applicant had failed to lodge an application with the Court within six months from either of these dates.", "63. The applicant disagreed. In response to the first remedy invoked by the Government – recourse to the Constitutional Court – the applicant pointed out that the Constitutional Court ’ s competence did not include examining whether a specific legal provision had been correctly interpreted. The case of Grišankovs and Grišankova concerned a legal provision which the applicants in that case considered to be contrary to the Convention. The applicant in the present case referred to section 11 and pointed out that the system of “presumed consent” in Latvia had been limited by the wishes expressed by the relatives. She considered that the issue in the present case was not a legal provision itself but rather the fact that persons responsible for the removal of the organs had carried out the procedure without trying to establish the wishes of the closest relatives. Therefore, Grišankovs and Grišankova did not apply.", "64. In response to the second remedy invoked by the Government, namely a complaint to the MADEKKI, the applicant agreed that she had not personally submitted a complaint to that authority. However, in response to her complaint to the Security Police and the prosecutor ’ s office, both had requested the report. Even if the applicant had personally submitted such a complaint, the result would have been the same. According to the applicant, she could not have appealed against the MADEKKI report since it was not an administrative act but rather an expert report drawn up in the course of criminal proceedings, against which no appeal lay. In any event, the MADEKKI report in itself had been neither sufficient to provide redress for the applicant nor legally binding. The applicant referred to the case of Manoussakis and Others v. Greece ( 26 September 1996, § 33, Reports of Judgments and Decisions 1996 ‑ IV ) in support.", "65. In response to the third remedy invoked by the Government, the applicant pointed out that section 139 of the Criminal Law provided for criminal responsibility expressis verbis for the unlawful removal of organs or body tissue. She pointed out that, making use of her right to choose the remedy, she had sought to find out who was responsible and bore criminal responsibility for the removal. The applicant had done everything that could have been expected of her within the criminal proceedings; she could not have been required to start civil proceedings on the same matter. She relied on the cases of Assenov and Others v. Bulgaria ( 28 October 1998, § 86, Reports 1998 ‑ VIII ) and Fredriksen and Others v. Denmark ( no. 12719/87, Commission decision of 3 May 1988, DR 56, p. 237) in this regard.", "66. Lastly, as regards compliance with the six-month time-limit, the applicant did not agree that criminal proceedings were not an effective remedy. She reiterated that the issue in the present case was not the compatibility of a legal provision with the Constitution but rather the fact that persons responsible for the removal had carried it out without allowing the applicant to express her wishes. The MADEKKI report had merely contained an expert ’ s opinion obtained in the course of criminal proceedings on some of the many questions arising in those proceedings; it had not been a final decision.", "2. The Court ’ s assessment", "67. In so far as the Government refer to a constitutional complaint as a remedy relevant in the applicant ’ s circumstances, the Court considers that such a complaint was not an effective means of protecting the applicant ’ s rights under Article 8 of the Convention for the following reasons.", "68. The Court has already examined the scope of the Constitutional Court ’ s review in Latvia (see Grišankova and Grišankovs, cited above; Liepājnieks v. Latvia (dec.), no. 37586/06, §§ 73- 7 6, 2 November 2010; Savičs v. Latvia, no. 17892/03, §§ 113 - 11 7, 27 November 2012; Mihailovs v. Latvia, no. 35939/10, §§ 157- 15 8, 22 January 2013; Nagla v. Latvia, no. 73469/10, § 48, 16 July 2013; and Latvijas jauno zemnieku apvienība v. Latvia (dec.), no. 14610/05, §§ 44-45, 17 December 2013 ).", "69. The Court has noted that the Constitutional Court examined, inter alia, individual complaints challenging the constitutionality of a legal provision or its compliance with a provision having superior legal force. An individual constitutional complaint can be lodged against a legal provision only when an individual considers that the provision in question infringes his or her fundamental rights as enshrined in the Constitution. The procedure of an individual constitutional complaint cannot therefore serve as an effective remedy if the alleged violation resulted only from an erroneous application or interpretation of a legal provision which, in its content, is not unconstitutional (see Latvijas jauno zemnieku apvienība, cited above, §§ 44- 4 5 ).", "70. In the present case, the Court considers that the applicant ’ s complaint concerning the organ removal does not relate to the compatibility of one legal provision with another legal provision having superior force. The Government argued that the organ removal had taken place in accordance with the procedure laid down in law. The applicant, for her part, did not contest the constitutionality of this procedure. Instead, she argued that her wishes as the closest relative had not been taken into account. The Court finds that the applicant ’ s complaint relates to the application and interpretation of domestic law, in the light particularly of the absence of relevant administrative regulation; it cannot be said that any issues of compatibility arise. In such circumstances the Court considers that the applicant need not have exhausted the proposed remedy.", "71. As regards recourse to the MADEKKI, the Court observes that its report was produced for the purposes of the criminal investigation into the applicant ’ s complaints (contrast with Žarskis v. Latvia (dec.), no. 33695/03, § 23, 17 March 2009; Ruža v. Latvia (dec.), no. 33798/05, § 19, 11 May 2010; Buks v. Latvia (dec.), no. 18605/03, § 11, 4 September 2012; and Fedosejevs v. Latvia (dec.), no. 37546/06, § 17, 19 November 2013 ). The fact that the applicant herself had not complained to the MADEKKI is not relevant in the circumstances of the present case, in relation to which that institution had prepared a report for the purposes of criminal proceedings. The Court does not see how the applicant could have contested the MADEKKI ’ s findings in this context, given that they merely relayed the experts ’ opinion as to whether or not the medical practitioners had complied with the law in carrying out the removal of organs. In any event, the Court notes that it is normally the task of the investigating and prosecuting authorities to establish whether any crime has been committed and that, in doing so, these authorities would take into account all evidence, including any specialists ’ reports. Since the applicant had complained about all the decisions adopted by the investigating and prosecuting authorities, the Court cannot hold it against her that she did not lodge a separate complaint with the MADEKKI.", "72. As regards the possibility of lodging a civil claim for damages, in Calvelli and Ciglio v. Italy ( [GC], no. 32967/96, § 51, ECHR 2002 ‑ I ), the Court ruled:", "“ In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged. ”", "73. The Court has further stated that this principle applies when the infringement of the right to life or personal integrity is not caused intentionally (see Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 ‑ VIII, and Öneryıldız v. Turkey [GC], no. 48939/99, § 92, ECHR 2004 ‑ XII ).", "74. However, the Court has also found that in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose the remedy which addresses his or her essential grievance (see Jasinskis v. Latvia, no. 45744/08, § 50, 21 December 2010 ). The Court observes that the applicant in the present case availed herself of the criminal avenue of redress in accordance with the applicable provisions of domestic law. The remedy pursued by her could have given rise to a finding that the removal of her son ’ s organs had been carried out contrary to the domestic procedure and that her rights as the closest relative had been breached. It could eventually have led to an award of compensation, given that the Latvian legal system recognises victims ’ rights to lodge civil claims in criminal proceedings and to request compensation for damage suffered as a result of a crime (see paragraph 45 above). In such circumstances, there is nothing to suggest that the applicant could legitimately have expected that the criminal-law remedy would not be an effective one in her case.", "75. The Court considers that the applicant was not required to submit to the civil courts a separate, additional request for compensation, which could also have given rise to a finding that the removal of her son ’ s organs had been carried out contrary to the domestic procedure and that her rights as the closest relative had been breached ( see also Sergiyenko v. Ukraine, no. 47690/07, § § 40-43, 19 April 2012; Arskaya v. Ukraine, no. 45076/05, § § 75-81, 5 December 2013; and Valeriy Fuklev v. Ukraine, no. 6318/03, § § 77-83, 1 6 January 2014, where the applicants were not required to lodge separate civil claims for the alleged medical malpractice ).", "76. Finally, bearing in mind the above -mentioned considerations in connection with the recourse to the Constitutional Court and the criminal-law remedy, the Court does not consider that the complaint was lodged out of time. Contrary to the Government ’ s submission, the last domestic decision for the purposes of calculating the six-month period was adopted by the Prosecutor General on 23 August 2004.", "77. Taking the foregoing into account, the Court considers that the applicant ’ s complaint under Article 8 of the Convention cannot be declared inadmissible for non-exhaustion of domestic remedies or for non-compliance with the six-month time-limit. Accordingly, the Government ’ s objections in this regard must be dismissed. Furthermore, the Court reiterates that the concepts of private and family life are broad terms not susceptible to exhaustive definition (see Hadri-Vionnet v. Switzerland, no. 55525/00, § 51, 14 February 2008). In the case of Pannullo and Forte v. France (no. 37794/97, § 36, ECHR 2001 - X), the Court considered the excessive delay by the French authorities in returning the body of their child following an autopsy to be interference with the private and family life of the applicants. It has also considered that the refusal of the investigative authorities to return the bodies of deceased persons to their relatives constituted an interference with the applicants ’ private and family life (see Sabanchiyeva and Others v. Russia, no. 38450/05, § 123, ECHR 2013 (extracts) and Maskhadova and Others v. Russia, no. 18071/05, § 212, 6 June 2013). The Court notes that there is no dispute between the parties that the applicant ’ s right – established under domestic law – to express consent or refusal in relation to the removal of her son ’ s organs (see paragraph 87 below) comes within the scope of Article 8 of the Convention. The Government did not contest this. The Court sees no reason to hold otherwise and thus considers that this Article is applicable in the circumstances of the case. The Court notes that this complaint is not inadmissible on any other grounds. It must therefore be declared admissible.", "C. Merits", "1. The parties ’ submissions", "(a) The applicant", "78. The applicant considered that the removal of her son ’ s organs without her consent had constituted an interference with her private and family life. The applicant emphasised that she had been deprived of her rights, granted by domestic law, to object to her son ’ s organ removal. She pointed out that analysis of the organs later removed from his body had been carried out and blood tests had been performed while he was still alive in order to determine compatibility for transplantation purposes with the potential recipient ’ s body.", "79. Relying on X and Y v. the Netherlands, she argued that although the object of Article 8 was essentially that of protecting the individual against arbitrary interference by public authorities, it did not merely compel the State to abstain from such interference. In addition to this primarily negative undertaking, there were positive obligations inherent in an effective respect for private or family life; these obligations involved the adoption of measures designed to secure respect for private or family life (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91). She further referred to the case of Ciubotaru v. Moldova, confirming that the positive obligations included certain positive procedural safeguards, for example, an effective procedural framework whereby applicants could assert their rights under Article 8 under conditions of fairness, not least in relation to questions of proof and evidence (see Ciubotaru v. Moldova, no. 27138/04, § 51, 27 April 2010).", "80. The applicant further reasoned that the interference with her rights had been neither in accordance with law nor necessary within the meaning of Article 8 § 2 of the Convention. As concerns the first of these considerations, the applicant ’ s view was that by granting the closest relatives the right to express binding wishes in relation to organ removal, the domestic law had struck the right balance between private and family life and the rights of others. In the applicant ’ s case, the domestic authorities had not fulfilled their duty to provide conditions for these wishes to be expressed. For the interference to be in “accordance with the law”, the law had to be clear and had to provide the possibility of exercising the protected rights. As regards the second consideration, the applicant argued that the interference had not been proportionate. There had to be some mechanism to establish the wishes of a dying person through his or her closest relatives if that person had not made such wishes known during his or her lifetime. The existence of such a mechanism would be proportionate, imposing less of a limit on the right to private and family life and not hindering society ’ s legitimate interests, since the circle of close relatives who could object to organ removal would remain very limited. In such cases, the lack of an answer from the relatives – after a specified period and after contacting them and requesting them to express their wishes – could be presumed to constitute consent. The applicant concluded that there had been no pressing social need which could have exempted the authorities from their duty of seeking to establish the wishes of the closest relatives concerning organ removal.", "(b) The Government", "81. The Government argued that the “presumed consent system” permitted interference with an individual ’ s right to private life under Article 8 of the Convention. They argued that the organ removal had been carried out in accordance with domestic law. The Law had implied the “presumed consent system” that had served the aim of protecting the heath and the rights of others. The Government pointed out that that the “presumed consent system” was not innovative and that Latvia was not even the only country employing this system; it was also instituted in eleven other States.", "82. At the same time, the Government acknowledged that the issue of whether or not presumed consent was sufficient or explicit consent was required for organ removal for transplantation purposes had been neither resolved nor unanimously applied among the Contracting States themselves. They contended that the subject of debate was rooted in national legal traditions and there was no European consensus on the rigid application of either system. The Government argued that the legislator ’ s action in establishing a “presumed consent system” fully complied with the generally accepted rule that the removal of organs from a deceased person could not take place against the expressed or presumed wishes of the person concerned. They submitted that the Member States could decide if and under what conditions – for example vis à vis the wishes of the deceased ’ s next-of-kin – the removal could be carried out in the absence of the expressed wishes of the deceased. In this regard, the Government referred to Article 10 § 1 of Resolution (78) 29 (see paragraph 27 above). The Government reiterated that domestic law at the material time provided for the possibility to register a person ’ s wishes in relation to the removal of his or her organs.", "83. Given the wide margin of appreciation in this area, the Government emphasised that the “presumed consent” laid down in domestic law was a process which required a person or his or her closest relative to actively express their objection to certain procedures on that person ’ s body. The Government argued that the relevant domestic law provision set out the procedure in accordance with which a person who objected to the removal of his or her organs or another person ’ s organs (the applicant ’ s son ’ s organs in the present case) was to take positive steps to intervene, thereby effectively vetoing such removal.", "84. The Government disagreed with the applicant, arguing that under the “presumed consent system” the applicant had not in any way been deprived of her right to object to the removal of her son ’ s organs. The Government ’ s submission was that the applicant herself had failed to take any steps to establish her son ’ s whereabouts, obtain information about his medical condition, or make known in good time any wishes in relation to possible organ removal. They pointed out that when a deceased person ’ s closest relatives were not present at the hospital, national laws did not impose any obligation on a doctor or on the medical institution itself to make specific inquires in order to ascertain if there was any objection from those persons as regards possible organ removal. In this connection they referred to a domestic decision (in case no. 1840000303) where a city court had confirmed that section 4 of the Law provided for the right of the closest relatives to object to removal of the deceased person ’ s organs, but did not impose any obligation on the medical expert to explain these rights to the relatives. In addition, they pointed to the opinions of legal and medical scholars who considered that complicated ethical issues arose due to the inevitable conflict between the devastating emotional impact of the death on the family and the speed with which a decision on organ transplantation had to be made.", "2. The Court ’ s assessment", "(a) General principles", "85. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. Any interference under the first paragraph of Article 8 must be justified in terms of the second paragraph, namely as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. The notion of necessity implies that the interference correlates with a pressing social need and, in particular, that it is proportionate to one of the legitimate aims pursued by the authorities (see A, B and C v. Ireland [GC], no. 25579/05, §§ 218-241, 16 December 2010).", "86. The Court refers to the interpretation given to the phrase “in accordance with the law” in its case-law (as summarised in S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95-96, ECHR 2008). Of particular relevance in the present case is the requirement for the impugned measure to have some basis in domestic law, which should be compatible with the rule of law, which, in turn, means that the domestic law must be formulated with sufficient precision and must afford adequate legal protection against arbitrariness. Accordingly the domestic law must indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise (see, most recently, L.H., cited above, § 47 ).", "(b) Application in the present case", "87. As to the alleged interference, turning to the circumstances of the present case, the Court notes that following a car accident the applicant ’ s son sustained life-threatening injuries of which, after an attempt to save his life had been made, he had died. Immediately after his death, his kidneys and spleen had been removed for organ transplantation purposes. The applicant, who was one of his closest relatives, was not informed of this and could not therefore exercise certain rights allegedly established under domestic law – to express consent or refusal in relation to the removal of her son ’ s organs.", "88. The Court further notes that it has not been contested that both hospitals involved – Riga ’ s First Hospital and Pauls Stradiņš Clinical University Hospital – were public institutions and that the acts and omissions of its medical staff were capable of engaging the responsibility of the respondent State under the Convention (see Glass v. the United Kingdom, no. 61827/00, § 71, ECHR 2004 ‑ II ).", "89. The Court considers that the above-mentioned circumstances are sufficient for it to conclude that there has been an interference with the applicant ’ s right to respect for her private life under Article 8 of the Convention.", "90. As to whether the interference was “ in accordance with the law ”, the Court observes that Latvian law at the material time explicitly provided for the right on the part of not only the person concerned but also his or her closest relatives, including parents, to express their wishes in relation to removal of organs after that person ’ s death (see paragraphs 36 and 37 above). The parties did not contest this. However, their views differed in so far as the exercise of this right was concerned. The applicant ’ s view was that the domestic authorities had not fulfilled their duty to provide conditions whereby her wishes in relation to the removal of the applicant ’ s son ’ s organs for transplantation purposes could be expressed. According to the Government, the “presumed consent system ” in Latvia was an active process and the persons involved were expected to take positive steps if they wished to veto any organ removal. It is the Court ’ s view that these issues appertain to the quality of domestic law, in particular, whether the domestic legislation was formulated with sufficient precision or afforded adequate legal protection against arbitrariness in the absence of the relevant administrative regulation.", "91. In this context, the Court observes that the principal disagreement between the parties is whether or not the law – which in principle afforded the closest relatives the right to express wishes in relation to imminent organ removal – was sufficiently clear as regards the implementation of this right. The applicant argued that there was no mechanism permitting her to exercise her right, but the Government considered that the mechanism was in place and that it was up to the closest relatives to take action if they wished to prevent any organ removal.", "92. The Court must point out, however, that where national legislation is in issue, it is not the Court ’ s task to review the relevant legislation in the abstract. Instead, it must confine itself, as far as possible, to examining the issues raised by the case before it ( see Taxquet v. Belgium [GC], no. 926/05, § 83 in fine, ECHR 2010 ).", "93. The Court is mindful of the fact that for almost three days, from 26 to 29 May 2002, the applicant ’ s son ’ s medical condition was very serious and that he remained unconscious until his death was recorded at 1.20 a.m. on the latter date. Against this background, while clearly there was a medical emergency given his critical condition, it cannot be said that it had been practically impossible to contact his closest relatives or at least to make an attempt to contact them, informing them of his condition and making enquiries about the possible organ transplantation. Indeed, the applicant submits that she was in contact with the doctors at the Hospital; the Government deny this for the simple reason that no contact details were recorded on her son ’ s medical card. Be that as it may, the starting point of the Court ’ s analysis is that, as established by the domestic authorities, the applicant was not informed about the possible removal of her son ’ s organs for transplantation purposes (see paragraphs 15, 18, 20 and 22 above).", "94. As to whether the domestic law was formulated with sufficient precision, the Court notes that the domestic authorities, most notably the Security Police and the prosecutor ’ s office, considered that the failure to inform the applicant about the possible removal of her son ’ s organs did not contravene domestic law (see paragraphs 16, 20, 24 -26 above). However, the Minister for Health was of the opinion that the applicant should have been informed; it has been mentioned that as a result of a proposal by a working group established in the Ministry, certain amendments to the Law had been proposed to improve clarity (see paragraph 23 above). These amendments were later adopted by Parliament with effect from 30 June 2004 (see paragraph 41 above). Such disagreement and the subsequent changes in the legislation indicate a lack of reasonable clarity as to the nature of the discretion conferred on the public authorities under domestic law at the time. While Latvian law set out the legal framework allowing the closest relatives to express their wishes in relation to organ removal for transplantation purposes, it did not define with sufficient clarity the scope of the corresponding obligation or the discretion conferred on medical practitioners or other authorities in this respect.", "95. At the time when the applicant ’ s son was still alive, between 26 and 29 May 2002, no procedure was laid down in law for State institutions to follow in order to establish that person ’ s own views on organ transplantation (see paragraph 35 above). Following the death of the applicant ’ s son, as explained by the prosecution, only sections 4 and 11 of the Law were applicable (see paragraphs 25 -26 above). The Government referred to domestic case-law, confirming that there was no legal duty to inform the closest relatives about imminent organ removal, and argued that the Law implied that action was needed to be taken by the relatives. The Court reiterates that the principle of legality requires States not only to respect and apply, in a foreseeable and consistent manner, the laws they have enacted, but also, as a necessary part, to ensure the legal and practical conditions for their implementation (see mutatis mutandis Broniowski v. Poland [GC], no. 31443/96, §§ 147 and 184, ECHR 2004 V). In the present case, it remains unclear how the “presumed consent system”, as established under the Latvian law, operates in practice in the circumstances in which the applicant found herself, whereby she had certain rights as the closest relative but was not informed – let alone provided with any explanation – as to how and when these rights might have to be exercised.", "96. As to whether the domestic law afforded adequate legal protection against arbitrariness, the Court observes that the Security Police admitted that the co-ordinator of the transplantation centre had been responsible for informing relatives of issues pertaining to organ transplantation (see paragraph 20 above), but according to the prosecution there was no obligation laid down in law to obtain their consent (see paragraph 25 above). The prosecution also explained that the relevant provisions prohibited organ removal in cases where a refusal or an objection had been received but not in cases where the wishes of the closest relative had not been established (see paragraph 26 above ). The Government, while arguing that the removal of organs from the deceased person could not take place against the expressed or presumed wishes of the person concerned, nevertheless admitted that it was not necessary for the medical expert to explain the rights of the closest relatives or to make any inquires as to their wishes. The Court notes a considerable uncertainty as to the applicable law in these various positions. As noted by the applicant and uncontested by the Government, several medical examinations were carried out prior to the actual organ transplantation to establish whether the applicant ’ s son ’ s organs were in fact compatible with the potential recipient ’ s body. The amount of time required to carry out such examinations, short as it might have been, could have been sufficient to provide a real opportunity for the applicant to express her wishes in the absence of those of her son. As noted, however, no mechanism was in place for the applicant to express her wishes, which she was entitled to do under domestic law.", "97. In the light of the above -mentioned considerations, the Court cannot find that the applicable Latvian law was formulated with sufficient precision or afforded adequate legal protection against arbitrariness.", "98. The Court accordingly concludes that the interference with the applicant ’ s right to respect for her private life was not in accordance with the law within the meaning of Article 8 § 2 of the Convention. Consequently, there has been a violation of Article 8. Having regard to this conclusion, the Court does not consider it necessary to review compliance with the other requirements of Article 8 § 2 in this case (see, for example, Kopp v. Switzerland, 25 March 1998, § 76, Reports 1998-II, and Heino v. Finland, no. 56720/09, § 49, 15 February 2011).", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "99. The applicant alleged that she had been subjected to inhuman and degrading treatment on account of the fact that the removal of her son ’ s organs had been carried out without his prior consent or that of the applicant herself.", "100. The Government contested that argument.", "101. The Court notes that this complaint is linked to the complaint examined above and must therefore likewise be declared admissible.", "102. Having regard to the finding relating to Article 8 (see paragraphs 9 7 and 9 8 above), the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 3 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "103. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "104. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage suffered because of a violation of Article 8 of the Convention.", "105. The Government considered that the applicant did not sufficiently demonstrate that she had incurred non-pecuniary damage to the extent claimed. The Government considered the amount claimed by the applicant excessive and exorbitant. With reference to the case of Shannon v. Latvia (no. 32214/03, § 84, 24 November 2009), the Government considered that the finding of a violation alone would constitute adequate and sufficient compensation.", "106. Having regard to the nature of the violation found in the present case and deciding on an equitable basis, the Court awards the applicant EUR 1 0, 0 00 in respect of non-pecuniary damage.", "B. Costs and expenses", "107. The applicant also claimed EUR 500 for the costs and expenses incurred before the Court.", "108. The Government did not contest the applicant ’ s claim under this head. They considered it sufficiently substantiated and reasonable.", "109. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 500 covering costs under all heads.", "C. Default interest", "110. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1969 and lives in Sigulda. She is the widow of Mr Egils Elberts ( “ the applicant ’ s husband ” ), a Latvian national who was born in 1961 and who died on 19 May 2001.", "A. Events leading to the applicant knowing that tissue had been removed from her husband ’ s body", "6. On 19 May 2001 the applicant ’ s husband was involved in a car accident in the parish of Allaži. An ambulance transported him to Sigulda Hospital but he died on the way there as a result of his injuries. He was placed in the mortuary at Sigulda Hospital. The applicant ’ s mother-in-law, who worked at Sigulda Hospital and thereby learned about her son ’ s death immediately, stayed with his body at Sigulda Hospital until it was transported to the State Centre for Forensic Medical Examination ( Valsts tiesu medicīnas expertīžu centrs – “ the Forensic Centre ”) in Riga.", "7. At 5 a.m. on 20 May 2001 the body was delivered to the Forensic Centre in order to establish the cause of death. Between 1 p.m. and 3 p.m. an autopsy was carried out and numerous injuries were found to the deceased ’ s head and chest, including several broken ribs and vertebrae. There were bruises on his right shoulder, thigh and knee. A forensic medical expert, N.S., classified the injuries as serious and life-threatening and established a causal link between them and his death.", "8. According to the Government, after the autopsy, N.S. had verified that there was no stamp in Mr Elberts ’ passport denoting his objection to the use of tissue from his body and he had removed a 10 cm by 10 cm piece of dura mater ( the outer layer of the meninges) from Mr Elberts ’ body. According to the applicant, N.S. could not have checked whether or not there was a stamp in Mr Elberts ’ passport because at that time it had been at their home in Sigulda. The applicant submitted that the area of tissue removed was larger than 10 cm by 10 cm and that it was not only dura mater that had been removed.", "9. On 21 May 2001 the prosecutor ’ s office issued a permit to bury the body. According to the applicant, on 21 or 22 May 2001 her sister had arrived at the Forensic Centre with a view to obtaining the certificate showing the cause of death, in relation to which she had signed the Forensic Centre ’ s registration log. On 22 May 2001 her sister submitted that document, together with Mr Elberts ’ passport, to the relevant authority in Sigulda to obtain the death certificate.", "10. According to the Government, on 25 May 2001 the body of Mr Elberts had been handed over to a relative. According to the applicant, his body had been handed over to another person who was merely helping with its transportation prior to the funeral.", "11. On 26 May 2001 the funeral took place in Sigulda. The applicant first saw her deceased husband when his remains were transported back from the Forensic Centre for the funeral. She saw that his legs had been tied together. He was buried that way. The applicant herself was pregnant at the time with their second child.", "12. The applicant was not aware that tissue had been removed from her husband ’ s body until about two years later, when the security police ( Drošības Policija ) informed her that a criminal inquiry had been opened into the illegal removal of organs and tissue, and that tissue had been removed from her husband ’ s body.", "B. Criminal inquiry into the illegal removal of organs and tissue", "13. On 3 March 2003 the security police opened a criminal inquiry into the illegal removal of organs and tissue for supply to a pharmaceutical company based in Germany (“the company”) between 1994 and 2003. The following sequence of events was established.", "14. In January 1994 the predecessor institution of the Forensic Centre concluded an agreement with the company to cooperate for the purpose of scientific research. Under the agreement, various types of tissue were to be removed from deceased persons ‒ selected by the Forensic Centre in accordance with international standards ‒ and sent to the company for processing. The company transformed the tissue received into bio - implants and sent them back to Latvia for transplantation purposes. The Ministry of Welfare agreed to the content of the agreement, reviewing its compliance with domestic law on several occasions. The prosecutor ’ s office issued two opinions on the compatibility of the agreement with domestic law and, in particular, with the Law on the protection of the body of a deceased person and the use of human organs and tissue (“the Law”).", "15. Any qualified member of staff (“expert”) of the Forensic Centre was allowed to carry out the removal of tissue on his or her own initiative. The Head of the Thanatology Department of the Forensic Centre was responsible for their training and the supervision of their work. He was also responsible for sending the tissue to Germany. The experts received remuneration for their work. Initially, the tissue removal was performed at forensic divisions located in Ventspils, Saldus, Kuldīga, Daugavpils and Rēzekne. After 1996, however, tissue removal was carried out only at the Forensic Centre in Riga and the forensic division in Rēzekne.", "16. Under the agreement, experts could remove tissue from deceased persons who had been transported to the Forensic Centre for forensic examination. Each expert was to verify whether the potential donor had objected to the removal of organs or tissue during his or her lifetime by checking his or her passport to make sure that there was no stamp to that effect. If relatives objected to the removal, their wishes were respected, but the experts themselves did not attempt to contact relatives or to establish their wishes. Tissue was to be removed within twenty-four hours of the biological death of a person.", "17. Experts were obliged to comply with domestic law but, according to their own testimonies, not all of them had read the Law. However, the content of it was clear to them as the Head of the Thanatology Department of the Forensic Centre had explained that removal was allowed only if there was no stamp in the passport denoting a refusal for organs or tissue to be removed and if the relatives did not object to the removal.", "18. In the course of the inquiry, the investigators questioned specialists in criminal law and the removal of organs and tissue. It was concluded that, generally speaking, two legal systems exist for regulating the removal of organs and tissue – “informed consent” and “presumed consent”. On the one hand, the Head of the Forensic Centre, the Head of the Thanatology Department of the Forensic Centre and the experts at the Forensic Centre were of the opinion that at the relevant time (that is to say, after the Law ’ s entry into force on 1 January 1993) there had existed a system of “presumed consent” in Latvia. These persons were of the view that the system of presumed consent meant that “ everything which is not forbidden is allowed”. The investigators, on the other hand, were of the opinion that section 2 of the Law gave a clear indication that the Latvian legal system relied more on the concept of “informed consent” and, accordingly, removal was permissible only when it was (expressly) allowed, that is to say when consent had been given either by the donor during his or her lifetime or by the relatives.", "19. More particularly, as regards the removal of tissue from the applicant ’ s husband ’ s body, on 12 May 2003 the expert N.S. was questioned. Subsequently, on 9 October 2003 the applicant was recognised as an injured party ( cietušais ) and she was questioned on the same date.", "20. On 30 November 2005 it was decided to discontinue the criminal inquiry into the activities of the Head of the Forensic Centre, the Head of the Thanatology Department of the Forensic Centre and the Head of the Rēzekne Forensic Division in respect of the removal of tissue. The above considerations were noted down in the decision ( lēmums par kriminālprocesa izbeigšanu ) and differences concerning the possible interpretations of domestic law were resolved in favour of the accused. Moreover, the 2004 amendments to the Law were to be interpreted to mean that there was a system of “presumed consent” in Latvia. It was concluded that sections 2 to 4 and 11 of the Law had not been violated and that no elements of a crime as set out in section 139 of the Criminal Law had been established.", "21. On 20 December 2005 and 6 January 2006 prosecutors dismissed complaints lodged by the applicant and held that the decision to discontinue the inquiry was lawful and justified.", "22. On 24 February 2006 a superior prosecutor of the Prosecutor General ’s Office examined the case file and concluded that the inquiry should not have been discontinued. He established that the experts at the Forensic Centre had breached provisions of the Law and that the tissue removal had been unlawful. The decision to discontinue the inquiry was quashed and the case file was sent back to the security police.", "23. On 3 August 2007 the criminal inquiry, in so far as it related to the removal of tissue from the body of the applicant ’ s deceased husband, was discontinued owing to the expiry of the statutory limitation period of five years. However, the legal ground given for this discontinuation was the absence of any elements of a crime. On 13 August 2007 the applicant was informed of that decision. On 19 September and 8 October 2007, in response to complaints lodged by the applicant, the prosecutors stated that the decision had been lawful and justified.", "24. On 3 December 2007 another superior prosecutor of the Office of the Prosecutor General examined the case file and concluded that the inquiry should not have been discontinued. She established that the experts at the Forensic Centre had breached provisions of the Law and that the tissue removal had been unlawful. The decision to discontinue the inquiry was once again quashed and the case file was again sent back to the security police.", "25. On 4 March 2008 a new decision to discontinue the criminal inquiry was adopted, based on the legal ground of the expiry of the statutory limitation period. On 27 March 2008, in response to a complaint from the applicant, the prosecutor once again quashed the decision.", "26. A fresh investigation was carried out. During the course of that investigation it was established that in 1999 tissue had been removed from 152 people; in 2000, from 151 people; in 2001, from 127 people; and in 2002, from 65 people. In exchange for the supply of tissue to the company, the Forensic Centre had organised the purchase of different medical equipment, instruments, technology and computers for medical institutions in Latvia and the company had paid for these purchases. Within the framework of the agreement, the total monetary value of the equipment for which the company had paid exceeded the value of the removed tissue that was sent to the company. In the decision of 14 April 2008 (see paragraph 27 below) it was noted that the tissue was not removed for transplantation purposes in accordance with section 10 of the Law but was actually removed for transformation into other products to be used for patients not only in Latvia, but also in other countries.", "27. On 14 April 2008 the criminal inquiry was discontinued owing to the expiry of the statutory limitation period. In the decision it was noted that whenever an expert from the Rēzekne Forensic Division, for example, had interviewed the relatives prior to the removal of organs or tissue, he had never expressly informed them of such potential removal or indeed obtained their consent. According to the testimonies of all the relatives, they would not have consented to the removal of organs or tissue had they been informed and their wishes established. According to the experts ’ testimonies, they had merely checked passports for stamps and had not sought relatives ’ consent as they had not been in contact with them. It was also noted that with effect from 1 January 2002 information was to be sought from the population register, which the experts had failed to do. It was concluded that the experts, including N.S., had contravened section 4 of the Law and had breached the relatives ’ rights. However, owing to the five ‑ year statutory limitation period ( which started running on 3 March 2003), the criminal inquiry was discontinued and on 9 May and 2 June 2008 the prosecutors upheld that decision in response to complaints lodged by the applicant. The applicant lodged a further complaint.", "28. In the meantime, the experts, including N.S., lodged an appeal contesting the reasons for the discontinuation of the criminal inquiry ( kriminālprocesa izbeigšanas pamatojums ). They contested their status as the persons against whom the criminal inquiry concerning unlawful tissue removal had been instigated because they had not at any stage been informed of this inquiry and argued that, accordingly, they had been unable to exercise their defence rights. On 26 June 2008, in a final decision, the Riga City Vidzeme District Court upheld their appeal (case no. 1840000303), quashed the 14 April 2008 decision and sent the case file back to the security police. The court found as follows.", "“ Notwithstanding the fact that a certain proportion of the transplants were not returned to be used for patients in Latvia, there is no evidence in the case file that they were used for processing into other products or for scientific or educational purposes. Therefore, the court considers that there is no evidence in the case file that the removed tissue was used for purposes other than transplantation ...", "There is no evidence in the case file demonstrating that the removal of tissue for transplantation purposes had been carried out in disregard of the deceased person ’ s refusal, as expressed during his lifetime and recorded in accordance with the law in force at the relevant time, or in disregard of any refusal expressed by the closest relatives.", "Taking into account the fact that legislative instruments do not impose any obligation on the experts who carry out the removal of tissue and organs from deceased persons ’ bodies to inform persons of their right to refuse tissue or organ removal, the court considers that the experts did not have any obligation to do so; by not informing the deceased person ’ s relatives of their intention to remove tissue, the experts did not breach the provisions of the [Law], as effective from 1994 to March 2003. Section 4 of the [Law] provides for the right of the closest relatives to refuse the removal of the deceased person ’ s organs and/or tissue, but does not impose an obligation on the expert to explain this right to the relatives. Given that there are no legislative instruments which impose an obligation on the experts to inform relatives of their intention to remove tissue and/or organs and to explain to the relatives their right to object by refusing their consent, the court considers that a person cannot be punished for a failure to comply with an obligation which is not clearly laid down in a legislative instrument in force. Therefore, the court finds that the experts, by carrying out the tissue and organ removal from the deceased, did not breach ... the [Law].", "... The court finds that the experts ’ actions did not constitute the elements of a crime proscribed by section 139 of the Criminal Law; therefore, it is possible to discontinue the criminal proceedings for exonerating reasons – namely on the grounds of section 377(2) of the Criminal Procedure Law ‒ owing to the absence of the elements of a crime. ”", "29. On 2 July 2008 the superior prosecutor responded to a complaint lodged by the applicant. The superior prosecutor admitted that the inquiry had taken a long time owing to numerous complaints against the decisions. However, she did not find any particular circumstances which would indicate that it had been unduly protracted. At the same time, she informed the applicant that the court had quashed the 14 April 2008 decision upon the appeal by the experts. She further stated that a new decision to discontinue the criminal inquiry had been adopted on 27 June 2008 and that the applicant would soon be duly notified.", "30. Indeed, the applicant received the 27 June 2008 decision a few days later. It was reiterated in that decision that the experts did not have any legal obligation to inform anyone about their right to consent to or refuse organ or tissue removal. Section 4 of the Law provided for the right of the closest relatives to object to the removal of the deceased person ’ s organs and tissue, but did not impose any obligation on the expert to explain these rights to the relatives. A person could not be punished for a failure to comply with an obligation which was not clearly laid down in a legal provision; the experts had therefore not breached the Law. The applicant lodged further complaints.", "31. On 15 August 2008 the prosecutor replied, inter alia, that there were no circumstances indicating the desecration of a human body. At the same time, she explained that the experts had performed actions in connection with the unlawful tissue removal in order to use the tissue for medical purposes. After the removal of tissue, other material was commonly implanted to restore the visual integrity of dead bodies. Therefore, the criminal inquiry had concerned actions under section 139 of the Criminal Law and not under section 228, which proscribed desecration of a dead body.", "32. On 10 September 2008 a superior prosecutor replied that there were no grounds for examining the actions of the persons who had proceeded with the tissue removal under section 228 of the Criminal Law as desecration of a dead body. The experts had proceeded in accordance with an instruction issued by the Ministry of Justice, implanting other material in the place of the removed tissue. According to the instruction, tissue was to be removed in such a way so as not to mutilate the body, and, if necessary, subsequent restoration was to be carried out.", "33. On 23 October 2008 another superior prosecutor of the Prosecutor General ’s Office replied with a final negative decision." ]

[ "II. RELEVANT INTERNATIONAL DOCUMENTS AND DOMESTIC LAW", "A. Council of Europe documents", "34. On 11 May 1978 the Committee of Ministers of the Council of Europe adopted Resolution (78) 29 on harmonisation of legislations of member States relating to removal, grafting and transplantation of human substances, which recommended that the governments of the member States ensure that their laws conform to the rules annexed to the Resolution or adopt provisions conforming to these rules when introducing new legislation.", "Article 10 of this Resolution provides:", "“1. No removal must take place when there is an open or presumed objection on the part of the deceased, in particular, taking into account his religious and philosophical convictions.", "2. In the absence of the explicit or implicit wish of the deceased the removal may be effected. However, a state may decide that the removal must not be effected if, after such reasonable inquiry as may be practicable has been made into the views of the family of the deceased and in the case of a surviving legally incapacitated person those of his legal representative, an objection is apparent; when the deceased was a legally incapacitated person the consent of his legal representative may also be required.”", "35. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine : Convention on Human Rights and Biomedicine (ETS No. 164) is the first international treaty in the field of bioethics. It came into force on 1 December 1999 in respect of the States that had ratified it. Latvia signed the Convention on Human Rights and Biomedicine on 4 April 1997, ratified it on 25 February 2010, and it came into force in respect of Latvia on 1 June 2010. The Convention on Human Rights and Biomedicine is not applicable to organ and tissue removal from deceased persons. It concerns organ and tissue removal from living donors for transplantation purposes (Articles 19 ‑ 20).", "36. In relation to organ and tissue removal from deceased persons, an Additional Protocol on Transplantation of Organs and Tissues of Human Origin was adopted ( ETS No. 186), to which the Government referred. On 1 May 2006 it came into force in respect of the States that had ratified it. Latvia has neither signed nor ratified this Protocol.", "37. The relevant Articles of the Additional Protocol read as follows.", "Article 1 – Object", "“Parties to this Protocol shall protect the dignity and identity of everyone and guarantee, without discrimination, respect for his or her integrity and other rights and fundamental freedoms with regard to transplantation of organs and tissues of human origin.”", "Article 16 – Certification of death", "“Organs or tissues shall not be removed from the body of a deceased person unless that person has been certified dead in accordance with the law.", "The doctors certifying the death of a person shall not be the same doctors who participate directly in removal of organs or tissues from the deceased person, or subsequent transplantation procedures, or having responsibilities for the care of potential organ or tissue recipients.”", "Article 17 – Consent and authorisation", "“Organs or tissues shall not be removed from the body of a deceased person unless consent or authorisation required by law has been obtained.", "The removal shall not be carried out if the deceased person had objected to it.”", "Article 18 – Respect for the human body", "“During removal the human body must be treated with respect and all reasonable measures shall be taken to restore the appearance of the corpse.”", "The relevant parts of the Explanatory Report to the Additional Protocol read as follows.", "Introduction", "“2. The purpose of the Protocol is to define and safeguard the rights of organ and tissue donors, whether living or deceased, and those of persons receiving implants of organs and tissues of human origin.”", "Drafting of the Protocol", "“7. This Protocol extends the provisions of the Convention on Human Rights and Biomedicine in the field of transplantation of organs, tissues and cells of human origin. The provisions of the Convention are to be applied to the Protocol. For ease of consultation by its users, the Protocol has been drafted in such a way that they need not keep referring to the Convention in order to understand the scope of the Protocol ’ s provisions. However, the Convention contains principles which the Protocol is intended to develop. Accordingly, systematic examination of both texts may prove helpful and sometimes indispensable.”", "Comments on the provisions of the Protocol Preamble", "“13. The Preamble highlights the fact that Article 1 of the Convention on Human Rights and Biomedicine protecting the dignity and the identity of all human beings and guaranteeing everyone respect for their integrity, forms a suitable basis on which to formulate additional standards for safeguarding the rights and freedoms of donors, potential donors and recipients of organs and tissues.”", "Article 1 – Object", "“16. This article specifies that the object of the Protocol is to protect the dignity and identity of everyone and guarantee, without discrimination, respect for his or her integrity and other rights and fundamental freedoms with regard to transplantation of organs and tissues of human origin.", "17. The term ‘ everyone ’ is used in Article 1 because it is seen as the most concordant with the exclusion of embryonic and foetal organs or tissues from the scope of the Protocol as stated in Article 2 ... The Protocol solely concerns removal of organs and tissues from someone who has been born, whether now living or dead, and the implantation of organs and tissues of human origin into someone else who has likewise been born.”", "Article 16 – Certification of death", "“ 94. According to the first paragraph, a person ’ s death must have been established before organs or tissues may be removed ‘ in accordance with the law ’. It is the responsibility of the States to legally define the specific procedure for the declaration of death while the essential functions are still artificially maintained. In this respect, it can be noted that in most countries, the law defines the concept and the conditions of brain death.", "95. The death is confirmed by doctors following an agreed procedure and only this form of death certification can permit the transplantation to go ahead. The retrieval team must satisfy themselves that the required procedure has been completed before any retrieval operation is started. In some States, this procedure for certification of death is separate from the formal issuance of the death certificate.", "96. The second paragraph of Article 16 provides an important safeguard for the deceased person by ensuring the impartiality of the certification of death, by requiring that the medical team which certifies death should not be the same one that is involved in any stage of the transplant process. It is important that the interests of any such deceased person and the subsequent certification of death are, and are seen to be, the responsibility of a medical team entirely separate from those involved in transplantation. Failure to keep the two functions separate would jeopardise the public ’ s trust in the transplantation system and might have an adverse effect on donation.", "97. For the purposes of this Protocol, neonates including anencephalic neonates receive the same protection as any person and the rules on certification of death are applicable to them. ”", "Article 17 – Consent and authorisation", "“ 98. Article 17 bars the removal of any organ or tissue unless the consent or authorisation required by national law has been obtained by the person proposing to remove the organ or tissue. This requires member States to have a legally recognised system specifying the conditions under which removal of organs or tissues is authorised. Furthermore, by virtue of Article 8, the Parties should take appropriate measures to inform the public, namely about matters relating to consent or authorisation with regard to removal from deceased persons ...", "99. If a person has made known their wishes for giving or denying consent during their lifetime, these wishes should be respected after his/her death. If there is an official facility for recording these wishes and a person has registered consent to donation, such consent should prevail: removal should go ahead if it is possible. By the same token, it may not proceed if the person is known to have objected. Nonetheless, consultation of an official register of last wishes is valid only in respect of the persons entered in it. Nor may it be considered the only way of ascertaining the deceased person ’ s wishes unless their registration is compulsory.", "100. The removal of organs or tissues can be carried out on a deceased person who has not had, during his/her life, the capacity to consent if all the authorisations required by law have been obtained. The authorisation may equally be required to carry out a removal on a deceased person who, during his/her life, was capable of giving consent but did not make known his wishes regarding an eventual removal post-mortem.", "101. Without anticipating the system to be introduced, the Article accordingly provides that if the deceased person ’ s wishes are at all in doubt, it must be possible to rely on national law for guidance as to the appropriate procedure. In some States the law permits that if there is no explicit or implicit objection to donation, removal can be carried out. In that case, the law provides means of expressing intention, such as drawing up a register of objections. In other countries, the law does not prejudge the wishes of those concerned and prescribes enquiries among relatives and friends to establish whether or not the deceased person was in favour of organ donation.", "102. Whatever the system, if the wishes of the deceased are not sufficiently established, the team in charge of the removal of organs must beforehand endeavour to obtain testimony from relatives of the deceased. Unless national law otherwise provides, such authorisation should not depend on the preferences of the close relatives themselves for or against organ and tissue donation. Close relatives should be asked only about the deceased persons expressed or presumed wishes. It is the expressed views of the potential donor which are paramount in deciding whether organs or tissue may be retrieved. Parties should make clear whether organ or tissue retrieval can take place if a deceased person ’ s wishes are not known and cannot be ascertained from relatives or friends.", "103. When a person dies in a country in which he/she is not normally resident, the retrieval team shall take all reasonable measures to ascertain the wishes of the deceased. In case of doubt, the retrieval team should respect the relevant applicable laws in the country in which the deceased is normally resident or, by default, the law of the country of which the deceased person is a national. ”", "Article 18 – Respect for the human body", "“ 104. A dead body is not legally regarded as a person, but nonetheless should be treated with respect. This article accordingly provides that during removal the human body must be treated with respect and after removal the body should be restored as far as possible to its original appearance. ”", "38. In May 2002 the Secretary General of the Council of Europe sent a questionnaire to the Council of Europe member States concerning aspects of law and practice in relation to transplantation [1]. The Latvian government replied in the affirmative to the question of whether removal from a living donor required authorisation and referred to Articles 19 and 20 of the Convention on Human Rights and Biomedicine and section 13 of the Law on the protection of the body of a deceased person and use of human organs and tissue. They noted that written consent was required. In their response to the question “What kind of relationships should exist between the living donor of an organ and the recipient?”, they referred to Articles 19 and 20 of the Convention on Human Rights and Biomedicine. In their response to the question “What sanctions are provided for [organ-trafficking] offenders, in particular, for intermediaries and health professionals?”, the Latvian government referred to section 139 of the Criminal Law (see paragraph 53 below).", "B. European Union documents", "39. On 21 July 1998 the European Group on Ethics in Science and New Technologies (EGE) [2] issued Opinion no. 11 on ethical aspects of human tissue banking. Its relevant parts read as follows.", "“ 2.3 Information and consent", "The procurement of human tissues requires, as a principle, the prior, informed and free consent of the person concerned. This does not apply in the case of tissue procurement ordered by a judge in the context of judicial, in particular criminal, proceedings.", "While consent is a fundamental ethical principle in Europe, the procedures involved and forms of such consent (oral or in writing, before a witness or not, explicit or presumed, etc.) are a matter for national legislation based on the legal traditions of each country.", "...", "2.3.2 Deceased donors", "Consent of a donor for retrieval of tissues after death may take different forms depending on the national systems ( ‘ explicit ’ or ‘ presumed ’ consent). However, no retrieval of tissues may take place, with the exception of judicial proceedings, if the party concerned formally objected while alive. Furthermore, if there has been no expression of will and the applicable system is that of ‘ presumed ’ consent, doctors must ensure as far as possible that relatives or next of kin have the opportunity to express the deceased person ’ s wishes, and must take these into account.”", "40. The relevant parts of Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells provide as follows.", "Article 13 – Consent", "“1. The procurement of human tissues or cells shall be authorised only after all mandatory consent or authorisation requirements in force in the Member State concerned have been met.", "2. Member States shall, in keeping with their national legislation, take all necessary measures to ensure that donors, their relatives or any persons granting authorisation on behalf of the donors are provided with all appropriate information as referred to in the Annex.”", "ANNEX – INFORMATION TO BE PROVIDED ON THE DONATION OF CELLS AND/OR TISSUES", "B. Deceased donors", "“1. All information must be given and all necessary consents and authorisations must be obtained in accordance with the legislation in force in Member States.", "2. The confirmed results of the donor ’ s evaluation must be communicated and clearly explained to the relevant persons in accordance with the legislation in Member States.”", "C. World Health Organisation (WHO) documents", "41. The WHO Guiding Principles on Human Cell, Tissue and Organ Transplantation (endorsed by the sixty-third World Health Assembly on 21 May 2010, Resolution WHA63.22) provide, in so far as relevant, as follows.", "Guiding Principle 1", "“Cells, tissues and organs may be removed from the bodies of deceased persons for the purpose of transplantation if:", "(a) any consent required by law is obtained, and", "(b) there is no reason to believe that the deceased person objected to such removal.”", "Commentary on Guiding Principle 1", "“ Consent is the ethical cornerstone of all medical interventions. National authorities are responsible for defining the process of obtaining and recording consent for cell, tissue and organ donation in the light of international ethical standards, the manner in which organ procurement is organized in their country, and the practical role of consent as a safeguard against abuses and safety breaches.", "Whether consent to procure organs and tissues from deceased persons is ‘ explicit ’ or ‘ presumed ’ depends upon each country ’ s social, medical and cultural traditions, including the manner in which families are involved in decision-making about health care generally. Under both systems any valid indication of deceased persons ’ opposition to posthumous removal of their cells, tissues or organs will prevent such removal.", "Under a regime of explicit consent – sometimes referred to as ‘ opting in ’ – cells, tissues or organs may be removed from a deceased person if the person had expressly consented to such removal during his or her lifetime; depending upon domestic law, such consent may be made orally or recorded on a donor card, driver ’ s license or identity card or in the medical record or a donor registry. When the deceased has neither consented nor clearly expressed opposition to organ removal, permission should be obtained from a legally specified surrogate, usually a family member.", "The alternative, presumed consent system – termed ‘ opting (or contracting) out ’ – permits material to be removed from the body of a deceased person for transplantation and, in some countries, for anatomical study or research, unless the person had expressed his or her opposition before death by filing an objection with an identified office, or an informed party reports that the deceased definitely voiced an objection to donation. Given the ethical importance of consent, such a system should ensure that people are fully informed about the policy and are provided with an easy means to opt out.", "Although expressed consent is not required in an opting-out system before removal of the cells, tissues or organs of a deceased person who had not objected while still alive, procurement programmes may be reluctant to proceed if the relatives personally oppose the donation; likewise, in opting-in systems, programmes typically seek permission from the family even when the deceased gave pre-mortem consent. Programmes are more able to rely on the deceased ’ s explicit or presumed consent, without seeking further permission from family members, when the public ’ s understanding and acceptance of the process of donating cells, tissues and organs is deep-seated and unambiguous. Even when permission is not sought from relatives, donor programmes need to review the deceased ’ s medical and behavioural history with family members who knew him or her well, since accurate information about donors helps to increase the safety of transplantation.", "For tissue donation, which entails slightly less challenging time constraints, it is recommended always to seek the approval of the next of kin. An important point to be addressed is the manner in which the appearance of the deceased ’ s body will be restored after the tissues are removed. ”", "D. Domestic law", "1. Law on the protection of the body of a deceased person and use of human organs and tissues", "42. The Law on protection of the body of a deceased person and use of human organs and tissue ( likums “ Par miruša cilvēka ķermeņa aizsardzību un cilvēka audu un orgānu izmantošanu medicīnā ” – “the Law”), as in force at the relevant time (with amendments effective as of 1 November 1995 and up until 31 December 2001 ), provides in section 2 that every living person with legal capacity is entitled to consent or object, in writing, to the use of his or her body after death. The wish expressed, unless it is contrary to the law, is binding.", "43. Section 3 provides that any such refusal of or consent to the use of one ’ s body after death has legal effect only if it has been signed by a person with legal capacity, recorded in his or her medical record and denoted by a special stamp in his or her passport. The Department of Health in the Ministry of Welfare is responsible for prescribing the procedure for recording refusal or consent in a person ’ s medical record (contrast with the situation following legislative amendments effective as of 1 January 2002, Petrova v. Latvia, no. 4605/05, § 35, 24 June 2014 ).", "44. Pursuant to section 4, which is entitled “The rights of the closest relatives”, the organs and tissues of a deceased person may not be removed against his or her wishes as expressed during his or her lifetime. In the absence of express wishes, removal may be carried out if none of the closest relatives (children, parents, siblings or spouse) objects. Transplantation may be carried out after the biological or brain death of the potential donor (section 10).", "45. More specifically, section 11 of the Law provides that organs and tissue from a deceased donor may be removed for transplantation purposes if that person has not objected to such removal during his or her lifetime and if his or her closest relatives have not prohibited it.", "46. By virtue of a transitional provision of the Law, a stamp in a person ’ s passport added before 31 December 2001 denoting objection or consent to the use of his or her body after death has legal effect until a new passport is issued or an application to the Office of Citizenship and Migration Affairs is submitted.", "47. Section 17 provides that the State is responsible for protecting the body of a deceased person and for using organs or tissues for medical purposes. At the material time this function was entrusted to the Department of Health in the Ministry of Welfare (as of 1 January 2002, the Ministry of Welfare, as of 30 June 2004, the Ministry of Health). No organisation or authority can carry out the removal of organs and tissues and use them without an authorisation issued by the Department of Health (as of 1 January 2002, the Minister of Welfare, as of 30 June 2004, the Minister of Health).", "48. Section 18 prohibits the selection, transportation and use of the removed organs and tissues for commercial purposes. It also provides that the removal of organs and tissues from any living or deceased person can only be carried out with strict respect for that person ’ s expressed consent or objection.", "49. Section 21 originally provided that the prosecutor ’ s office was to supervise compliance with this Law (paragraph 1). The Department of Health of the Ministry of Welfare and other competent bodies were responsible for monitoring the legality of the use of human tissue and organs (paragraph 2). By virtue of amendments effective from 1 January 2002, paragraph 1 was repealed; the remaining paragraph provided that the Ministry of Welfare was to bear responsibility for checking the compatibility of the use of human tissue and organs with law and other legislative instruments. From 30 June 2004 this task was entrusted to the Ministry of Health. Lastly, since 27 August 2012 this section has been repealed in its entirety.", "50. On 2 June 2004 amendments to sections 4 and 11 of the Law were passed by Parliament, effective as of 30 June 2004. From that date onwards, section 4 provides that if no information is recorded in the population register about a deceased person ’ s refusal of or consent to the use of his or her body, organs or tissue after death, the closest relatives have the right to inform the medical institution in writing of the wishes of the deceased person expressed during his or her lifetime. Section 11 provides that the organs and body tissue of a deceased person may be removed for transplantation purposes if no information is recorded in the population register about the deceased person ’ s refusal of or consent to the use of his or her organs or body tissue after death and if the closest relatives of the deceased have not, before the start of the transplantation, informed the medical institution in writing of any objection by the deceased person to the use of his or her organs and body tissue after death expressed during his or her lifetime. It is forbidden to remove organs and body tissue from a dead child for transplantation purposes unless one of his or her parents or his or her legal guardian has consented to it in writing.", "2. Regulation of the Cabinet of Ministers no. 431 (1996)", "51. This Regulation ( Noteikumi par miruša cilvēka audu un orgānu uzkrāšanas un izmantošanas kārtību medicīnā ) provides that removal of organs and tissue may be carried out after the biological or brain death of a person if his or her passport and medical record contain a stamp denoting consent to such removal ( see paragraph 3 of the Regulation ). In the absence of such a stamp, the provisions of the Law (see paragraphs 42-50 above) are to be followed.", "3. Legal regulation of the MADEKKI", "52. The legal regulations governing the Inspectorate of Quality Control for Medical Care and Working Capability (“MADEKKI”) in Latvian law are summarised in L.H. v. Latvia (no. 52019/07, §§ 24-27, 29 April 2014). For the purposes of the present case it suffices to note that these regulations ‒ approved by the Cabinet of Ministers (Regulation no. 391 (1999), effective from 26 November 1999 to 30 June 2004) ‒ provided, inter alia, that one of the main functions of the MADEKKI was to monitor the professional quality of healthcare in medical institutions.", "4. Criminal law provisions", "53. Section 139 of the Criminal Law ( Krimināllikums ) provides that the unlawful removal of organs or tissues from a living or deceased human being in order to use them for medical purposes is a criminal offence if carried out by a medical practitioner.", "54. The relevant provisions pertaining to the rights of civil parties in criminal proceedings under the former Code of Criminal Procedure ( Latvijas Kriminālprocesa kodekss, effective until 1 October 2005) are described in Liģeres v. Latvia (no. 17/02, §§ 39-41, 28 June 2011) and Pundurs v. Latvia ((dec.), no. 43372/02, §§ 12-17, 20 September 2011).", "55. In addition, the relevant provisions pertaining to the rights of civil parties in criminal proceedings under the Criminal Procedure Law ( Kriminālprocesa likums, effective from 1 October 2005), as in force at the material time, read as follows.", "Section 22 – Right to compensation for damage", "“A person who has sustained psychological distress, physical injury or pecuniary loss as a result of a criminal offence shall be guaranteed procedural opportunities to request and receive compensation for pecuniary and non-pecuniary damage.”", "Section 351 – Claim for compensation", "“(1) An injured party shall have the right to submit a claim for compensation for harm caused at any stage of criminal proceedings up to the commencement of a judicial investigation in a court of first instance. The claim shall contain justification of the amount of compensation requested.", "(2) A claim may be submitted in writing or expressed orally. An oral request shall be recorded in the minutes by the person directing the proceedings.", "(3) During pre-trial proceedings, the public prosecutor shall indicate the submission of a claim and the amount of compensation claimed, as well as his or her opinion thereon, in the document concerning the completion of pre-trial proceedings.", "(4) Failure to ascertain the criminal liability of a person shall not be an impediment to the submission of a compensation claim.", "(5) An injured party shall have the right to withdraw a submitted compensation claim at any stage of criminal proceedings up to the moment when the court retires to give judgment. The refusal of compensation by a victim may not constitute grounds for the revocation or modification of charges, or for acquittal.”", "5. The right to receive compensation", "56. Article 92 of the Constitution ( Satversme ) provides, inter alia, that “any person whose rights are violated without justification has a right to commensurate compensation ”.", "57. Domestic legal provisions pertaining to compensation for pecuniary and non-pecuniary damage under the Civil Law ( Civillikums ), before and after the amendments that were effective from 1 March 2006, are quoted in full in Zavoloka v. Latvia (no. 58447/00, §§ 17-19, 7 July 2009). Sections 1635 and 1779 are further described in Holodenko v. Latvia (no. 17215/07, § 45, 2 July 2013).", "58. Under section 92 of the Administrative Procedure Law ( Administratīvā procesa likums ), in force since 1 February 2004, everyone has the right to receive commensurate compensation for pecuniary and non ‑ pecuniary damage caused by an administrative act or action of a public authority. Under section 93 of the same Law, a claim for compensation can be submitted either together with an application to the administrative courts to declare an administrative act or action of a public authority unlawful, or to the public authority concerned following a judgment adopted in such proceedings. Under section 188, an application to an administrative court regarding an administrative act or action of a public authority must be lodged within one month or one year depending on the circumstances. In relation to an action of a public authority, the one - year time-limit runs from the date on which the applicant finds out that such action has occurred. Lastly, under section 191(1) an application will be refused if more than three years have elapsed since the applicant found out or ought to have found out that such action occurred. This time-limit is not amenable to extension ( atjaunots ).", "59. The amount of compensation and the procedure for claiming damages from a public authority on account of an unlawful administrative act or an unlawful action of a public authority are prescribed by the Law on compensation for damage caused by public authorities ( Valsts pārvaldes iestāžu nodarīto zaudējumu atlīdzināšanas likums ), in force since 1 July 2005. Chapter III of the Law provides for the procedure to be followed when an individual claims damages from a public authority. Under section 15, an individual is entitled to lodge an application with the public authority that was responsible for the damage. Pursuant to section 17, such an application must be lodged not later than one year from the date when the individual became aware of the damage and, in any event, not later than five years after the date of the unlawful administrative act or unlawful action of a public authority.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "60. The applicant complained in substance under Article 8 of the Convention, firstly, that the removal of tissue from her husband ’ s body had been carried out without his or the applicant ’ s prior consent. Secondly, she complained that ‒ in the absence of such consent ‒ his dignity, identity and integrity had been breached and his body had been treated disrespectfully.", "61. Article 8 of the Convention reads as follows.", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "62. The Government denied that there had been a violation of that Article.", "A. Preliminary issues", "63. The Court must start by examining whether it is competent ratione personae to examine the applicant ’ s complaint; this issue calls for consideration by the Court of its own motion (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 27, ECHR 2009).", "64. The Court ’ s approach as concerns direct and indirect victims has been recently summarised in Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ( [GC], no. 47848/08, §§ 96-100, ECHR 2014 ) as follows (references omitted).", "“ (i) Direct victims", "96. In order to be able to lodge an application in accordance with Article 34, an individual must be able to show that he or she was ‘ directly affected ’ by the measure complained of ... This is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings ...", "Moreover, in accordance with the Court ’ s practice and with Article 34 of the Convention, applications can only be lodged by, or in the name of, individuals who are alive ... Thus, in a number of cases where the direct victim has died prior to the submission of the application, the Court has not accepted that the direct victim, even when represented, had standing as an applicant for the purposes of Article 34 of the Convention ...", "(ii) Indirect victims", "97. Cases of the above-mentioned type have been distinguished from cases in which an applicant ’ s heirs were permitted to pursue an application which had already been lodged. An authority on this question is Fairfield and Others ..., where a daughter lodged an application after her father ’ s death, alleging a violation of his rights to freedom of thought, religion and speech (Articles 9 and 10 of the Convention). While the domestic courts granted Ms Fairfield leave to pursue the appeal after her father ’ s death, the Court did not accept the daughter ’ s victim status and distinguished this case from the situation in Dalban v. Romania ..., where the application had been brought by the applicant himself, whose widow had pursued it only after his subsequent death.", "In this regard, the Court has differentiated between applications where the direct victim has died after the application was lodged with the Court and those where he or she had already died beforehand.", "Where the applicant has died after the application was lodged, the Court has accepted that the next of kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case ...", "98. However, the situation varies where the direct victim dies before the application is lodged with the Court. In such cases the Court has, with reference to an autonomous interpretation of the concept of ‘ victim ’, been prepared to recognise the standing of a relative either when the complaints raised an issue of general interest pertaining to ‘ respect for human rights ’ (Article 37 § 1 in fine of the Convention) and the applicants as heirs had a legitimate interest in pursuing the application, or on the basis of the direct effect on the applicant ’ s own rights ... The latter cases, it may be noted, were brought before the Court following or in connection with domestic proceedings in which the direct victim himself or herself had participated while alive.", "Thus, the Court has recognised the standing of the victim ’ s next of kin to submit an application where the victim has died or disappeared in circumstances allegedly engaging the responsibility of the State ...", "99. In Varnava and Others ... the applicants lodged the applications both in their own name and on behalf of their disappeared relatives. The Court did not consider it necessary to rule on whether the missing men should or should not be granted the status of applicants since, in any event, the close relatives of the missing men were entitled to raise complaints concerning their disappearance ... The Court examined the case on the basis that the relatives of the missing persons were the applicants for the purposes of Article 34 of the Convention.", "100. In cases where the alleged violation of the Convention was not closely linked to disappearances or deaths giving rise to issues under Article 2, the Court ’ s approach has been more restrictive, as in Sanles Sanles v. Spain ..., which concerned the prohibition of assisted suicide. The Court held that the rights claimed by the applicant under Articles 2, 3, 5, 8, 9 and 14 of the Convention belonged to the category of non-transferable rights, and therefore concluded that the applicant, who was the deceased ’ s sister-in-law and legal heir, could not claim to be the victim of a violation on behalf of her late brother-in-law. The same conclusion has been reached in respect of complaints under Articles 9 and 10 brought by the alleged victim ’ s daughter ...", "In other cases concerning complaints under Articles 5, 6 or 8 the Court has granted victim status to close relatives, allowing them to submit an application where they have shown a moral interest in having the late victim exonerated of any finding of guilt ... or in protecting their own reputation and that of their family ..., or where they have shown a material interest on the basis of the direct effect on their pecuniary rights ... The existence of a general interest which necessitated proceeding with the consideration of the complaints has also been taken into consideration ...", "The applicant ’ s participation in the domestic proceedings has been found to be only one of several relevant criteria ... ”", "65. As regards the first part of the complaint, the Court considers that the applicant has adequately demonstrated that she has been directly affected by the removal of tissue from her deceased husband ’ s body without her consent (see also Petrova v. Latvia, no. 4605/05, § 56, 24 June 2014 ). The Court is therefore satisfied that the applicant can be considered a “direct victim” in that regard (see paragraph 60 above). However, in so far as the applicant ’ s complaint relates to the lack of consent from her deceased husband, the Court considers that it is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention and must therefore be rejected in accordance with Article 35 § 4.", "66. As regards the second part of the complaint, the Court notes that the applicant conceded that it concerned her deceased husband ’ s rights. Accordingly, it must also be rejected as incompatible ratione personae with the provisions of the Convention in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "67. Lastly, the Court notes that in certain respects the second part of the complaint overlaps with the applicant ’ s complaint under Article 3 of the Convention. Accordingly, the Court will examine it below in so far as it relates to the applicant ’ s rights.", "B. Admissibility", "1. The parties ’ submissions", "68. The Government conceded that the applicant ’ s complaint fell within the ambit of “private life” under Article 8 of the Convention, but they did not accept that it concerned “family life”.", "69. First of all, relying on the Court ’ s decision in Grišankova and Grišankovs v. Latvia ((dec.), no. 36117/02, ECHR 2003 - II), the Government argued that the applicant had failed to exhaust domestic remedies. They submitted that the applicant should have lodged a complaint with the Constitutional Court since the removal of tissue from her husband ’ s body had been carried out in accordance with the procedure laid down in sections 4 and 11 of the Law. She should have raised the issue of the compliance of these legal provisions with the Latvian Constitution.", "70. Secondly, the Government argued that the applicant had not submitted a complaint to the MADEKKI. The Government pointed out that at the material time the MADEKKI had been the body with competence to examine the applicant ’ s complaints, since its function was to monitor the professional quality of healthcare in medical institutions. It was the Government ’ s submission that an examination by MADEKKI of the compliance of the tissue removal procedure with domestic law was a necessary precondition for instituting any civil or criminal proceedings against those responsible. They did not provide any further information in this regard.", "71. Thirdly, the Government submitted that the applicant could have relied on section 1635 of the Civil Law (as effective from 1 March 2006) and claimed compensation for pecuniary and non-pecuniary damage before the civil courts. The Government provided some examples of domestic case-law pertaining to the application of section 1635 in practice. They referred to the proceedings in case PAC-714 (instituted on 7 February 2005), where a claimant had sought compensation for non-pecuniary damage from a hospital where she had given birth and where tubal ligation (surgical contraception) had been performed without her consent ( referring to L.H. v. Latvia, no. 52019/07, § 8, 29April 2014 ). On 1 December 2006 that claim had been upheld and the claimant had been awarded compensation for physical injury and psychological distress in the amount of 10,000 Latvian lati (LVL) in respect of the unlawful sterilisation on the basis of section 2349 of the Civil Law. This judgment had taken effect on 10 February 2007. The Government also referred to one of the “Talsi tragedy” cases (instituted on 15 September 2006), in which on 16 March 2010 the appellate court had awarded compensation payable by the State in the amount of LVL 20,000 in connection with an incident of 28 June 1997 in Talsi, in which the claimant ’ s daughter, among other children, had died. The final decision in that case had been adopted on 28 September 2011. The Government did not provide copies of the decisions in that case.", "72. The applicant disagreed. She submitted that her complaint fell within the ambit of private and family life under Article 8 of the Convention.", "73. In response to the first remedy cited by the Government – recourse to the Constitutional Court – the applicant pointed out that the court ’ s competence was limited to reviewing compliance with the Constitution of laws and other legal instruments. The applicant argued that the tissue removal had been contrary to sections 4 and 11 of the Law; she did not consider these legal provisions to be contrary to the Constitution. The decision in Grišankova and Grišankovs, cited above, concerned the wording of the Education Law. The present case, however, concerned an individual action – the removal of tissue from her husband ’ s body. Moreover, the applicant argued that if any provisions of the Law were indeed not compatible with the Constitution, the criminal court, the Prosecutor General or the Cabinet of Ministers should and could themselves have submitted an application to the Constitutional Court.", "74. In response to the second remedy cited by the Government, namely a complaint to the MADEKKI, the applicant submitted that it would not have been the competent body. Tissue removal was not healthcare. The applicant referred to section 21 of the Law and explained that at the relevant time supervision had been the responsibility of the prosecutor ’ s office (see paragraph 49 above).", "75. In response to the third remedy cited by the Government, the applicant argued that the Forensic Centre was a State institution under the supervision of the Ministry of Health. Since the entry into force of the Administrative Procedure Law on 1 February 2004, administrative acts and actions of public authorities had been amenable to judicial review by the administrative courts. Thus, an appeal against an action of a public authority – in this case, the removal of tissue from the body of the applicant ’ s husband – could only be lodged in the administrative courts. Referring to the Forensic Centre ’ s regulations, the applicant noted that the actions of its employees were amenable to appeal before its head, whose decisions or actions were subsequently amenable to judicial review by the administrative courts. Appeals under the Administrative Procedure Law, however, would have been time-barred in the applicant ’ s case by the time the final decision had been taken in the criminal proceedings. The applicant concluded that the actions of the expert concerned could not be subject to judicial review by the civil courts.", "76. The applicant also pointed out that the amount of compensation and the procedure for claiming damages from a public authority on account of an unlawful administrative act or unlawful action by a public authority were prescribed by the Law on compensation for damage caused by public authorities and not by the Civil Law. An action under the former law, however, would also have been time-barred.", "77. Lastly, even if the applicant had, as suggested by the Government, lodged a civil claim under section 1635 of the Civil Law against the experts who had removed tissue from her husband ’ s body, it would have been bound to fail since in the criminal proceedings it had been established that they were not guilty. The applicant also pointed out that the examples of domestic case-law referred to by the Government were not comparable. In the first case the civil proceedings had been instituted against a private hospital and not against a State institution. The second case concerned events which dated back to 1997, long before the Administrative Procedure Law and the Law on compensation for damage caused by public authorities had come into effect. In addition, at that time, the Code of Civil Procedure contained a chapter concerning litigation in matters arising from administrative relations, which had been superseded by the entry into force of the Administrative Procedure Law.", "2. The Court ’ s assessment", "(a) Non-exhaustion of domestic remedies", "78. In so far as the Government referred to a constitutional complaint as a relevant remedy in the applicant ’ s circumstances, the Court considers that such a complaint could not constitute an effective means of protecting the applicant ’ s rights under Article 8 of the Convention for the following reasons.", "79. The Court has already examined the scope of the Constitutional Court ’ s review in Latvia (see Grišankova and Grišankovs, cited above; Liepājnieks v. Latvia (dec.), no. 37586/06, §§ 73-76, 2 November 2010; Savičs v. Latvia, no. 17892/03, §§ 113-17, 27 November 2012; Mihailovs v. Latvia, no. 35939/10, §§ 157-58, 22 January 2013; Nagla v. Latvia, no. 73469/10, § 48, 16 July 2013; and Latvijas jauno zemnieku apvienība v. Latvia (dec.), no. 14610/05, §§ 44-45, 17 December 2013 ).", "80. The Court noted in the above cases that the Constitutional Court examined, inter alia, individual complaints challenging the constitutionality of a legal provision or its compliance with a provision having superior legal force. An individual constitutional complaint can be lodged against a legal provision only when an individual considers that the provision in question infringes his or her fundamental rights as enshrined in the Constitution. The procedure of an individual constitutional complaint cannot therefore serve as an effective remedy if the alleged violation resulted only from the erroneous application or interpretation of a legal provision which, in its content, is not unconstitutional (see Latvijas jauno zemnieku apvienība, cited above, §§ 44-45 ).", "81. In the present case, the Court considers that the applicant ’ s complaint concerning the removal of tissue does not relate to the compatibility of one legal provision with another legal provision having superior force. The Government argued that the tissue removal had taken place in accordance with the procedure laid down in law. The applicant, for her part, did not contest the constitutionality of this procedure. Instead, she argued that the tissue removal from her husband ’ s body constituted an individual action that was contrary to sections 4 and 11 of the Law. The Court finds that the applicant ’ s complaint relates to the application and interpretation of domestic law, particularly in the light of the absence of any relevant administrative regulation; it cannot be said that any issues of compatibility arise. In such circumstances the Court considers that the applicant was not required to avail herself of the proposed remedy.", "82. The Court understands the Government ’ s argument in relation to the examination by the MADEKKI (see paragraph 70 above) as chiefly pertaining to civil remedies; the Court will examine it immediately below. It is not clear from the evidence in the case file whether the MADEKKI carried out any examination in relation to the criminal proceedings in the present case (contrast Petrova, cited above, § 15). In any event, it does not appear that any examination by the MADEKKI was necessary in order to institute criminal proceedings. Be that as it may, it is irrelevant that the applicant did not lodge a separate complaint with the MADEKKI, as long as she complained of all the decisions adopted by the investigating and prosecuting authorities, whose task it is normally to establish whether any crime has been committed (ibid., § 71).", "83. As regards the possibility of lodging a civil claim for damages, in Calvelli and Ciglio v. Italy ([GC], no. 32967/96, § 51, ECHR 2002 ‑ I), the Court held :", "“ ... In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged.”", "84. The Court has further stated that this principle applies when the infringement of the right to life or personal integrity is not caused intentionally (see Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 ‑ VIII, and Öneryıldız v. Turkey [GC], no. 48939/99, § 92, ECHR 2004 ‑ XII).", "85. However, the Court has also found that, in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose the remedy which addresses his or her essential grievance (see Jasinskis v. Latvia, no. 45744/08, § 50, 21 December 2010). The Court observes that the applicant was originally unaware of the fact that tissue from her husband ’ s body had been removed; she learned about it only when the security police opened a criminal inquiry into these facts. Subsequently, she availed herself of the criminal avenue of redress – she was declared an injured party in these proceedings and she pursued them by lodging various complaints with the investigating and prosecuting authorities. The criminal-law remedy could have given rise to a finding that the removal of tissue from her husband ’ s body had been carried out contrary to the domestic procedure and that her rights as the closest relative had been breached. It could eventually have led to a compensation award, given that the Latvian legal system recognises victims ’ rights to lodge civil claims in criminal proceedings and to request compensation for damage suffered as a result of a crime (see paragraphs 54 - 55 above). In such circumstances, there is nothing to suggest that the applicant could have legitimately expected that the criminal-law remedy would not be an effective one in her case.", "86. The Court is of the view that the applicant was not required to submit to the civil courts a separate, additional request for compensation, which could also have given rise to a finding that the removal of tissue from her husband ’ s body had been carried out contrary to the domestic procedure and that her rights as the closest relative had been breached (see also Sergiyenko v. Ukraine, no. 47690/07, §§ 40-43, 19 April 2012; Arskaya v. Ukraine, no. 45076/05, §§ 75-81, 5 December 2013; and Valeriy Fuklev v. Ukraine, no. 6318/03, §§ 77-83, 1 6 January 2014, where the applicants were not required to lodge separate civil claims for the alleged medical malpractice). The Court concludes that the applicant exhausted the available domestic remedies by pursuing the criminal-law remedy.", "87. In the light of the above conclusion, the Court does not consider it necessary to address the Government ’ s argument that an examination by the MADEKKI was necessary to institute civil proceedings. Nor does it consider it necessary to address the applicant ’ s argument that her claim under the Administrative Procedure Law and the Law on compensation for damage caused by public authorities was time-barred or that her claim under the Civil Law was bound to fail.", "(b) Applicability", "88. The Court notes that, while the Government did not accept that the applicant ’ s complaint concerned “family life”, they did not dispute that it fell within the ambit of “private life” under Article 8 of the Convention.", "89. The Court reiterates that the concepts of private and family life are broad terms not susceptible to exhaustive definition (see Hadri-Vionnet v. Switzerland, no. 55525/00, § 51, 14 February 2008). In Pannullo and Forte v. France (no. 37794/97, § 36, ECHR 2001-X), the Court considered the excessive delay by the French authorities in returning the body of their child following an autopsy to be an interference with the applicants ’ private and family life. It has also held that the refusal of the investigating authorities to return the bodies of deceased persons to their relatives constituted an interference with the applicants ’ private and family life (see Sabanchiyeva and Others v. Russia, no. 38450/05, § 123, ECHR 2 013, and Maskhadova and Others v. Russia, no. 18071/05, § 212, 6 June 2013). However, that issue does not arise in the present case and no complaint has been made to that effect. The Court notes that there is no dispute between the parties that the applicant ’ s right – established under domestic law – to express consent or refusal in relation to the removal of tissue from her husband ’ s body comes within the scope of Article 8 of the Convention in so far as private life is concerned. The Court sees no reason to hold otherwise and thus considers that this Article is applicable in the circumstances of the case.", "(c) Conclusion", "90. The Court notes that the applicant ’ s complaint ‒ in so far as it concerns the removal of tissue from her deceased husband ’ s body without her consent ‒ is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "C. Merits", "1. The parties ’ submissions", "91. The applicant submitted that the removal of tissue from her husband ’ s body without her consent had constituted interference with her private life. She argued that she had been prevented from expressing her wishes regarding the removal of tissue from her deceased husband ’ s body. She had not even been informed of this intrusive fact. The applicant also submitted that the expert could not have verified the existence of a stamp in her husband ’ s passport because it had been at their home in Sigulda and therefore unavailable to the expert.", "92. First of all, relying on Hokkanen v. Finland ( 23 September 1994, § 55, Series A no. 299 ‑ A ), the applicant argued that the interference had not been in accordance with the law and had not pursued a legitimate aim. The applicant referred to sections 4 and 11 of the Law and argued that in 2001 the system of “explicit consent” had operated in Latvia. The applicant was of the opinion that the experts should have enquired whether the closest relatives had agreed or objected to tissue removal and that they had been under an obligation to do so under the aforementioned provisions. She argued that the aim of the Law was to protect the body of a deceased person and that it was necessary for this aim to be taken into account when interpreting its provisions. In this connection she also referred to international material (see paragraph 3 7 above). Lastly, the 2004 amendments to the Law demonstrated that previously the system of “explicit consent” had prevailed. The discussion regarding “explicit” and “presumed” consent systems in Latvia had only started at about the time that the criminal inquiry was opened in the present case. As a result, substantive legislative amendments had been passed by Parliament in 2004 (see paragraph 50 above). The applicant submitted that even after these amendments the relevant legal provisions were still not clear enough, but their wording had been changed to establish the system of “presumed consent”.", "93. The applicant argued furthermore that the domestic law was not foreseeable in its application because it did not provide for the possibility for the relatives to object to tissue removal. She referred to various findings by the domestic authorities that the legal provisions were unclear (see, for example, paragraph 28 above) and noted that several prosecutors had considered that the Law had indeed been breached (see, for example, paragraphs 22, 24 and 27 above). The applicant argued that the experts had exploited the lack of clarity for their own ends and had derived financial benefit from it. The applicant concluded that the removal of tissue from her husband ’ s body had not been carried out in accordance with the law.", "94. Secondly, the applicant submitted that “saving the lives of others” could not constitute a legitimate aim for removing tissue without consent. And, thirdly, she argued that it had not been sufficiently proved by the Government to be necessary in a democratic society.", "95. The Government maintained that the interference with the applicant ’ s private life as a result of the removal of tissue from her husband ’ s body without his or the applicant ’ s prior consent had complied with the criteria set out in Article 8 § 2.", "96. Firstly, the Government argued that the tissue removal had been carried out in accordance with domestic law. They specifically pointed out that the Court – if it were to reject their non-exhaustion argument as regards recourse to the Constitutional Court – ought to proceed on the assumption that national law was compatible with the standard laid down in Article 8 of the Convention.", "97. They referred to paragraph 3 of Regulation no. 431 (1996) and sections 4 and 11 of the Law and argued that the tissue removal had been carried out in accordance with domestic law. No prior consent had been necessary, nor had it been necessary to seek permission from the deceased person ’ s closest relatives. It had not been unlawful to proceed with the tissue removal without the consent of the deceased person or his or her closest relatives. The Government argued that under sections 4 and 11 of the Law only “an absence of any objection by the deceased person expressed prior to his death or an absence of explicit objection by [the closest relatives] expressed prior to the tissue removal” had been required. The Government thus argued that the system of “presumed consent” had been operating in Latvia at the material time. They pointed out that the system of “presumed consent” was not innovative and that Latvia had not been the only country employing this system; it was also established in eleven other States.", "98. According to the Government, the expert had verified ‒ prior to the tissue removal ‒ that there was no stamp in Mr Elberts ’ passport denoting his objection to the use of his body tissue, and this had allegedly been noted in the form of an abbreviation (“ zīm. nav ”) in the registration log. However, in the copy of the registration log provided to the Court no such legible abbreviation could be seen.", "99. At the same time, the Government acknowledged that national laws did not impose any obligation on a doctor to make specific enquiries in order to ascertain if there were any close relatives and to inform them of possible tissue removal. In this connection they referred to the court ’ s decision in the criminal proceedings (see paragraph 28 above).", "100. Secondly, the Government argued that the tissue removal had been carried out in order to “save and/or improve the lives of others”. They referred to the court ’ s decision in the criminal proceedings (see paragraph 28 above), which had noted that “tissue [was ] removed in the name of humanity with the aim of improving the health of others and prolonging their lives”. They also referred to the Preamble to the Additional Protocol on Transplantation of Organs and Tissues of Human Origin to the effect that the practice of tissue donation and tissue removal for transplantation purposes “contributes to saving lives or greatly improving their quality” and that “transplantation of ... tissues is an established part of the health services offered to the population”. The Government concluded that the tissue removal had had a legitimate aim – namely the protection of the health and the rights of others.", "101. Thirdly, the Government reiterated that the States enjoyed a margin of appreciation when determining measures to be taken in response to the pressing social need to protect the health and the rights of others. The Government relied on Dudgeon v. the United Kingdom ( 22 October 1981, § 52, Series A no. 45) and argued that it was for the national authorities to make the initial assessment of the pressing social need in each case and that the margin of appreciation was left to them. Tissue removal and transplantation contributed to saving lives and could greatly improve their quality. Thus, there was a “pressing social need” for tissue donation because tissue transplantation had become an established part of the health services offered to the whole population. They reiterated that Mr Elberts ’ tissue had been removed in order to secure bio - material for transplantation purposes to potentially improve and/or save the lives of others.", "102. It was primarily the duty and responsibility of the deceased ’ s closest relative to duly inform the medical personnel in good time of the deceased person ’ s objection to his or her tissue removal. The national law at the time had not prevented either Mr Elberts or the applicant, as his closest relative, from expressing their wishes in relation to tissue removal. They could have objected to the donation of tissue. However, neither of them had done so before the tissue had been removed in accordance with the Law. The Government concluded that a fair balance had been struck between the applicant ’ s “right to private life under the Convention ‒ as national laws envisaged the closest relative ’ s right to object to the removal of the deceased person ’ s tissue prior to the removal procedure (which had not been exercised either by Mr Elberts or by the applicant) ‒ and the pressing social need to secure bio - implants for tissue transplantation as part of the health services offered to the whole population ”.", "2. The Court ’ s assessment", "(a) General principles", "103. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. Any interference under the first paragraph of Article 8 must be justified in terms of the second paragraph, namely as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. The notion of necessity implies that the interference correlates with a pressing social need and, in particular, that it is proportionate to one of the legitimate aims pursued by the authorities (see A, B and C v. Ireland [GC], no. 25579/05, §§ 218-41, ECHR 2010).", "104. The Court refers to the interpretation given to the phrase “in accordance with the law” in its case-law (as summarised in S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95-96, ECHR 2008). Of particular relevance in the present case is the requirement for the impugned measure to have some basis in domestic law, which should be compatible with the rule of law; this, in turn, means that the domestic law must be formulated with sufficient precision and must afford adequate legal protection against arbitrariness. Accordingly, the domestic law must indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise (see, most recently, L.H. v. Latvia, cited above, § 47).", "(b) Application in the present case", "105. As to the alleged interference, turning to the circumstances of the present case, the Court notes that following a car accident the applicant ’ s husband sustained life-threatening injuries, of which he died on the way to hospital. On the following day, his body was transported to the Forensic Centre, where an autopsy was carried out. Subsequently, some of his body tissue was removed and later sent to a company in Germany to be transformed into bio - implants with the intention that they would be sent back to Latvia for transplantation purposes. The applicant, who was one of his closest relatives, was not informed of this and could not exercise certain rights established under domestic law – notably the right to express consent or refusal in relation to the removal of tissue from her husband ’ s body. She did not learn about the tissue removal until about two years later, when the security police opened a criminal inquiry into the illegal removal of organs and tissue between 1994 and 2003 and contacted her.", "106. The Court notes that it has not been contested that the Forensic Centre was a public institution and that the acts or omissions of its medical staff, including experts who carried out organ and tissue removal, were capable of engaging the responsibility of the respondent State under the Convention (see Glass v. the United Kingdom, no. 61827/00, § 71, ECHR 2004 ‑ II).", "107. The Court considers that the above-mentioned circumstances are sufficient for it to conclude that there has been an interference with the applicant ’ s right to respect for her private life under Article 8 of the Convention.", "108. As to whether the interference was “in accordance with the law”, the Court observes that Latvian law at the material time explicitly provided for the right on the part of not only the person concerned but also the person ’ s closest relatives, including his or her spouse, to express their wishes in relation to the removal of tissue after that person ’ s death (see paragraphs 44 - 4 5 above). The parties did not contest this. However, their views differed as far as the exercise of this right was concerned. The applicant considered that the experts were obliged to establish the wishes of the closest relatives. The Government argued that the mere absence of any objection was all that was required to proceed with tissue removal. It is the Court ’ s view that these issues relate to the quality of domestic law, in particular the question of whether the domestic legislation was formulated with sufficient precision and afforded adequate legal protection against arbitrariness in the absence of relevant administrative regulations.", "109. In this context, the Court observes that the principal disagreement between the parties is whether or not the law – which in principle afforded the closest relatives the right to express consent or refusal in relation to tissue removal – was sufficiently clear and foreseeable in its application as regards the exercise of this right. The applicant argued that there had been no possibility for her as the closest relative to object to the tissue removal, but the Government were of the view that she could have nonetheless exercised that right as nothing had prevented her from expressing her wishes or her objection.", "110. The Court reiterates, however, that where national legislation is in issue it is not the Court ’ s task to review the relevant legislation in the abstract. Instead, it must confine itself, as far as possible, to examining the issues raised by the case before it (see Taxquet v. Belgium [GC], no. 926/05, § 83 in fine, ECHR 2010). The Court observes that the parties submitted detailed arguments on the dispute as to whether the system of “explicit consent” or “presumed consent” had been operating in Latvia at the material time (see also the divided views of experts and investigators in paragraph 18 above). It has to be borne in mind, however, that the issue before the Court in the present case is not the general question of whether the respondent State should provide for a particular consent system. The issue is rather the applicant ’ s right to express wishes in connection with the removal of tissue from her husband ’ s body after his death and the domestic authorities ’ alleged failure to ensure the legal and practical conditions for the exercise of that right.", "111. The starting - point for the Court ’ s analysis is the fact that the applicant was not informed of the removal of tissue from her husband ’ s body when it was carried out. The domestic authorities established that it was common practice at the time for the experts at the Forensic Centre who carried out such removal not to attempt to contact relatives of the deceased ( see paragraph 16 above); there was also evidence that, even where the experts did have some contact with the relatives, they neither informed them of the imminent removal of tissue nor obtained their consent ( see paragraph 27 above).", "112. As to whether or not the domestic law was formulated with sufficient precision, the Court observes that the domestic authorities themselves held conflicting views as to the scope of the obligations enshrined in national law. On the one hand, while the security police considered that tissue removal was allowed only with prior express consent and that its absence rendered the removal unlawful, they also accepted ‒ referring to the views held by the experts ‒ that different interpretations of domestic law were possible, thus rendering it impossible to secure a conviction ( see paragraphs 18 and 20 above ). On the other hand, various supervising prosecutors concluded that by removing the tissue without prior express consent the experts had breached the law and were to be held criminally liable ( see paragraphs 22, 24 and 25 above ). Eventually, the security police accepted the prosecutors ’ interpretation of the domestic law and found that the rights of the closest relatives, including the applicant, had been breached. However, any criminal prosecution had in the meantime become time-barred ( see paragraph 27 above). Lastly, a domestic court, while accepting that the closest relatives had the right to express consent or refusal in relation to the removal of tissue, overruled the view adopted by the prosecution and found that the domestic law did not impose an obligation on the experts to inform the closest relatives and explain their rights to them. The experts could not be convicted of breaching an obligation which was not clearly established by law ( see paragraph 28 above).", "113. The Court considers that such disagreement as to the scope of the applicable law among the very authorities responsible for its enforcement inevitably indicates a lack of sufficient clarity. In this regard, the Court refers to the domestic court ’ s finding that, although section 4 of the Law provided for the right of the closest relatives to refuse the removal of the deceased person ’ s organs and/or tissue, it did not impose an obligation on the expert to explain this right to the relatives (see paragraph 28 above). The Government also relied on this statement to argue that the tissue removal had not been unlawful (see paragraphs 97 and 9 9 above ). The Court therefore concludes that, although Latvian law set out the legal framework allowing the closest relatives to express consent or refusal in relation to tissue removal, it did not clearly define the scope of the corresponding obligation or the margin of discretion conferred on experts or other authorities in this respect. The Court notes, in this connection, that the relevant European and international documents on this matter accord particular importance to the principle that the relatives ’ views must be established by means of reasonable enquiries (see paragraphs 3 4 et seq. above). More specifically, as noted in the Explanatory Report to the Additional Protocol, whichever system a State chooses to put in place – be it that of “explicit consent” or that of “presumed consent” – appropriate procedures and registers should also be established. If the wishes of the deceased are not sufficiently clearly established, relatives should be contacted to obtain testimony prior to tissue removal (see, in particular, the commentary on Article 17 of the Additional Protocol, paragraph 3 7 above).", "114. Furthermore, the Court reiterates that the principle of legality requires States not only to respect and apply, in a predictable and consistent manner, the laws they have enacted, but also, as a necessary element, to assure the legal and practical conditions for their implementation (see, mutatis mutandis, Broniowski v. Poland [GC], no. 31443/96, §§ 147 and 184, ECHR 2004 ‑ V). Following the death of the applicant ’ s husband on 19 May 2001, an expert from the Forensic Centre was authorised to remove tissue from his body within twenty-four hours of verifying that his passport did not contain a special stamp denoting objection ( see paragraph 16 above). However, it appears that at the material time there was no common register of stamps that had been entered in passports in order to denote refusal of or consent to the use of the passport-holder ’ s body after death (contrast with the situation following legislative amendments effective as of 1 January 2002 and the inclusion of this information in the population register, as described in Petrova, cited above, § 35 ). Moreover, it appears that there was no procedure for the State institutions and experts to follow in order to request and obtain this information. The Government argued that the expert had physically checked Mr Elberts ’ passport prior to removing the tissue, but the applicant claimed that her husband ’ s passport was at home. Therefore, the procedure followed by the expert to verify the information contained in his passport remains unclear. Irrespective of whether or not the expert checked Mr Elberts ’ passport, it remains unclear how the system of consent, as established under Latvian law at the material time, operated in practice in the circumstances in which the applicant found herself, where she had certain rights as the closest relative but was not informed how and when these rights might be exercised, still less provided with any explanation.", "115. As to whether the domestic law afforded adequate legal protection against arbitrariness, the Court notes that the removal of tissue in the present case was not an isolated act as in the above-cited Petrova case, but was carried out under a State-approved agreement with a pharmaceutical company abroad; tissue removal had been carried out on a large number of people ( see paragraphs 13, 14 and 26 above). In such circumstances it is all the more important that adequate mechanisms are put in place to counterbalance the wide margin of discretion conferred on the experts to carry out tissue removal on their own initiative ( see paragraph 15), but this was not done (see also the international material cited in paragraphs 34 et seq. above). In response to the Government ’ s argument that nothing had prevented the applicant from expressing her wishes in relation to tissue removal, the Court notes the lack of any administrative or legal regulation in this regard. The applicant was, accordingly, unable to foresee what was expected from her if she wished to exercise that right.", "116. In the light of the foregoing, the Court cannot find that the applicable Latvian law was formulated with sufficient precision or afforded adequate legal protection against arbitrariness.", "117. The Court accordingly concludes that the interference with the applicant ’ s right to respect for her private life was not in accordance with the law within the meaning of Article 8 § 2 of the Convention. Consequently, there has been a violation of Article 8. Having regard to this conclusion, the Court does not consider it necessary to review compliance with the other requirements of Article 8 § 2 in this case (see, for example, Kopp v. Switzerland, 25 March 1998, § 76, Reports of Judgments and Decisions 1998 ‑ II, and Heino v. Finland, no. 56720/09, § 49, 15 February 2011 ).", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "118. The applicant also complained under Article 3 of the Convention that the removal of tissue from her husband ’ s body had been carried out without her prior consent or knowledge and that she had been forced to bury him with his legs tied together.", "119. Article 3 of the Convention reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "120. The Government contested that argument.", "A. Admissibility", "121. The Government raised the same preliminary objections pertaining to non-exhaustion of domestic remedies as already referred to above, and the applicant disagreed ( see paragraphs 6 9 -7 7 above). In this connection the Court refers to its assessment ( see paragraphs 7 8 -8 7 above) and considers it applicable also under this head.", "122. Furthermore, the Government referred to an instruction issued by the Ministry of Justice (effective until 1 January 2002) concerning the procedure for post mortem forensic examinations and the Law on the order of examination of applications, complaints and suggestions by State and municipal institutions (effective until 1 January 2008). They argued that the applicant could have lodged a complaint regarding the condition of her deceased husband ’ s body. The applicant disagreed. The Court notes that the Government did not specify the manner in which the proposed remedy could provide redress in respect of the applicant ’ s complaint. The Court considers it sufficient to refer to its assessment above to the effect that the applicant ’ s recourse to a criminal-law remedy was appropriate ( see paragraph 85 above). The Court would add here that the applicant also complained of acts of desecration on her husband ’ s body after the tissue removal in the criminal proceedings concerning the allegedly unlawful tissue removal. Prosecutors at two levels examined her complaints and dismissed them, holding that there was no evidence of desecration (see paragraphs 31-32 above). The Government ’ s objection is therefore dismissed.", "123. The Government argued that the applicant had failed to comply with the six-month time-limit, given that she had found out about the condition of her deceased husband ’ s body on 26 May 2001, the day of his funeral. The Court notes, however, that on that date the applicant was not yet aware of the removal of tissue from her husband ’ s body; she learned about it only two years later, when the criminal inquiry was opened. She subsequently became a party to this investigation. The Court therefore regards the final decision in respect of the applicant ’ s complaint as having been issued on 23 October 2008, when the criminal inquiry was discontinued by means of a final decision. It dismisses the preliminary objection in this respect.", "124. The Government, relying on Çakıcı v. Turkey ([GC], no. 23657/94, § 98, ECHR 1999 ‑ IV), argued that the applicant could not be considered a victim under Article 3 of the Convention since neither she nor her husband had ever objected to the removal of tissue. They also argued that, since the applicant had never complained at the domestic level that she had been forced to bury her husband with his legs tied together, she could not claim to be a victim before the Court now. The applicant pointed out that Çakıcı was a disappearance case, whereas she had herself seen her husband ’s remains before the funeral and his legs had been tied together. She had been shocked, but at the time she was unaware of the tissue removal. The Court considers that in the present case the question of whether or not the applicant can be considered a victim is closely linked to the merits of the case. It should therefore be joined to the merits.", "125. Lastly, the Government maintained that the applicant ’ s complaint was incompatible ratione materiae with the provisions of the Convention. The Government argued that only the outer layer of the meninges ( dura mater ) had been removed. While they agreed that the removal of tissue from a deceased person without the consent or knowledge of that person ’ s closest relatives might on an individual and subjective basis give rise to distress, they did not consider that this ‒ in itself ‒ raised an issue under Article 3 of the Convention. The Government submitted that Article 3 did not lay down a general obligation to obtain consent for or to inform the closest relatives of tissue removal. The Government considered that the applicant ’ s complaint fell to be examined solely under Article 8 of the Convention. The Court considers that in the present case the question of whether or not the applicant ’ s complaint falls within the scope of Article 3 of the Convention is closely linked to the merits of the case. It should therefore be joined to the merits.", "126. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds, subject to the questions joined to the merits. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "127. The applicant submitted that the minimum level of severity for Article 3 of the Convention to apply had been reached in the present case. She had witnessed the condition of her husband ’ s body ‒ with the legs tied together ‒ after the tissue removal. She had also been pregnant at the time with their second child. The applicant submitted that the unlawful tissue removal amounted to inhuman and degrading treatment prohibited by Article 3 of the Convention, since it had caused her shock and suffering. In support, she provided a written statement from her sister, who stated that she had seen Mr Elberts ’ body in Sigulda, after it had been transported from the Forensic Centre prior to the funeral, and that his legs had been tied together with dark tape; she had assumed that this had been due to the car accident.", "128. Furthermore, the applicant stressed that throughout the criminal inquiry she had been denied the possibility of finding out which organs or tissue had been removed from her husband ’ s body. At first, she had thought that his legs had been tied together to prevent certain consequences of the car accident. Later, she had assumed that they had been tied together following the removal of tissue from the legs and because other material had been inserted. The applicant was finally able to discover what specific body tissue had been removed from her husband ’ s body only when she received the Government ’ s observations in the present case.", "129. The applicant, relying on Labita v. Italy ([GC], no. 26772/95, § 131, ECHR 2000 ‑ IV), argued that there had been no effective investigation. The inquiry had lasted for five years; it had been terminated because of the expiry of the statutory time-limit. The applicant pointed out that she had lodged some thirteen complaints and that four decisions had been quashed. She considered that the inquiry had not been completed within a reasonable time and that it had been unduly protracted. The applicant, together with other victims, had been left with no redress and the experts had received no punishment.", "130. The Government insisted that the tissue removal had been carried out in accordance with domestic law. The applicant had failed to demonstrate that the removal of tissue from her husband ’ s body had amounted to inhuman or degrading treatment. With reference to Selçuk and Asker v. Turkey (24 April 1998, § 78, Reports 1998 ‑ II), the Government argued that the applicant had failed to demonstrate “anguish and suffering” on account of the removal of tissue without her prior consent. With reference to Ireland v. the United Kingdom (18 January 1978, § 167, Series A no. 25), they likewise argued that she had failed to demonstrate that she had experienced “ feelings of fear, anguish and inferiority capable of humiliating and debasing ” her. The Government reiterated that only dura mater had been removed from the body. Even if the applicant might have experienced a certain level of emotional suffering and distress on account of the removal of tissue without her consent or knowledge, accompanied by the suffering and distress inherent in losing a close family member, such suffering did not attain the minimum level of severity required for it to fall within the scope of Article 3 of the Convention. The Government also argued that during the autopsy, the heart had also been removed from the applicant ’ s husband ’ s body and that dura mater had in any event had to be removed and examined in order to assess whether his skull had been damaged. This could also be said to have caused emotional suffering, but would not attain the minimum level of severity required for Article 3 to apply.", "131. The Government pointed out that the applicant had not been present at Sigulda Hospital and that it had been the responsibility of the closest relatives to inform the medical staff of their whereabouts and to contact them if they wished to object to tissue removal. They further emphasised that the removal had taken place under the agreement with the company, that tissues had been sent to the company for transformation into bio ‑ implants and then sent back to Latvia for transplantation purposes, and that the aim behind this had been to improve and save the lives of others. The Government emphasised that tissue removal had to be carried out “very quickly” and that even the most insignificant of delays would have meant losing some of the precious time during which tissue removal was possible. The Government, relying on the fact that during his lifetime the applicant ’ s husband had not objected to tissue removal or expressed such a view to the applicant, argued that she could not claim that it had been carried out contrary to his or her wishes.", "132. The Government further submitted that the applicant ’ s allegation that her deceased husband ’ s legs had been tied together was false since it was not substantiated by any credible evidence. In their submission, according to the information provided by the Forensic Centre, his body had been tidied, cleansed and washed after the autopsy. They reiterated that no complaints had been registered concerning the condition of his body. According to the autopsy report, his legs had not been damaged in the car accident. In the present case, the standard of proof “beyond reasonable doubt” was not fulfilled as the applicant ’ s allegation concerning the condition of her deceased husband ’ s body had not been substantiated by any evidence.", "2. The Court ’ s assessment", "(a) General principles", "133. In Svinarenko and Slyadnev v. Russia ([GC], nos. 32541/08 and 43441/08, §§ 113-18, ECHR 2014) the Court recently summarised the applicable principles as follows.", "“ 113. As the Court has repeatedly stated, Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim ’ s behaviour (see, among many other authorities, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).", "114. Ill ‑ treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, for example, Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006 ‑ IX). Although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX).", "115. Treatment is considered to be ‘ degrading ’ within the meaning of Article 3 when it humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or when it arouses feelings of fear, anguish or inferiority capable of breaking an individual ’ s moral and physical resistance (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 220, ECHR 2011, and El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 202, ECHR 2012). The public nature of the treatment may be a relevant or aggravating factor in assessing whether it is ‘ degrading ’ within the meaning of Article 3 (see, inter alia, Tyrer v. the United Kingdom, 25 April 1978, § 32, Series A no. 26; Erdoğan Yağız v. Turkey, no. 27473/02, § 37, 6 March 2007; and Kummer v. the Czech Republic, no. 32133/11, § 64, 25 July 2013).", "116. In order for treatment to be ‘ degrading ’, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment (see V. v. the United Kingdom, cited above, § 71). ...", "118. Respect for human dignity forms part of the very essence of the Convention (see Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002 ‑ III). The object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective. Any interpretation of the rights and freedoms guaranteed has to be consistent with the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society (see Soering v. the United Kingdom, 7 July 1989, § 87, Series A no. 161). ”", "134. The Court further notes that in assessing evidence in connection with a claim of a violation of Article 3 of the Convention, it adopts the standard of proof “beyond reasonable doubt”. Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Farbtuhs v. Latvia, no. 4672/02, § 54, 2 December 2004, and Bazjaks v. Latvia, no. 71572/01, § 74, 19 October 2010).", "(b) Application in the present case", "135. Turning to the circumstances of the instant case, the Court observes that the applicant alleged emotional suffering on account of the fact that the removal of tissue from her husband ’ s body had been carried out contrary to domestic law without her prior consent or knowledge and that she had been forced to bury her husband with his legs tied together; the Government argued that the first of these allegations did not reach the level of severity for Article 3 of the Convention to apply and that the second was not proved “beyond reasonable doubt”.", "136. The Court notes that the applicant learned about the fact of tissue removal two years after her husband ’ s funeral and that a further period of some five years elapsed before the final conclusions were reached as to the possibility of criminal acts in this respect. The applicant alleged, and the Government did not deny, that during this entire time she had not been informed what organs or tissue had been removed from her deceased husband ’ s body; she had learned the answer only upon receiving the Government ’ s observations in the present case. Also, the applicant had come up with several reasons as to why her husband ’ s legs had been tied together and her submissions were further corroborated by written evidence from a family member. In view of these facts the applicant, as her husband ’ s closest relative, may have endured emotional suffering.", "137. The Court ’ s task is to ascertain whether, in view of the specific circumstances of the case, such suffering had a dimension capable of bringing it within the scope of Article 3 of the Convention. The Court has never questioned in its case-law the profound psychological impact of a serious human rights violation on the victim ’ s family members. However, in order for a separate violation of Article 3 of the Convention to be found in respect of the victim ’ s relatives, there should be special factors in place giving their suffering a dimension and character distinct from the emotional distress inevitably stemming from the aforementioned violation itself (see Salakhov and Islyamova v. Ukraine, no. 28005/08, § 199, 14 March 2013). Relevant elements include the closeness of the family bond and the way the authorities responded to the relative ’ s enquiries (see, for example, Çakıcı, cited above, § 98, where this principle was applied in the context of enforced disappearance; Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 61, ECHR 2006 -XI, where the Court further relied on this principle in consideration of a mother ’ s complaint regarding her suffering on account of her five-year old daughter ’ s detention in another country; and M.P. and Others v. Bulgaria, no. 22457/08, §§ 122-24, 15 November 2011, where the relevant complaint concerned the suffering of the relatives of an abused child). In the cases cited the Court attached weight to the parent-child bond. It has held that the essence of a violation lay in the authorities ’ reactions and attitudes to the situation when it was brought to their attention ( see Salakhov and Islyamova, cited above, § 200). Similar considerations may be said to be applicable in the present case involving the applicant and her deceased husband.", "138. The Court would distinguish the present case from cases brought before the Court by family members of the victims of “disappearances” or extra-judicial killings committed by the security forces (see, for example, Luluyev and Others v. Russia, no. 69480/01, §§ 116-18, ECHR 2006 ‑ XIII), and from cases where people were killed as a result of actions of the authorities in contravention of Article 2 of the Convention ( see, for example, Esmukhambetov and Others v. Russia, no. 23445/03, §§ 138 ‑ 51 and 190, 29 March 2011). Nor is there any suggestion in the present case that the body had been mutilated (see Akkum and Others v. Turkey, no. 21894/93, §§ 258-59, ECHR 2005 ‑ II, and Akpınar and Altun v. Turkey, no. 56760/00, §§ 84-87, 27 February 2007 ) or dismembered and decapitated (see Khadzhialiyev and Others v. Russia, no. 3013/04, §§ 120-22, 6 November 2008).", "139. While it cannot be said that the applicant was suffering from any prolonged uncertainty regarding the fate of her husband, the Court finds that she had to face a long period of uncertainty, anguish and distress in not knowing what organs or tissue had been removed from her husband ’ s body, and in what manner and for what purpose this had been done. In this context, the Government ’ s argument that only dura mater was removed is of no relevance here. In any event, the applicant discovered this only during the proceedings before the Court. At the time of the events, the applicant had no reason to question the activities carried out in the Forensic Centre, as her husband ’ s body had been delivered there to establish the cause of death. Subsequently, a criminal inquiry was opened to determine the legality of the tissue removal carried out in the Forensic Centre and it was revealed that tissue had been removed not only from her husband ’ s body but also from hundreds of other persons (nearly 500 people in only three years, by way of example ) over a period of some nine years (see paragraphs 13 -33 above). It was also established that removals had been carried out under a State-approved agreement with a pharmaceutical company abroad. This scheme had been implemented by State officials – forensic experts – who, in addition to their ordinary duties of carrying out forensic examinations, had carried out removals on their own initiative (see paragraph 15 above). These are special factors which caused additional suffering for the applicant.", "140. The Court considers that the applicant ’ s suffering had a dimension and character which went beyond the suffering inflicted by grief following the death of a close family member. The Court has already found a violation of Article 8 of the Convention because, as the closest relative, the applicant had a right to express consent or refusal in relation to tissue removal, but the corresponding obligation or margin of discretion on the part of the domestic authorities was not clearly established by Latvian law and there were no administrative or legal regulations in this respect (see paragraphs 10 9 -1 6 above). While there are considerable differences between the present case and the above-cited Petrova case as concerns the scale and magnitude of the organ or tissue removal, the Court has nonetheless noted in both cases certain structural deficiencies which have prevailed in the field of organ and tissue transplantation in Latvia. These factors are also to be taken into account in the Latvian context as far as Article 3 of the Convention is concerned. In addition, not only were the applicant ’ s rights as the closest relative not respected, but she was also faced with conflicting views on the part of the domestic authorities as to the scope of the obligations enshrined in national law. Furthermore, while the security police and various prosecutors disagreed as to whether or not domestic law was sufficiently clear to allow a person to be prosecuted on the basis thereof, they all considered that removal without consent was unlawful (see paragraphs 18, 20, 22, 24 and 25 above). However, criminal prosecution had become time-barred by the time their disagreement had been resolved (see paragraph 27 above) and, in any event, the domestic court would not have allowed such a prosecution because the law was not sufficiently clear (see paragraph 28 above). These facts demonstrate the manner in which the domestic authorities dealt with the complaints brought to their attention and their disregard vis-à-vis the victims of these acts and their close relatives, including the applicant. These circumstances contributed to feelings of helplessness on the part of the applicant in the face of a breach of her personal rights relating to a very sensitive aspect of her private life, namely giving consent or refusal in relation to tissue removal, and were coupled with the impossibility of obtaining any redress.", "141. The applicant ’ s suffering was further aggravated by the fact that she was not informed of what exactly had been done in the Forensic Centre. She was not informed of the tissue removal and, having discovered that her deceased husband ’ s legs were tied together on the day of the funeral, assumed this to be a consequence of the car accident. Two years later she was informed of the pending criminal inquiry and the potentially unlawful acts carried out in respect of her deceased husband ’ s body. It is clear that at this point the applicant experienced particular anguish and realised that her husband might possibly have been buried with his legs tied together as a consequence of the acts that had been carried out in the Forensic Centre on his body. The Government ’ s argument that this was not proved “beyond reasonable doubt” is misplaced, since the applicant ’ s complaint relates to the anguish resulting from precisely that uncertainty regarding the acts carried out at the Forensic Centre in respect of her deceased husband ’ s body.", "142. In the special field of organ and tissue transplantation it has been recognised that the human body must still be treated with respect even after death. Indeed, international treaties including the Convention on Human Rights and Biomedicine and the Additional Protocol, as noted in the Explanatory Report to the latter, have been drafted to safeguard the rights of organ and tissue donors, living or deceased. The object of these treaties is to protect the dignity, identity and integrity of “everyone” who has been born, whether now living or dead (see paragraph 37 above). As cited in paragraph 133 above, respect for human dignity forms part of the very essence of the Convention; treatment is considered “degrading” within the meaning of Article 3 of the Convention when, inter alia, it humiliates an individual, showing a lack of respect for human dignity. The applicant ’ s suffering was caused not only by the breach of her rights as the closest relative and the ensuing uncertainty regarding what had been done in the Forensic Centre, but was also due to the intrusive nature of the acts carried out on her deceased husband ’ s body and the anguish she suffered in that regard as his closest relative.", "143. In these specific circumstances, the Government ’ s objections that the applicant ’ s complaint does not fall within the scope of Article 3 of the Convention and that she cannot be considered a victim in that regard are dismissed. The Court has no doubt that the suffering caused to the applicant in the present case amounted to degrading treatment contrary to Article 3 of the Convention. It accordingly finds a violation of that provision.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "144. Lastly, the applicant relied on Article 13 of the Convention in connection with her contention that there were several possible interpretations of domestic law.", "145. The Government contested that argument.", "146. The Court notes that this complaint is linked to the complaint examined above under Article 8 of the Convention and must therefore likewise be declared admissible.", "147. The Court considers, however, that it has already examined the lack of clarity of the domestic law under Article 8 of the Convention above. Accordingly, it does not consider it necessary to examine this complaint separately under Article 13 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "148. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "149. The applicant claimed 40,000 euros (EUR) in respect of non-pecuniary damage.", "150. The Government argued that the applicant had not sufficiently demonstrated that she had sustained non-pecuniary damage to the extent claimed and deemed the amount claimed by her excessive and exorbitant. With reference to Shannon v. Latvia (no. 32214/03, § 84, 24 November 2009), the Government considered that the finding of a violation alone would constitute adequate and sufficient compensation.", "151. Having regard to the nature of the violations found in the present case and deciding on an equitable basis, the Court awards the applicant EUR 16, 000 in respect of non-pecuniary damage.", "B. Costs and expenses", "152. The applicant also claimed EUR 500 for the costs and expenses incurred before the Court.", "153. The Government did not contest the applicant ’ s claim under this head. They considered it sufficiently substantiated and reasonable.", "154. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 500 covering costs under all heads.", "C. Default interest", "155. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "THE CIRCUMSTANCES OF THE CASE", "2. The applicant was born in 1974 and lives in Bregenz. She was represented by Mr K.P. Pichler, a lawyer practising in Dornbirn.", "3. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Ambassador, Head of the International Law Department at the Austrian Ministry for European and International Affairs.", "The birth and death of the applicant’s son", "4. The applicant became pregnant in 2006 and received medical treatment at the Feldkirch Regional Hospital ( Landeskrankenhaus – hereinafter, “the hospital”), a public hospital.", "5. The prenatal examinations carried out in that hospital indicated that the foetus showed clear symptoms of “Prune-Belly-Syndrome” and thus would likely be born with a disability.", "6. “Prune-Belly-Syndrome” is a birth defect which is classified as a rare disease, the cause of which is not yet known, although there are several theories. Essential characteristics are, inter alia, wrinkled skin over the abdomen, a lack of abdominal musculature, serious malformations of the urinary tract and undescended testicles. In addition, other malformations of the body may occur. It is possible to detect via ultrasound before birth whether a foetus shows these characteristics.", "7. Apart from that preliminary diagnosis, the applicant did not have enough amniotic fluid in the womb. She was informed that her child would most likely not survive. The attending physician at the hospital, Dr Sch., spoke with the applicant concerning a possible need for a post-mortem examination of the body of her as yet unborn child, to clarify the exact cause of death but also to assess whether such a malformation could occur in another child (in particular the offspring of siblings already born). The applicant and her husband refused to agree to a post-mortem examination for religious reasons. They explained that, in accordance with their Muslim beliefs, they wished to ritually wash the corpse prior to the funeral. For that purpose, the corpse had to remain as unscathed as possible.", "8. The applicant gave birth to her son, Y.M., in the hospital on 3 April 2007. It was a premature birth, which took place in the twenty-fifth week of the pregnancy. The child weighed less than 900 grams at that time. Y.M. received intensive medical care but died two days later on 5 April 2007 from a cerebral haemorrhage.", "9. After Y.M.’s death, the applicant and her husband were asked again whether they would agree to a post-mortem examination. The doctors explained to her that that was necessary in order to determine the exact cause of death. Moreover, as the disease could possibly be genetic, it was in the interests of the child´s already born and future siblings to assess whether Prune-Belly-Syndrome was likely to arise in any future pregnancies. The applicant and her husband refused to give their consent. The primary physician Dr S. told them that it would be carried out nonetheless, in order to clarify the diagnosis.", "The post-mortem examination", "10. On 6 April 2007, the post-mortem examination was performed at the hospital. The relevant provisions – section 25 of the Hospital Act ( Kranken ‑ und Kuranstaltengesetz – hereinafter “the Hospital Act”) and section 12(3) of the Dead Body and Funeral Act of the Land of Vorarlberg ( Vorarlberger Gesetz über das Leichen- und Bestattungswesen – hereinafter “the Funeral Act”) – do not specify that the consent of relatives of a deceased person is required in order for a post-mortem to be carried out, provided that it is necessary for the safeguarding of scientific interests ( wissenschaftliches Interesse ), in particular to clarify a diagnosis (see paragraphs 38 and 42 below).", "11. A detailed post-mortem report was drawn up. It was noted that the parents had objected to the intervention, but that it had been performed nonetheless because of the uncertain pathology of several organs, which the paediatricians had not been able (in the absence of a post-mortem) to classify with complete certainty. The report confirmed the diagnosis reached before birth – namely that Y.M. had suffered from “Prune ‑ Belly ‑ Syndrome”. The report was initially not issued to the applicant.", "12. During the post-mortem examination, practically all the internal organs were removed from the child’s body and preserved at the hospital for a comprehensive assessment. This was considered to be necessary because an accurate detection of the pathological changes of the organs is considered easier after formalin fixation. A large part of the urinary tract was removed, too, which meant that the sex of the child was not apparent anymore. The body was filled with cotton wool in order to soak up blood and other body liquids.", "13. The applicant was informed that a post-mortem examination had taken place. She was upset, and on 8 April 2007, 5.10 h, she went to the police and reported that the hospital had examined her son’s body without her consent.", "14. The hospital handed over their son’s corpse to the applicant and her spouse after 8 April 2007. They were not informed about the extent of the post-mortem. The applicant was under the impression that only a “small cut” ( kleiner Schnitt ) had been made. The corpse was completely dressed and was wearing a cap at the time. The face was haggard, but it was not discernible from the clothed corpse whether a post-mortem examination had taken place (and if so, how extensive it had been) or that organs had been removed.", "15. The applicant and her husband thus believed that the body was in an appropriate state to be taken to Turkey and to be buried in accordance with their Muslim beliefs. Their deceased child was brought to their home village for the funeral. The transfer was organised by a Turkish association who obtained the necessary documents from the district authorities. There is no information in the file how and on which date this transfer was carried out.", "The funeral in Turkey of the applicant’s son", "16. During the funeral ceremony, which took place at an unknown date in the applicant´s home village in Turkey, about 100-300 guests were present. The body of the child was undressed by the wife of the Hodja (Turkish for “learned man” – the religious person performing the ceremony) and the applicant herself. During that procedure, the two women noticed that the deceased child had undergone a full body post-mortem – that is to say the whole body and head had been cut open and sewn back together. It was noticeable that the internal organs of the child had been removed, as the body was stuffed with cotton wool. The genitals were not recognisable (see paragraph 12 above). Besides, the corpse was in a poor condition as a result of the decomposition that had already taken place in the meantime.", "17. At the sight of the state of the child’s body, both women were left in a state of shock and the applicant fainted. She then started to scream and cry and was inconsolable. The guests rushed to see the body, resulting in turmoil. Since the genitals of the deceased child were no longer identifiable, the ritual washing could not take place (because there are different washing rituals for male and female deceased), and the funeral had to be cancelled. The applicant and her husband were reproached by the guests owing to the bad condition of the body. They had to leave their home village the next day. They stated that they had had incurred significant costs because the funeral ceremony had been halted.", "18. The deceased child then had to be buried in another community, without the ritual washing and the ceremony required by the applicant’s Muslim faith. The applicant and her husband had to bear the additional costs of this funeral.", "The return of Y.M.’s organs", "19. After the applicant returned to Austria, she asked the hospital that the organs of her deceased child be returned to her. The hospital initially denied that any organs from the body had been removed. Upon the intervention of the Vorarlberg Patients’ Ombudsperson ( Patientenanwalt ), on 24 April 2007 the hospital agreed to return some (but not all) of the removed organs, so that they could be buried with the rest of the body.", "20. Only on 1 October 2007, upon further intervention by the Vorarlberg Patients’ Ombudsperson, did the applicant receive the remainder of the organs. She buried these, too, in her son’s grave in Turkey.", "The ensuing civil proceedings for damages", "21. On 30 March 2010 the applicant lodged a civil claim for damages against the Vorarlberg Hospital Operating Company Ltd. ( Krankenhaus Betriebsgesellschaft mbH ), the owner of the hospital – namely for the costs of the halted burial ceremony, the trips to Turkey in order to bury the child’s organs after they had been returned, and compensation for non-pecuniary damage for mental pain and suffering, as well as the future costs of psychological treatment. She alleged that: her child’s body had not been treated with the appropriate dignity; the post-mortem had been performed despite her objections on religious grounds; and it had been in any case unlawful to remove the organs, as she had not agreed to their removal. She furthermore alleged a failure to comply with the doctors’ duty to properly inform her of the post-mortem on her child’s body and of its extent, which had caused her post-traumatic stress disorder.", "22. The defendant responded that the post-mortem examination had been justified since (i) only histological proof of severe lung hypoplasia could have shown that the death could not have been prevented, and (ii) without such an examination, an absolute confirmation of the diagnosis of “Prune ‑ Belly-Syndrome” (as opposed to a similar kind of malformation) would not clinically have been possible. Moreover, an analysis of the reasons for the death of a newborn was a vital tool for lowering newborn mortality rates. In the defendant’s view, there had been no conduct on the part of the treating doctors that could have given rise to liability for damages.", "The first round of proceedings", "23. In the first round of proceedings, the Feldkirch Regional Court ( Landesgericht ) allowed the applicant’s claim by a judgment of 9 July 2012. The court noted that it was true that the post-mortem examination had been necessary for a safe diagnosis of Prune-Belly-Syndrome because it could have been mistaken for another disease on the basis of the symptoms alone. A prerequisite for conducting a post-mortem on a child without the parents’ consent was, however, not only the existence of diagnostic uncertainty, but also a scientific interest in so doing. The court concluded that there had been no such scientific interest in respect of the present case. The post-mortem had only been carried out because the doctors had wanted to satisfy their curiosity ( Neugierde befriedigen ) about this very rare disease; however, that had not constituted proper justification for conducting a post-mortem examination without first securing the consent of the close relatives, pursuant to section 25 of the Hospital Act.", "24. A psychiatric expert opinion ordered by the Feldkirch Regional Court concluded that the applicant was suffering from post-traumatic stress disorder, which was connected to the post-mortem of her deceased child and the manner in which she had found out about it. While the death of her newborn in itself had constituted a significant cause of stress, the applicant described the events at the child’s funeral as the trigger for a feeling of acute stress, which in turn had led to her post-traumatic stress disorder. The psychiatrist who examined her stated that the sight of the disfigured body must have significantly surpassed that which a non-medical professional would have expected.", "25. The defendant lodged an appeal against that judgment with the Innsbruck Court of Appeal ( Oberlandesgericht ); the appeal was allowed on 8 November 2012. The Court of Appeal found that there had been a procedural defect, given the fact that the first-instance court had failed to obtain two expert opinions that it had ordered relating to the fields of pathology and neonatology. It therefore remained to be determined whether the post-mortem examination – which had clearly been carried out against the applicant’s will – had been permissible, within the meaning of section 25 of the Hospital Act. The case was remitted to the first-instance court in respect of that question, for a new decision.", "The second round of proceedings", "26. In the second round of proceedings, the above-mentioned expert opinions were obtained by the Feldkirch Regional Court.", "27. Dr V., an expert paediatrician, noted that there had been two reasons for conducting a post-mortem: firstly, to determine whether Y.M. had really been suffering from Prune-Belly-Syndrome, an illness not yet sufficiently explored, and second, as a measure of quality control in view of the intensive medical interventions that had been performed before and after his birth. Dr V. noted that neither the post-mortem report nor the personal file of Y.M. contained an indication regarding which scientific questions had been expected to be answered by the post-mortem or what methods had been used. It was not known whether the information obtained had been used for the furtherance of science – for example, whether it had been published. The expert concluded that the necessity for a post-mortem had possibly been indicated by the need to evaluate the intensive-care measures that the patient had received, but that there was no documentation confirming that in Y.M.’s file. The diagnosis of Prune-Belly-Syndrome could be confirmed through the post-mortem. However, it was not apparent whether the post-mortem had touched specific scientific questions or that it served the research into new forms of disease, their causal course or combating infant mortality.", "28. Dr L., an expert pathologist, stated that Prune-Belly-Syndrome was a very rare, complex, insufficiently explored disease. According to Y.M.’s patient file, the reason for the post-mortem examination had been to clarify alterations in the belly, lungs and brain that had not been clearly identifiable. Under Austrian law, the post-mortem had therefore been required in order to clarify the quality of the diagnostic and therapeutic measures taken before his death. Dr L. found, moreover, that the post ‑ mortem had been carried out in an appropriate and professional manner and that a comprehensive report had been prepared. Filling the body with cotton wool or a similar material was necessary after a post-mortem in order to soak up blood and other body liquids. Removing the organs had been necessary in the interests of science, as malformations were more easily detected when the organs in question were preserved outside the body, which took between one and two days. In the case of post-mortem examinations of foetuses or deceased newborns, the removal and preservation of the organs was indispensable and therefore standard practice. Dr L. further explained that in the case of the Prune ‑ Belly ‑ Syndrome, the exact role ( Beteiligung ) of the organs was not sufficiently explored and therefore still needed to be documented. The body was usually released for burial immediately after the post-mortem examination, although the organs might still have to be examined. Waiting for the organs to be released would unnecessarily delay any subsequent funeral. He concluded that the provisional removal of Y.M.’s organs had been part of standard post-mortem procedure and thus lege artis. As to the state of the body at the funeral, Dr L. explained that the pictures on file were of bad quality and did not allow any exact evaluation. However, the fact that Y.M.’s corpse had been transported to Turkey without being preserved, and given that several days had passed between his death and the ceremony, the corpse must have shown signs of decay at that point.", "29. On 13 August 2014 the Feldkirch Regional Court again allowed the claim and held that the hospital was to pay the applicant the full sum claimed in damages – namely 58,500 euros (EUR), the costs of the proceedings (EUR 29,105.52), and compensation for any future damage (such as the cost of future psychiatric care of the applicant) arising from the post-mortem examination of Y.M. It reiterated that there had been an indication that a post-mortem examination was needed because of the above-mentioned diagnostic uncertainty. Such an indication, however, did not mean that it was permitted to carry out a post-mortem examination without the consent of the deceased’s relatives. For such an examination to take place without the relatives’ consent, there had additionally to be a scientific interest in so doing under section 25 of the Hospital Act. Since it had not been asserted that there was any scientific interest in the post-mortem being conducted, it should not have been carried out against the will of the applicant and her husband. The court found that in the event that the post-mortem examination had been lawful, it would have been irrelevant that Muslim practice had demanded that the corpse remain intact. It furthermore held that even assuming that such a scientific interest had existed, the hospital staff would still have been obliged to inform the applicant in detail of how the post-mortem had been carried out (in particular of its scope) and to warn her of the external appearance of the body. The psychiatrist had stated in his expert opinion (see paragraph 24 above) that the applicant would most likely not have suffered post-traumatic stress disorder if she had at least been informed that a post-mortem examination had been carried out and that the organs had been removed. The court accordingly held that the unlawful behaviour of the doctors had caused the shocked reaction of the applicant, which is why the hospital was liable to pay damages.", "30. On 4 December 2014 the Innsbruck Court of Appeal allowed an appeal lodged by the hospital and dismissed the applicant’s claim. It held that the applicant was to refund the hospital the costs and expenses for its legal representation in the amount of EUR 29,963.96 for the proceedings in the first instance, and EUR 2,832.96 for the appeal proceedings (thus EUR 32,796.92 in total). It found that the lower-instance court had not properly taken into account the two expert opinions on the post-mortem examination, which had concluded that it had in fact been performed in accordance with the law. The Court of Appeal noted that an indispensable prerequisite for the defendant to be held liable for damages was that doctors in its employ be shown to have acted unlawfully. The post-mortem examination had, however, been carried out lawfully because there had been a scientific interest in ascertaining that the diagnosis had been correct (for example, in view of the fact that “Prune-Belly-Syndrome” shared certain symptoms with other, similar complaints). Moreover, there had not been an obligation to inform the applicant of the state of her son’s body after the examination. The reason for the post-mortem had been, in particular, the unclear clinical diagnosis and the need to assess the quality of the pre- and postnatal treatment administered. It was irrelevant whether the results of the post-mortem had been used for the furtherance of scientific research or whether they had been publicised (which in the instant case they had not). The term “scientific interest” also included an interest in completing the personal file of the applicant’s son, Y.M., by confirming the initial diagnosis. The court furthermore held that the applicant had been informed by the hospital that the post-mortem would also be carried out without her consent (see paragraph 9 above). Concerning the removal of the organs, the court held that it was common knowledge that a post-mortem could also include the removal of organs, if necessary. In any event the applicant had not proved that the doctors had promised her, as she alleged, that the post ‑ mortem would only consist of a small four-centimetre-cut. The fact that the organs had only been returned to her later was irrelevant in that regard, as the applicant alleged that it was the events at her son’s funeral ceremony that had caused her post-traumatic stress disorder, not the late return of his organs.", "31. The applicant lodged an appeal on points of law with the Supreme Court, repeating the arguments submitted in her previous appeals, and adding that her rights under Article 9 of the Convention had been violated. She requested the Supreme Court to institute proceedings before the Constitutional Court to review the constitutionality of section 25(1) of the Hospital Act, and to request a preliminary ruling from the European Court of Justice in that respect.", "The Supreme Court’s final decision", "32. The Supreme Court ( Oberster Gerichtshof ) rejected the applicant’s extraordinary appeal on points of law on 25 September 2015. It noted that according to the clear wording of section 25(1) of the Hospital Act and section 12(3) of the Funeral Act, the case’s lack of diagnostic clarity constituted an example of the kind of public and scientific interest that justified a post-mortem examination – even without the consent of the deceased’s relatives. Since the diagnosis in the case at issue could only have finally been confirmed by means of a post-mortem, the Innsbruck Court of Appeal had rightly taken the view that there had been a lack of diagnostic clarity, within the meaning of section 25 of the Hospital Act. The Supreme Court deemed that the relevant legal provisions were clear in that respect and that they therefore did not require further judicial interpretation. Moreover, the preparatory work on section 25 of the Hospital Act (see paragraph 39 below) showed that the aim of the legislature had been to enable the furtherance of scientific knowledge, without imposing a requirement that any knowledge thus acquired should then be, in a narrower sense, “scientifically processed” ( wissenschaftlich verwerten ).", "33. As regards the alleged infringement of Article 9 of the Convention, the Supreme Court found that carrying out the post-mortem against the applicant’s will had constituted an interference with her rights under that provision. However, in the light of its importance for the development of medicine and in order to assess the quality of the medical treatment provided in the instant case, it had been in the interest of public health to eliminate any diagnostic ambiguities by carrying out a post-mortem. The post-mortem had thus pursued a legitimate aim justifying a possible restriction of the exercise of religion within the meaning of Article 9 § 2 of the Convention. The Supreme Court saw no reason to institute proceedings before the Constitutional Court to review the provisions in question, or to request a preliminary ruling from the European Court of Justice.", "34. Turning to doctors’ duty to inform relatives of a post-mortem, the Supreme Court noted that the existence and scope of that duty depended on the circumstances of the individual case. It did not consider that its case-law (regarding the comprehensive medical duty to disclose information) had been applicable to the present case, as it had not affected the right to self ‑ determination of the patient himself. Moreover, the duty to disclose information was aimed at preventing any potential future damage. The Supreme Court conceded that the way in which post-mortem examinations were carried out, and the fact that organs were removed from the corpse in the case of a post-mortem carried out on a newborn, was not common knowledge, but it held that it did not appear unpredictable or highly surprising either. It found that doctors therefore rightly refrained from giving detailed explanations. In addition, the omission of such detailed explanations – which could also be burdensome for a relative – were not very likely to cause any psychological impairment to a relative of the subject of a post-mortem. Regard had to be had to the state of the body of the applicant’s son when it had been handed over to her, which appeared to have been much less shocking than its state at the funeral. The specific religious background of the case could not change that assessment.", "35. The Supreme Court’s decision was served on the applicant on 20 October 2015.", "RELEVANT DOMESTIC LAW AND PRACTICE", "36. Article 17 of the Basic Law ( Staatsgrundgesetz ) of 1867 reads:", "“Science and its teaching are free. ...”", "37. Section 5a of the Hospital Act, as in force at the relevant time, concerned patients’ rights. It stipulated, among other things, that hospitals had to ensure that patients could exercise their right to clarification and information regarding their treatment options (including the risks in respect of those options). Upon a patient’s demand, medical information should be provided by a doctor in (as far as possible) a comprehensible and sensitive manner.", "38. Section 25(1) of the Hospital Act stipulates that corpses of patients who have died in public hospitals shall be examined post mortem if a post ‑ mortem has been ordered by the sanitary police ( Sanitätspolizei ) or during criminal proceedings, or if it is necessary for the safeguarding of other public or scientific interests – in particular because the case is not diagnostically clear or there has been a surgical intervention. In all other cases, a post-mortem may only be carried out with the consent of the deceased’s closest relatives, unless the deceased agreed to it while still alive, pursuant to section 25(2) of the Hospital Act. In respect of each post ‑ mortem, a written statement shall be prepared and preserved in the medical history of the deceased (section 25(3) of the Hospital Act).", "39. The preparatory work on section 25 of the Hospital Act (AB 164 BlgNR VIII. GP. 10; 1956) notes in this respect that the development of modern medicine was only possible through the opening of corpses of the deceased in hospitals in order to clarify beyond doubt the morphological causes of many diseases. The practical value of post-mortem examinations stemmed from the fact that the doctor treating the patient could not only review his or her own diagnosis and the therapy applied, but also determine the reasons for any failure thereof. Thanks to the fact that post-mortem examinations are a regular occurrence, the health authorities also obtain reliable information about the existence and frequency of individual diseases and causes of death and may thus take general measures designed to prevent or combat such diseases. In addition, the result of a post-mortem may turn out to be highly valuable for the relatives of the deceased, since the clarification of often minor additional findings may give rise to important conclusions pointing to peculiarities in the constitution of family members that encourage the development of certain diseases. If such peculiarities become known to the medical community, then it is possible to prevent unfavourable health developments at an early stage.", "40. Even before the adoption of the Hospital Act, autopsy law had a long tradition in Austria. Since 1867, it is perceived as an integral part of the constitutionally guaranteed freedom of science (see paragraph 36 above). The motto “mors auxilium vitae” not only adorns many buildings housing university departments for anatomy and pathology, but expresses a long-standing concept of overriding importance of public interests in science and health care by excluding rights of individuals to object against an autopsy, at least if it is performed in a public hospital (see Kopetzki, C. Obduktionen im wissenschaftlichen Interesse: Rechtlicher Rahmen und verfassungsrechtliche Grenzen, in Kopetzki/Körner (ed.), Leichenöffnung für wissenschaftliche Zwecke (2021), p. 88). The scope of “scientific interests” in section 25 of the Hospital Act (see paragraph 38 above) is subject of a vivid academic discussion ( ibid., pp. 106 onwards).", "41. Under section 3(2) of the Funeral Act, it is for relatives – unless the deceased issued instructions before his or her death – to determine in particular the nature and place of the funeral and to give their consent to an opening of the deceased’s corpse that has not been ordered by the Public Prosecutor’s Office or the local mayor or is not provided for in section 12(3) of the of the Funeral Act (see below). Unless the deceased issued an order to the contrary while still alive, his/her relatives may, instead of a funeral, leave the corpse to an institution devoted to scientific or medical research and education, for the purposes of determining the causes of diseases or of research into methods of curative treatment.", "42. Under section 12(3) of the Funeral Act, a post-mortem of the corpse of a patient who has died in a public hospital must be carried out, inter alia, if the opening of the corpse in question is necessary in order to safeguard public or scientific interests – in particular if the case is diagnostically unclear or if there has been a surgical intervention.", "43. Under section 13(4) of the Funeral Act a written report must be prepared regarding the opening of a corpse, which apart from the deceased’s personal details, must contain the pathological findings in respect of the corpse and the cause of death. The written report must be signed by the doctor who carried out the post-mortem. If a patient died in a hospital and his or her corpse was opened, a copy of the relevant written report shall be annexed to his or her medical history. Under section 13(5) the opening must be carried out in such a manner as not to constitute a risk to health, nor to violate the sense of respect for the deceased’s remains. Under section 65, anyone who violates the above-mentioned provisions of the Funeral Act shall be punished by a fine of up to EUR 2,000.", "44. An ordinance issued by the Sanitary Authority of the Vorarlberg Regional Government on 14 January 2003 aimed at combating infant mortality expressly stipulates that:", "“... in most cases of infant death, a sanitary-police post-mortem is necessary from a professional point of view, except where the cause is clearly discernible (for example, in the case of accidents [or] for forensic reasons ...). In all other cases, the cause of death in particular (especially in the case of babies [who die] away from hospital – for example, [of] sudden infant death syndrome) can be determined only by opening the corpse ... A circle of experts will then consider the adduced documents, information and data ..., [and] – on the basis of an analysis and discussion of each individual instance of an infant’s death – will draft proposals for the further reduction of infant mortality.”", "45. Section 30(2) of the Hospital Act of the Land of Vorarlberg ( Vorarlberger Gesetz über Krankenanstalten ) stipulates that hospitals shall ensure that patients are able to exercise their right to receive an understandable and sufficient explanation and information regarding the diagnosis and possibilities for treatment (and attendant risks) in order that they may be able to actively participate in decisions affecting their state of health. Information about their state of health and the progress of treatment must be provided to them (or, at their request, to a person that has their confidence) by a physician in – as far as possible – an easily understandable and gentle manner, having regard to the personality of the patient. Moreover, patients are entitled to inspect their own medical records and to receive a copy thereof, to careful and respectful treatment and (should they so request) to pastoral care and psychological support.", "46. In order to safeguard patients’ rights and interests, there is an Information and Complaints Office in each hospital in Vorarlberg, in accordance with section 3 of the Protection of Patients and Clients Act of the Land Vorarlberg ( Vorarlberger Patienten- und Klientenschutzgesetz ); such offices have to consider complaints about accommodation, care and health treatment, examine suggestions for improvement, and provide information about patients’ stays in the hospital in question. In addition, an independent Patients’ Ombudsperson (who is not subject to any kind of control) and an arbitration commission tasked with hearing disputes involving damage caused to patients and clients (hereinafter, “the Arbitration Commission”) have been established. Under section 5 of the Act, the Patients’ Ombudsperson has the task of providing advice and information to patients and clients (and persons enjoying their confidence) free of charge, to consider complaints about accommodation, care and health treatment, to assist patients and clients before the Arbitration Commission (section 7 et seq.) and to grant patients compensation for injuries or damage caused by the hospital (section 6)." ]

[ "THE LAW", "ALLEGED VIOLATION OF ARTICLES 8 AND 9 OF THE CONVENTION RELATING TO THE POST-MORTEM EXAMINATION", "47. The applicant complained under Articles 8 and 9 of the Convention that the carrying out of the post-mortem on her son’s body against her will had violated both her right to respect for her private and family life and her right to freedom of religion, and that the domestic courts had not conducted a balancing exercise regarding the conflicting interests in that respect.", "Article 8 reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 9 reads as follows:", "“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”", "AdmissibilityApplicability of Article 8 of the Convention", "Applicability of Article 8 of the Convention", "Applicability of Article 8 of the Convention", "48. The Court observes that the exercise of Article 8 rights concerning family and private life pertains, predominantly, to relationships between living human beings. However, the possibility cannot be excluded that respect for family and private life extends to certain situations after death (see Sargsyan v. Azerbaijan [GC], no. 40167/06, § 255, ECHR 2015; Jones v. United Kingdom (dec.), no. 42639/04, 13 September 2005). In the cases of Petrova v. Latvia (no. 4605/05, § 77, 24 June 2014) and Elberte v. Latvia (no. 61243/08, § 89, ECHR 2015) the Court recognised that the removal of a deceased relative’s organs or tissues without consent fell within the scope of the “private life” of the surviving family members.", "49. The Court notes that the Government did not contest the applicability of Article 8. Having regard to its case-law, the Court sees no reason to come to a different conclusion. It considers that the complaint relating to the performance, against the applicant’s will, of the post-mortem examination conducted on her son comes within the scope of Article 8 in so far as her right to respect for her private and family life is concerned. This Article is therefore applicable in the present case.", "Applicability of Article 9 of the Convention", "50. The Court reiterates that freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one’s religion alone and in private, or in community with others, in public and within the circle of those whose faith one shares. Article 9 of the Convention lists a number of forms that manifestation of one’s religion or belief may take – namely worship, teaching, practice and observance. Nevertheless, Article 9 does not protect every act motivated or inspired by a religion or belief (see Johannische Kirche and Peters v. Germany (dec.), no. 41754/98, 10 July 2001).", "51. The Court has previously held that the manner of burying the dead represents an essential aspect of religious practice and falls under the right to manifest one’s religion within the meaning of Article 9 § 2 of the Convention ( ibid. ). Article 9 is therefore applicable to the applicant’s complaint that the post-mortem had been carried out against her declared religious convictions, as she submitted that it had prevented her from burying her son in accordance with her beliefs.", "Conclusion", "52. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "MeritsHas there been an interference with the applicant’s rights?", "Has there been an interference with the applicant’s rights?", "Has there been an interference with the applicant’s rights?", "53. The Court considers that the post-mortem of the corpse of the applicant’s deceased son, carried out despite her and her husband’s objections, could be regarded as impinging on her relational sphere in such a manner and to such a degree as to disclose an interference with her right to respect for her private and family life under Article 8 of the Convention (compare Solska and Rybicka v. Poland, nos. 30491/17 and 31083/17, § 110, 20 September 2018).", "54. As regards Article 9 of the Convention, the Court has held that in their activities, religious communities abide by rules that are often seen by followers as being of divine origin. Religious ceremonies have their meaning and sacred value for believers if they have been conducted by ministers empowered for that purpose, in compliance with those rules. Participation in the life of the community thus constitutes a particular manifestation of their religion, which is in itself protected by Article 9 (see İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 111, 26 April 2016). The Court considers that the applicant burying her son in accordance with her Muslim beliefs, which required the body to remain unscathed, constituted a manifestation of her religion.", "55. Regard being had to its case-law and the above-mentioned circumstances of the case, the Court finds that the post-mortem conducted on the body of the applicant’s son against her will and against her declared religious convictions constituted an interference with her “private” and “family life” within the meaning of Article 8 of the Convention, as well as her right to manifest her religion under Article 9 of the Convention.", "Was the interference justified?", "56. In order to be justified under Articles 8 § 2 and 9 § 2 of the Convention, any interference must be in accordance with the law, pursue one of the listed legitimate aims and be necessary in a democratic society ( ibid., § 98).", "(a) Accordance with the law", "57. The applicant did not dispute that holding the post-mortem had been in accordance with the law.", "58. The Government argued that Article 8 of the Convention did not per se stipulate that a domestic legal regulation – if formulated with sufficient clarity – required in any event the consent of the relatives of the deceased in question in order for a post-mortem examination to be carried out (with reference to the above cited judgments in the cases of Petrova and Elberte ). They contended that section 25 of the Hospital Act complied with the clarity requirements.", "59. The Court reiterates that the expression “prescribed by law” in Articles 8 § 2 and 9 § 2 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects. However, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among many other authorities, Delfi AS v. Estonia [GC], no. 64569/09, § 120, ECHR 2015).", "60. The Court observes that the post-mortem was carried out on the basis of section 25 of the Hospital Act and section 12(3) of the Funeral Act. The domestic courts based their assessment of the applicant’s case on those provisions (see paragraphs 38 and 42 above). Given that the Court sees no valid reason to question the interpretation of those provisions by the domestic courts, it accepts that the interference complained of was “prescribed by law”.", "(b) Legitimate aim", "61. While the applicant conceded that post-mortem examinations might serve the aim of the protection of health, she argued that her son’s post ‑ mortem had not contributed to the advancement of science or to the attainment of new findings, but in the end had only served to confirm his individual diagnosis. Hence, this legitimate aim had not been achieved in the instant case.", "62. The Government submitted that section 25 of the Hospital Act served a legitimate aim – namely the protection of health, which was rendered clear by the preparatory work on that provision:", "- Firstly, a post-mortem examination often constituted the only possibility for the doctor in charge to review his/her own diagnosis and applied therapy. Moreover, the reasons for a failure in treatment could also be determined as a result of a post-mortem examination.", "- Secondly, post-mortem examinations carried out systematically permitted the collection of secure data by the health authorities regarding the existence and frequency of individual diseases and causes of death, thus enabling them to take general preventive and combative measures.", "- Thirdly, the result of a post-mortem examination could also be particularly valuable for the relatives of the deceased, since it often provided essential indications of genetic predispositions towards certain diseases, thus permitting early prevention.", "63. The Government submitted that post-mortem examinations were therefore not only important in order to achieve diagnostic clarity and quality control; the examination of the exact nature of Y.M.’s illness could also – by detecting any possible genetic defects – be important for the applicant and any offspring that she might have in the future.", "64. The Government argued that the Austrian Supreme Court had thus rightly noted in its judgment in respect of the instant case that the legal aim of the provisions referred to was to enable experts to acquire additional (medical) knowledge without there having to be a prior intention or possibility on the part of those experts to use data and information obtained in any individual case for strictly scientific purposes. The interests of living individuals were thus given more weight than those of the deceased, in accordance with the principle mors auxilium vitae.", "65. The Court notes that the Supreme Court has held that the aim of the protection of public health could also be served by eliminating any diagnostic ambiguities (see paragraph 33 above), as has been the case with the applicant’s son. The Court therefore accepts that the post-mortem was conducted for the safeguarding of scientific interests and served the legitimate aim of the protection of the health of others, as extensively demonstrated by the Supreme Court’s reasoning as well as the Government’s submissions above.", "(c) Proportionality of the interference", "(i) The applicant’s submissions", "66. The applicant alleged that the post-mortem and the removal of the organs had not been conducted lege artis, which constituted per se a violation of Article 9 of the Convention, as the body of Y.M. had thereby been disfigured.", "67. Furthermore, the applicant argued that the conducting of a balancing exercise was not provided in section 25 of the Hospital Act or section 12 of the Funeral Act, and had not been conducted in respect of her case, either. The law did not provide for any possibility to object to post-mortem examinations for religious reasons.", "68. The applicant maintained that the post-mortem of Y.M. had been ordered without any medical necessity. The above-mentioned expert, Dr V., had confirmed in his opinion that the results of the post-mortem had not been entered into the personal file of the deceased Y.M., and had not resulted in any new medical discoveries. Consequently, it had not served the aim of advancing public health or safety. The post-mortem had merely served to confirm the diagnoses already arrived at. The applicant contended that the aim of quality control had not been proportionate to such a severe interference with her rights under Articles 8 and 9 of the Convention.", "(ii) The Government’s submissions", "69. The Government submitted that the Austrian legislature had struck a fair balance of interests in the relevant provisions (section 25 of the Hospital Act and the corresponding section 12(3) of the Funeral Act – see paragraphs 38 and 42 above), defining for the purposes of the protection of health those cases where, in a public hospital, a post-mortem examination had to be carried out in any event and there was no room for discretion in respect of any individual case. If the doctor treating a patient found that there was a scientific interest (in particular, in view of a lack of diagnostic clarity) in conducting a post-mortem examination following that patient’s death, the individual interests of the relatives of that patient had to be disregarded. The applicable legal provisions ensured in any event that post-mortem examinations would be carried out only to the absolutely necessary extent.", "70. The Government submitted that at all three levels of jurisdiction the domestic courts had considered the applicant’s submissions carefully and comprehensively, examining point by point whether the physicians’ activities had been in conformity with the law. The courts had examined all the relevant evidence, heard numerous witnesses (including the doctors involved and other physicians), consulted the Patients’ Ombudsperson, and obtained several expert opinions. It was for the national courts to weigh evidence; that the courts had made a mistake in this respect was not discernible.", "71. The Government reiterated that both the domestic courts and the experts in their opinions had unanimously come to the conclusion that the diagnosis had been unclear within the meaning of section 25 of the Hospital Act. It was true that a diagnosis of Prune-Belly-Syndrome had been strongly indicated. However, a final confirmation of that diagnosis – especially in view of the fact that some symptoms were common to other, similar malformations – had been possible only by means of conducting a post-mortem examination. A post-mortem had thus been carried out, on the one hand in order to clarify beyond doubt the cause of death, and on the other, to clarify whether such a disease might occur in any future siblings or in descendants of siblings already born. The post-mortem of the corpse of the applicant’s son had therefore been necessary for reasons of scientific interest within the meaning of section 25 of the Hospital Act and had been rightly carried out without the applicant’s consent. It could also be seen from the experts’ opinions that the post-mortem had been carried out lege artis and that a detailed, high-quality post-mortem report had been produced. The provisional removal and storing of organs outside a corpse was part of standard post-mortem procedure and necessary in order to safeguard scientific interests; in the case of the applicant’s son, it had been carried out in an appropriate and professional manner.", "72. The Government therefore took the view that the post-mortem of the corpse of the applicant’s son had not constituted a violation of her rights under Article 8 of the Convention.", "73. Referring to the Supreme Court’s findings on the issue (see paragraph 33 above), the Government submitted that there had been no violation of Article 9 of the Convention either.", "(iii) The Court’s assessment", "α. General principles", "74. The Court reiterates that in determining whether an impugned measure was “necessary in a democratic society”, it will consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among many other authorities, Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 179, 24 January 2017, with further references).", "75. In cases arising from individual applications the Court’s task is not to review the relevant legislation or practice in the abstract; it must as far as possible confine itself, without overlooking the general context, to examining the issues raised by the case before it ( ibid., § 180, with further references).", "76. According to the Court’s established case-law, the notion of necessity implies that the interference in question corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued, regard being had to the fair balance which has to be struck between the relevant competing interests (see A, B and C v. Ireland, cited above, § 229).", "77. In determining whether an interference was “necessary in a democratic society” the Court will take into account the fact that a margin of appreciation is left to the national authorities, whose decision remains subject to review by the Court for conformity with the requirements of the Convention (see X, Y and Z v. the United Kingdom, 22 April 1997, § 41, Reports 1997 ‑ II).", "78. The Court reiterates that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State when deciding any case under Article 8 of the Convention (see, among many other authorities, S.H. and Others v. Austria [GC], no. 57813/00, § 94, ECHR 2011; and Hämäläinen v. Finland [GC], no. 37359/09, § 67, ECHR 2014). Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will normally be restricted (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I). Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it (particularly where the case raises sensitive moral or ethical issues), the margin will be wider ( ibid., § 77; see also A, B and C v. Ireland, cited above, § 232). There will usually be a wide margin of appreciation accorded if the State is required to strike a balance between competing private and public interests or Convention rights (see Evans, cited above, § 77, and Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007 ‑ V; see also, mutatis mutandis, Vavřička and Others v. the Czech Republic [GC], no. 47621/13 and 5 others, §§ 275 and 280, 8 April 2021).", "79. In a case relating to an exhumation conducted against the will of the surviving family members for the purpose of a criminal investigation, the Court has held that the State authorities are required to find a due balance between the requirements of an effective investigation under Article 2 and the protection of the right to respect for private and family life of the parties to the investigation and other persons affected under Article 8. The Court has found, in that context, that the requirements of the investigation’s effectiveness have to be reconciled to the highest possible degree with the right to respect for private and family life. There may be circumstances in which exhumation is justified, despite opposition by the family (see Solska and Rybicka, cited above, § 121).", "β. Application to the instant case", "80. The Court considers that the case at issue concerns the regulation of post-mortem examinations in public hospitals and the question of whether and in which cases close relatives of the deceased should be granted the right to object to a post-mortem examination for reasons related to private life and religion where interests of public health clearly call for such a measure. It thus relates to sensitive moral and ethical issues, and requires a balance to be struck between competing private and public interests. The Court reiterates in this context that the Contracting States are under a positive obligation, by virtue of Article 8, to take appropriate measures to protect the health of those within their jurisdiction (see Vavřička and Others, cited above, § 282). Consequently, the State’s margin of appreciation must be considered to be wide.", "81. In particular, the present case required a balancing exercise between, on the one hand, the protection of the health of others through the conduct of the post-mortem examination (see paragraph 65 above) and, on the other, the protection of the applicant’s right to respect for her private and family life (Article 8) and her right to manifest her religion (Article 9).", "82. In the instant case, the applicant alleged, first of all, that her son’s post-mortem had not been carried out lege artis. However, the Court notes that the expert opinion issued by the pathologist, Dr L. (see paragraph 28 above) explicitly concluded that the post-mortem had been carried out lege artis. The Court sees no reason to question that finding.", "83. Secondly, the applicant alleged, essentially, that her religious convictions should have been taken into account by the hospital when deciding whether to carry out a post-mortem examination. She complained that no balancing exercise was provided for by the applicable laws, nor had such an exercise been conducted by the hospital.", "84. The Court notes that Austrian law does not grant in all cases a right to object to a post-mortem examination of close relatives on religious or any other grounds. The Court sees no reason to call this legislative choice into question. The rights under Articles 8 and 9 are not absolute and therefore do not require the Contracting States to grant an absolute right to lodge an objection in that regard.", "85. Thirdly, the Court observes that the post-mortem was carried out on the basis of section 25 of the Hospital Act and section 12(3) of the Funeral Act (see paragraph 60 above). It therefore considers it appropriate for it to assess the relevant legislative choices. Pursuant to section 25 of the Hospital Act, as well as the corresponding section 12(3) of the Funeral Act (see paragraphs 38 and 42 above), in cases of a death in a public hospital, a post-mortem shall be carried out - irrespective of the consent of the close relatives - if it is necessary, inter alia, in order to safeguard scientific or other public interests. If it is not necessary to safeguard such interests and none of the other criteria enumerated in section 25 of the Hospital Act apply, a post-mortem may only be carried out with the consent of the deceased’s closest relatives. The law therefore does not give the authorities the right to conduct post-mortem examinations in each and every case. The Court notes, however, that the Austrian legislature has chosen to give precedence to the interests of science and the health of others over religious or any other reasons for objection on the part of the relatives of a deceased person in cases of necessity for safeguarding scientific interests - in particular if a case is diagnostically unclear.", "86. The Court emphasises the Government’s submissions to the effect that the advancement of modern medicine has in part been made possible by post-mortem examinations establishing the cause of death and contributing to the prevention of thereby discovered illnesses and ailments in those still alive (see also the preparatory work on section 25 of the Hospital Act, cited in paragraph 39 above) – irrespective of religious or other convictions. In other words, mortui vivos docent – “the dead teach the living”. In that connection, the Court also notes the long and carefully preserved tradition of autopsy law in Austria, which is perceived as an integral part of the constitutionally guaranteed freedom of science (see paragraphs 36 and 40 above). This right is closely related to the positive obligations under the Convention, notably Articles 2 and 8, to take appropriate measures to protect the life and health of those within a State´s jurisdiction (see Vavřička and Others, cited above, § 282).", "87. The Court thus considers that the legitimate aim cited by the Government, namely the protection of the health of others through the conduct of post-mortem examinations, is of particular importance and weight in the instant case. At the same time, the Court is mindful of the relevance in this context of the applicant’s interest in ensuring that the remains of her deceased son were respected for the purpose of the funeral, a concern that she had expressed from the outset (see paragraphs 7, 9 and 11 above; compare Solska and Rybicka, cited above, § 122).", "88. The Court notes that the evidence taken during domestic proceedings confirmed the lawfulness of the performance of the post-mortem. Two independent expert opinions found that the post-mortem had been performed in order to confirm a previous diagnosis (see paragraphs 27-28 above) and had clearly served the safeguarding of scientific interests. They stated that so-called “Prune-Belly-Syndrome” was a disease that had not yet been sufficiently explored; moreover, there also existed an illness with similar symptoms, and Y.M.’s post-mortem had served to secure diagnostic clarity in respect of his case. The Court is therefore satisfied, in line with the domestic courts’ findings, that the legal requirement that there be a scientific interest in performing a post-mortem examination was met in the instant case.", "89. However, even though there was indeed a scientific interest in performing the post-mortem examination, the Court reiterates that section 25 of the Hospital Act stipulates that a post-mortem examination can only be performed in such circumstances if it is “necessary” in order to safeguard such a scientific interest, which leaves a certain scope of discretion, including as to the extent of the intervention necessary, to the doctors deciding on whether a post-mortem examination should be carried out in any given case. It therefore does not exclude that a balancing of competing rights and interests could or should be carried out. The Court considers that in the applicant’s case, however, her reasons for opposing the post-mortem of her son’s body were not taken into account by the public hospital’s staff in charge of that decision (see paragraph 9 above). Nor did the Court of Appeal, which dismissed the applicant’s claim for damages (see paragraph 30 above), weigh the importance of the scientific interest in the post-mortem against the applicant’s particular private interest in having her son’s body “as unscathed as possible” for the religious funeral (see paragraph 7 above). While the Court accepts the wide margin of appreciation of the domestic authorities (see paragraph 80 above), in the instant case they do not appear to have conducted any balancing exercise between the competing interests.", "90. The Court notes that the applicant had been able to submit her complaints as to the violation of her rights under Articles 8 and 9 to the Supreme Court, and that the latter addressed, to some extent, the proportionality of the interference with her rights, agreeing with the legislative choices and confirming the scientific interest in the material post-mortem examination. It considered that in the present case, the carrying out of the latter had been in the interest of public health in order to assess the quality of the medical treatment given to the applicant’s son, to eliminate any diagnostic ambiguities and to promote scientific knowledge (see paragraph 33 above). However, the applicant’s reasons for opposing the post-mortem were given little to no consideration. The Supreme Court therefore did not sufficiently address her individual rights under Articles 8 and 9 of the Convention and the “necessity” of the post-mortem in that light.", "91. The foregoing considerations are sufficient to enable the Court to conclude that the authorities in the instant case have not struck a fair balance between the competing interests at stake by reconciling the requirements of public health to the highest possible degree with the right to respect for private and family life (compare Solska and Rybicka, cited above, § 121; see paragraph 79 above), nor did they weigh the applicant’s interest in burying her son in accordance with her religious beliefs in the balance. This failure to conduct a balancing exercise constituted a violation of Articles 8 and 9 of the Convention.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION REGARDING THE DUTY TO DISCLOSE INFORMATION", "92. The applicant complained under Article 8 of the Convention that the hospital had failed to comply with its duty to inform her of the extent of the post-mortem and the removal of the inner organs of her deceased son. She submitted that this lack of information on the post-mortem had an impact on the choice of her son’s funeral arrangement, which she and her husband expressly wished to organise according to their religious beliefs.", "AdmissibilityApplicability of Article 8 of the Convention", "Applicability of Article 8 of the Convention", "Applicability of Article 8 of the Convention", "93. The Court reiterates that the right of access to information relating to one’s private and/or family life raises an issue under Article 8 of the Convention (see, among other authorities, Roche v. the United Kingdom [GC], no. 32555/96, §§ 155-56, ECHR 2005‑X; and, in particular, Lozovyye v. Russia, no. 4587/09, § 32, 24 April 2018, in which the Court found that Article 8 was applicable to a situation where the family of a murder victim had not been informed of his death and had not been able to attend the funeral).", "94. The Court has held that the concepts of “private life” and “family life” encompass the right to bury a close relative and to be present when that burial takes place (see Gülbahar Özer and Yusuf Özer v. Turkey (no. 64406/09, § 26, 29 May 2018, with further references). In the cases of Pannullo and Forte v. France (no. 37794/97, §§ 35-36, ECHR 2001‑X) and Girard v. France (no. 22590/04, § 107, 30 June 2011) the Court recognised that an excessive delay in the restitution of a body after a post-mortem or of bodily samples upon completion of the relevant criminal proceedings could constitute an interference with both the “private life” and the “family life” of the surviving family members. In the case of Hadri ‑ Vionnet v. Switzerland (no. 55525/00, § 52, 14 February 2008) the Court decided that the possibility for the applicant to be present at the funeral of her stillborn child, along with the related transfer and ceremonial arrangements, was also capable of falling within the ambit of both “private” and “family life”, within the meaning of Article 8. The Court has also held that a mother being unable to carry out her religious duties at the grave of her stillborn child raises an issue under the concept of “family life” under Article 8 (see Yıldırım v. Turkey (dec.), 25327/02, 11 September 2007).", "95. Regard being had to its case-law concerning surviving family members and the above-mentioned circumstances, the Court finds that the applicant’s complaint concerning the hospital’s duty to disclose information relating to her son’s post-mortem falls within the scope of the right to respect for private and family life.", "The Government’s objection relating to the non-exhaustion of domestic remedies", "96. The Government submitted that if it could be said that the applicant had indeed alleged a violation of Article 8 before the domestic courts in relation to the hospital’s duty to disclose information, she had done so only in substance – that is to say without mentioning Article 8. They therefore considered that complaint to be inadmissible for non-exhaustion of domestic remedies.", "97. The applicant did not comment on the admissibility of that complaint.", "98. The Court notes that the question of the extent of the information provided regarding her son’s post-mortem was indeed one of the subjects of the domestic liability proceedings (see paragraph 21 above), even though the applicant did not specifically refer to Article 8 of the Convention during those proceedings. It reiterates that it is sufficient that the applicant raised the above complaint in substance before the domestic courts (see, among many other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014). It therefore dismisses the Government’s objection of non-exhaustion in respect of this complaint.", "Conclusion", "99. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "MeritsThe applicant’s submissions", "The applicant’s submissions", "The applicant’s submissions", "100. The applicant alleged that medical staff had at first told her that no post-mortem would be performed, after she had told them that she objected to it for religious reasons. Later, the hospital explained to her that the planned post-mortem of the body would only be carried out to a minor extent, and would entail making just a small incision measuring about 4 cm. She had continued to object, but the post-mortem had been performed nonetheless, without her or her husband’s consent.", "101. She furthermore contended that she had not been informed that the removal of all internal organs had taken place (including the urinary tract, which had rendered the child’s sex unrecognisable) or that the body had been refilled with cotton wool. The post-mortem and the removal of the organs had made a burial in accordance with her religious beliefs impossible.", "102. The applicant submitted that the post-traumatic stress disorder from which she suffered was a direct result of the shock that she had had when seeing her child’s body in such an unexpected state at the funeral ceremony. She would never have planned and conducted a funeral ceremony in Turkey (but would instead have buried her son in Austria) had she known that her child’s body had undergone such an extensive post-mortem.", "The Government’s submissions", "103. The Government submitted that physicians’ duty to provide information and explanations to the relatives of deceased patients stemmed mutatis mutandis from section 5a of the Hospital Act and section 30 of the Vorarlberg Hospital Act as a subsidiary duty under the treatment contract. Such clarifications typically served the purpose of preventing foreseeable damage. The Government added that according to the Supreme Court’s case-law, the existence and scope of the obligation, under a private-law contract, to provide information always depended on the circumstances of each individual case. It was difficult to issue general statements regarding precisely when there was a duty to warn and inform. However, it could be said that the standard to be applied became stricter the higher the damage that could emanate from a certain risk. But in any event, the duty to disclose information ended at the point where it became clear such a disclosure would threaten the interests of the person to be informed.", "104. The Government argued that a physician’s duty to inform a patient about a medical treatment was not applicable to the same extent in respect of the case at issue: in the present case there had been no duty to disclose information, as the case had not concerned the right to self-determination of a patient whose physical integrity had been unlawfully and with irreversible consequences affected by a certain treatment measure (see the above-mentioned Supreme Court judgment, paragraphs 32-34 above). What the Government considered to be at issue in the instant case was rather the rights of the relatives after the death of a patient, which is why another standard had to be applied regarding doctors’ duty to provide information.", "The Court’s assessment", "105. At the outset, the Court notes that it has not been contested that the hospital was a public institution and that the acts or omissions of its medical staff – including the doctors and physicians who decided to perform and who carried out the post-mortem – were capable of engaging the responsibility of the respondent State under the Convention (see Glass v. the United Kingdom, no. 61827/00, § 71, ECHR 2004‑II, and Elberte, cited above, § 106).", "106. The Court points out that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in effective “respect” for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State is recognised as enjoying a certain margin of appreciation (see Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55; and Pannullo and Forte, cited above, § 35).", "107. In choosing how to comply with their positive obligations, States enjoy a broad margin of appreciation (see A, B and C v. Ireland [GC], no. 25579/05, § 249, ECHR 2010).", "108. The substance of the applicant’s complaint is not that the State acted in a certain way, but that it failed to act (see Airey v. Ireland, 9 October 1979, § 32, Series A no. 32); namely, she alleged that the hospital omitting to inform her of the extent of the post-mortem and the removal of the organs had violated her rights, as guaranteed by Article 8 of the Convention. The Court finds it appropriate to approach the present case from the perspective of a positive obligation on the part of the respondent State under Article 8 of the Convention (see, to similar effect, Lozovyye, cited above, § 37).", "109. In order to establish whether the requirements of Article 8 of the Convention were met in the present case the Court will examine, firstly, whether an appropriate legal framework was in place in Austria concerning any possible duty to disclose information to close relatives regarding the extent and manner of a post-mortem conducted on a deceased person (see, mutatis mutandis, Lozovyye, cited above, § 39).", "110. The Court notes that in the instant case, the Supreme Court held that the laws concerning a patient’s right to information were not directly applicable, as they concerned the treatment of the living and aimed at enabling patients to take informed choices in respect of their own health (see paragraph 34 above). The Government submitted that the physicians’ duty to provide information and explanations to the relatives of a deceased person stemmed mutatis mutandis from section 5a of the Hospital Act, but did not apply to the same extent as it applied to the living.", "111. The Court notes that there appears to be no clear rule under Austrian law governing the extent of information that must or must not be given to close relatives of a deceased person in respect of whom a post ‑ mortem has been performed.", "112. Nonetheless, in the Court’s view this lack of a clear rule is not sufficient in itself to find a violation of the respondent State’s positive obligations under Article 8 of the Convention in the present case (compare Lozovyye, cited above, § 42).", "113. The Court will therefore next examine whether the Austrian authorities undertook reasonable steps to provide the applicant with information as to the extent the post-mortem performed, given the circumstances.", "114. The Court has held, in a case where State employees organised the burial of the applicant’s child without informing her of the time or place thereof, that it is the duty of the Contracting States to organise their services and to train their agents in such a way that they can meet the requirements of the Convention. It furthermore stated that in an area as personal and delicate as the management of the death of a close relative, a particularly high degree of diligence and prudence must be exercised by the authorities (see Hadri-Vionnet, cited above, § 56).", "115. In the instant case, the applicant had just lost a child and was confronted with a situation in which she had no legal right to object to a post-mortem examination being conducted on that child. She had informed the hospital staff that according to her religious beliefs the deceased child’s body needed to be as unscathed as possible for the burial ceremony. The Court considers that these specific circumstances are as delicate as those in the case of Hadri-Vionnet (cited above) and required an equally high degree of diligence and prudence on the part of the hospital staff when interacting with the applicant. Given the fact that the hospital staff was made aware by the applicant of the reasons for her objection to the post-mortem, the Court considers that the hospital had an even greater duty to provide her with appropriate information regarding what had been done and what would be done with her child’s body. The Court notes that after her son’s death, the applicant was informed that a post-mortem would be performed despite her objections (see paragraph 9 above). Whether she was indeed told that “only a small incision of about 4 cm” would be made cannot be confirmed from the documents at hand (see paragraph 13 above), moreover it was not established by the domestic courts. However, the Court finds it established that the hospital had not informed the applicant of the extent of the post-mortem, which led her to believe that a ritual washing and a funeral ceremony in accordance with her beliefs could be held. Therefore, she and her husband proceeded to organise such a ceremony in Turkey.", "116. The Court reiterates that the Supreme Court stated in its final judgment that the doctors concerned had rightly refrained from giving detailed explanations to the applicant and her husband regarding the extent of the post-mortem (see paragraph 34 above). It conceded, at the same time, that the routine removal of organs during post-mortem examinations was not common knowledge but considered that omitting to give detailed explanations regarding a post-mortem examination would potentially be less burdensome to the relatives of the deceased. The Court considers that the Supreme Court’s argument that omitting to give detailed information would be less burdensome to the relatives may be valid in some situations, but did not take into account the specific situation in the applicant’s case: she had made it clear that she wished to have a funeral in accordance with her beliefs which required her son’s body to remain as unscathed as possible. The details on the extent of the post-mortem were therefore of particular importance for her, a fact which she had communicated to the hospital at several occasions.", "117. Moreover, the Court considers that in the specific circumstances of the instant case, the hospital had a duty to inform the applicant about the removal of her son’s organs. The Court notes, in this regard, that the Supreme Court held that it could not be seen as common knowledge that all organs are removed during the post-mortem of a new-born. It remained undisputed by the Government that the hospital staff initially denied having removed any organs, but later admitted that they had in fact done so. The applicant was handed her son’s organs only after two interventions by the Patients’ Ombudsperson. This was not disputed by the Government, either.", "118. In sum, the Court considers that the behaviour of the hospital staff towards the applicant clearly lacked the diligence and prudence required by the situation. It finds (as did the Feldkirch Regional Court, as the court that examined the matter at first instance – see paragraph 29 above) that the hospital staff should have informed the applicant and her husband of the extent of their son’s post-mortem. This information was important to them, in particular for religious reasons, as it was crucial to the planning of the burial ceremony, of which they had informed the hospital very early (see paragraph 7 above).", "119. The Court furthermore notes that while the expert opinions unanimously found that the post-mortem had been justified in order to be able to clarify the diagnosis, nothing therein mentioned any necessity to keep the organs for scientific or other reasons for several weeks or months (see paragraphs 18 and 19 above). The Court considers that in the specific circumstances of the case, where the applicant had informed the hospital that her son´s body should remain as unscathed as possible for the funeral (see paragraph 7 above), it was the hospital’s duty to inform the applicant without undue delay of the removal and the whereabouts of her son’s organs.", "120. The foregoing considerations are sufficient to enable the Court to conclude that, in the specific circumstances of the case, there has been a violation of Article 8 of the Convention on account of the hospital omitting to provide the applicant with sufficient information on the extent of her son’s post-mortem, and of the removal and whereabouts of his organs.", "ALLEGED VIOLATION OF ARTICLE 13 READ IN CONJUNCTION WITH ARTICLES 8 AND 9 OF THE CONVENTION", "121. The applicant complained under Article 13, read in conjunction with Articles 8 and 9 of the Convention, that there been no legal remedy at her disposal by which to challenge the performance of the post-mortem examination before it took place. Article 13 reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "122. The Government submitted that the applicant had not raised that complaint before the domestic courts. They therefore considered the complaint to be inadmissible for non-exhaustion of domestic remedies.", "123. The applicant did not comment on the admissibility of the complaint.", "124. The Court reiterates that it is incumbent on the Government pleading non-exhaustion to satisfy it that the remedy was an effective one available in theory and in practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success ( Molla Sali v. Greece [GC], no. 20452/14, § 89, 19 December 2018, with further references). It notes that the Government have not specified which remedy the applicant should have used to raise this complaint, or why such remedy would have been effective in the circumstances. It therefore dismisses the Government’s objection as to the alleged non-exhaustion of domestic remedies.", "125. The Court furthermore notes that this complaint is closely linked to the one examined above regarding the post-mortem and must therefore likewise be declared admissible.", "126. However, having regard to its finding in relation to Articles 8 and 9 (see paragraphs 80-91 above), the Court does not consider it necessary to examine separately whether, in this case, there has been a violation of Article 13 (see, mutatis mutandis, the above-cited cases of Elberte, § 147, and Solska and Rybicka, § 131).", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "127. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "128. The applicant claimed EUR 8,500 in respect of pecuniary damage (namely, the fee that she had had to pay for the halted burial ceremony in Turkey). Under the head of non-pecuniary damage, she claimed 50,000 euros (EUR) for the stress and frustration that she had suffered as a result of the violation of the Convention. In addition, she claimed EUR 25,800 in respect of “future non-pecuniary damage”.", "129. The Government considered those claims to be excessive. They submitted that the applicant had not itemised her claims in respect of pecuniary damage or submitted any bills as evidence that those costs had actually been incurred.", "130. According to Rule 60 of the Rules of Court, an applicant must submit itemised particulars of his claims, supported by relevant documents, failing which the Court may reject the claims in whole or in part. It therefore rejects the applicant’s claim for pecuniary damage. On the other hand, the Court accepts that the applicant has suffered considerable distress on account of the violations found. It therefore awards the applicant EUR 10,000 in respect of non-pecuniary damage.", "Costs and expenses", "131. The applicant also claimed EUR 89,660.42 for the costs and expenses incurred before the domestic courts (comprising EUR 32,796.92, which she had had to pay to the opposing party for its legal fees, and EUR 56,863.50 for her own legal representation as well as court fees), and EUR 20,000 for legal fees that she had incurred in respect of proceedings before the Court.", "132. The Government pointed out that the applicant had failed to submit a detailed itemisation of her claims in respect of costs and expenses.", "133. Regard being had to Rule 60 of the Rules of Court (see paragraph 130 above) and the documents in its possession, the Court grants the applicant EUR 32,796.92, which she had to pay in legal fees to the opposing party at the domestic level, but rejects the claim for the costs and expenses sustained at the domestic level for her own legal representation, as the applicant has failed to adduce itemised bills thereof. Moreover, it considers it reasonable to award EUR 5,000 for the proceedings before the Court. In total, the Court therefore awards the applicant EUR 37,796.92 in respect of costs and expenses and rejects the remainder of her respective claims.", "Default interest", "134. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. INTRODUCTION", "A. The applicants", "9. The applicants in this case are (a) Open Door Counselling Ltd (hereinafter referred to as Open Door), a company incorporated under Irish law, which was engaged, inter alia, in counselling pregnant women in Dublin and in other parts of Ireland; and (b) Dublin Well Woman Centre Ltd (hereinafter referred to as Dublin Well Woman), a company also incorporated under Irish law which provided similar services at two clinics in Dublin; (c) Bonnie Maher and Ann Downes, who worked as trained counsellors for Dublin Well Woman; (d) Mrs X, born in 1950 and Ms Maeve Geraghty, born in 1970, who join in the Dublin Well Woman application as women of child-bearing age. The applicants complained of an injunction imposed by the Irish courts on Open Door and Dublin Well Woman to restrain them from providing certain information to pregnant women concerning abortion facilities outside the jurisdiction of Ireland by way of non-directive counselling (see paragraphs 13 and 20 below).", "Open Door and Dublin Well Woman are both non-profit- making organisations. Open Door ceased to operate in 1988 (see paragraph 21 below). Dublin Well Woman was established in 1977 and provides a broad range of services relating to counselling and marriage, family planning, procreation and health matters. The services offered by Dublin Well Woman relate to every aspect of women ’ s health, ranging from smear tests to breast examinations, infertility, artificial insemination and the counselling of pregnant women.", "10. In 1983, at the time of the referendum leading to the Eighth Amendment of the Constitution (see paragraph 28 below), Dublin Well Woman issued a pamphlet stating inter alia that legal advice on the implications of the wording of the provision had been obtained and that \"with this wording anybody could seek a court injunction to prevent us offering\" the non-directive counselling service. The pamphlet also warned that \"it would also be possible for an individual to seek a court injunction to prevent a woman travelling abroad if they believe she intends to have an abortion\".", "B. The injunction proceedings", "1. Before the High Court", "11. The applicant companies were the defendants in proceedings before the High Court which were commenced on 28 June 1985 as a private action brought by the Society for the Protection of Unborn Children (Ireland) Ltd (hereinafter referred to as S.P.U.C.), which was converted into a relator action brought at the suit of the Attorney General by order of the High Court of 24 September 1986 (the Attorney General at the relation of the Society for the Protection of Unborn Children (Ireland) Ltd v. Open Door Counselling Ltd and Dublin Well Woman Centre Ltd [1988] Irish Reports, pp. 593-627).", "12. S.P.U.C. sought a declaration that the activities of the applicant companies in counselling pregnant women within the jurisdiction of the court to travel abroad to obtain an abortion were unlawful having regard to Article 40.3.3 o of the Constitution which protects the right to life of the unborn (see paragraph 28 below) and an order restraining the defendants from such counselling or assistance.", "13. No evidence was adduced at the hearing of the action which proceeded on the basis of certain agreed facts. The facts as agreed at that time by Dublin Well Woman may be summarised as follows:", "(a) It counsels in a non-directive manner pregnant women resident in Ireland;", "(b) Abortion or termination of pregnancy may be one of the options discussed within the said counselling;", "(c) If a pregnant woman wants to consider the abortion option further, arrangements will be made by the applicant to refer her to a medical clinic in Great Britain;", "(d) In certain circumstances, the applicant may arrange for the travel of such pregnant women;", "(e) The applicant will inspect the medical clinic in Great Britain to ensure that it operates at the highest standards;", "(f) At those medical clinics abortions have been performed on pregnant women who have been previously counselled by the applicant;", "(g) Pregnant women resident in Ireland have been referred to medical clinics in Great Britain where abortions have been performed for many years including 1984.", "The facts agreed by Open Door were the same as above with the exception of point (d).", "14. The meaning of the concept of non-directive counselling was described in the following terms by Mr Justice Finlay CJ in the judgment of the Supreme Court in the case (judgment of 16 March 1988, [1988] Irish Reports 618 at p. 621):", "\"It was submitted on behalf of each of the Defendants that the meaning of non-directive counselling in these agreed sets of facts was that it was counselling which neither included advice nor was judgmental but that it was a service essentially directed to eliciting from the client her own appreciation of her problem and her own considered choice for its solution. This interpretation of the phrase ‘ non-directive counselling ’ in the context of the activities of the Defendants was not disputed on behalf of the Respondent. It follows from this, of course, that non- directive counselling to pregnant women would never involve the actual advising of an abortion as the preferred option but neither, of course, could it permit the giving of advice for any reason to the pregnant women receiving such counselling against choosing to have an abortion.\"", "15. On 19 December 1986 Mr Justice Hamilton, President of the High Court, found that the activities of Open Door and Dublin Well Woman in counselling pregnant women within the jurisdiction of the court to travel abroad to obtain an abortion or to obtain further advice on abortion within a foreign jurisdiction were unlawful having regard to the provisions of Article 40.3.3 o of the Constitution of Ireland.", "He confirmed that Irish criminal law made it an offence to procure or attempt to procure an abortion, to administer an abortion or to assist in an abortion by supplying any noxious thing or instrument (sections 58 and 59 of the Offences against the Person Act 1861 - see paragraph 29 below). Furthermore, Irish constitutional law also protected the right to life of the unborn from the moment of conception onwards.", "An injunction was accordingly granted \"... that the Defendants [Open Door and Dublin Well Woman] and each of them, their servants or agents, be perpetually restrained from counselling or assisting pregnant women within the jurisdiction of this Court to obtain further advice on abortion or to obtain an abortion\". The High Court made no order relating to the costs of the proceedings, leaving each side to bear its own legal costs.", "2. Before the Supreme Court", "16. Open Door and Dublin Well Woman appealed against this decision to the Supreme Court which in a unanimous judgment delivered on 16 March 1988 by Mr Justice Finlay CJ rejected the appeal.", "The Supreme Court noted that the appellants did not consider it essential to the service which they provided for pregnant women in Ireland that they should take any part in arranging the travel of women who wished to go abroad for the purpose of having an abortion or that they arranged bookings in clinics for such women. However, they did consider it essential to inform women who wished to have an abortion outside the jurisdiction of the court of the name, address, telephone number and method of communication with a specified clinic which they had examined and were satisfied was one which maintained a high standard.", "17. On the question of whether the above activity should be restrained as being contrary to the Constitution, Mr Justice Finlay CJ stated:", "\"... the essential issues in this case do not in any way depend upon the Plaintiff establishing that the Defendants were advising or encouraging the procuring of abortions. The essential issue in this case, having regard to the nature of the guarantees contained in Article 40, s.3, sub-s.3 of the Constitution, is the issue as to whether the Defendants ’ admitted activities were assisting pregnant women within the jurisdiction to travel outside that jurisdiction in order to have an abortion. To put the matter in another way, the issue and the question of fact to be determined is: were they thus assisting in the destruction of the life of the unborn?", "I am satisfied beyond doubt that having regard to the admitted facts the Defendants were assisting in the ultimate destruction of the life of the unborn by abortion in that they were helping the pregnant woman who had decided upon that option to get in touch with a clinic in Great Britain which would provide the service of abortion. It seems to me an inescapable conclusion that if a woman was anxious to obtain an abortion and if she was able by availing of the counselling services of one or other of the Defendants to obtain the precise location, address and telephone number of, and method of communication with, a clinic in Great Britain which provided that service, put in plain language, that was knowingly helping her to attain her objective. I am, therefore, satisfied that the finding made by the learned trial Judge that the Defendants were assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion is well supported on the evidence ...\"", "The Court further noted that the phrase in Article 40.3.3 o \"with due regard to the equal right to life of the mother\" did not arise for interpretation in the case since the applicants were not claiming that the service they were providing for pregnant women was \"in any way confined to or especially directed towards the due regard to the equal right to life of the mother ...\".", "18. Open Door and Dublin Well Woman had submitted that if they did not provide this counselling service it was likely that pregnant women would succeed nevertheless in obtaining an abortion in circumstances less advantageous to their health. The Court rejected this argument in the following terms:", "\"Even if it could be established, however, it would not be a valid reason why the Court should not restrain the activities in which the defendants were engaged.", "The function of the courts, which is not dependent on the existence of legislation, when their jurisdiction to defend and vindicate a constitutionally guaranteed right has been invoked, must be confined to the issues and to the parties before them.", "If the Oireachtas enacts legislation to defend and vindicate a constitutionally guaranteed right it may well do so in wider terms than are necessary for the resolution of any individual case. The courts cannot take that wide approach. They are confined to dealing with the parties and issues before them. I am satisfied, therefore, that it is no answer to the making of an order restraining these defendants ’ activities that there may be other persons or the activities of other groups or bodies which will provide the same result as that assisted by these defendants ’ activities.\"", "19. As to whether there was a constitutional right to information about the availability of abortion outside the State, the court stated as follows:", "\"The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Article 40.3.3 o it is a direct destruction of the constitutionally guaranteed right to life of that unborn child.", "It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the State which, if availed of, would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn. As part of the submission on this issue it was further suggested that the right to receive and give information which, it was alleged, existed and was material to this case was, though not expressly granted, impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by Article 40, s.6, sub-s.1 ( i ) of the Constitution, since, it was claimed, the right to express freely convictions and opinions may, under some circumstances, involve as an ancillary right the right to obtain information. I am satisfied that no right could constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child.\"", "20. The court upheld the decision of the High Court to grant an injunction but varied the terms of the order as follows:", "\"... that the defendants and each of them, their servants or agents be perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making for them of travel arrangements, or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise.\"", "The costs of the Supreme Court appeal were awarded against the applicant companies on 3 May 1988.", "21. Following the judgment of the Supreme Court, Open Door, having no assets, ceased its activities.", "C. Subsequent legal developments", "22. On 25 September 1989 S.P.U.C. applied to the High Court for a declaration that the dissemination in certain student publications of information concerning the identity and location of abortion clinics outside the jurisdiction was unlawful and for an injunction restraining its distribution. Their standing to apply to the courts for measures to protect the right to life of the unborn had previously been recognised by the Supreme Court following a similar action in the case of Society for the Protection of Unborn Children (Ireland) Ltd v. Coogan and Others ([1989] Irish Reports, pp. 734-751).", "By a judgment of 11 October 1989 the High Court decided to refer certain questions to the European Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty concerning, inter alia, the question whether the right to information concerning abortion services outside Ireland was protected by Community law.", "23. An appeal was brought against this decision and, on 19 December 1989, the Supreme Court granted an interlocutory injunction restraining the students from \"publishing or distributing or assisting in the printing, publishing or distribution of any publication produced under their aegis providing information to persons (including pregnant women) of the identity and location of and the method of communication with a specified clinic or clinics where abortions are performed\" (Society for the Protection of Unborn Children (Ireland) Ltd v. Stephen Grogan and Others, [1989] Irish Reports, pp. 753-771).", "Mr Justice Finlay CJ (with whom Mr Justice Walsh, Mr Justice Griffin and Mr Justice Hederman concurred) considered that the reasoning of the court in the case brought against the applicant companies applied to the activities of the students:", "\"I reject as unsound the contention that the activity involved in this case of publishing in the students ’ manuals the name, address and telephone number, when telephoned from this State, of abortion clinics in the United Kingdom, and distributing such manuals in Ireland, can be distinguished from the activity condemned by this Court in [the Open Door Counselling case] on the grounds that the facts of that case were that the information was conveyed during periods of one to one non-directive counselling. It is clearly the fact that such information is conveyed to pregnant women, and not the method of communication which creates the unconstitutional illegality, and the judgment of this Court in the Open Door Counselling case is not open to any other interpretation.\"", "Mr Justice McCarthy also considered that an injunction should be issued and commented as follows:", "\"In the light of the availability of such information from a variety of sources, such as imported magazines, etc., I am far from satisfied that the granting of an injunction to restrain these defendants from publishing the material impugned would save the life of a single unborn child, but I am more than satisfied that if the courts fail to enforce, and enforce forthwith, that guarantee as construed in A.G. (S.P.U.C.) v. Open Door Counselling Ltd ([1988] Irish Reports 593), then the rule of law will be set at nought.\"", "24. In a judgment of 4 October 1991 on the questions referred under Article 177 of the EEC Treaty, following the Supreme Court ’ s judgment, the Court of Justice of the European Communities ruled that the medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constitutes a service within the meaning of Article 60 of the Treaty. However it found that the link between the activity of the student associations and medical terminations of pregnancy carried out in clinics in another member State was too tenuous for the prohibition on the distribution of information to be capable of being regarded as a restriction on the freedom to supply services within the meaning of Article 59 of the Treaty. The Court did not examine whether the prohibition was in breach of Article 10 (art. 10) of the Convention. In the light of its conclusions concerning the restriction on services it considered that it had no jurisdiction with regard to national legislation \"lying outside the scope of Community law\". Accordingly, the restrictions on the publication of information by student associations were not considered to be contrary to Community law (see paragraphs 22-23 above, the Society for the Protection of Unborn Children ( Ireland ) Ltd v. Stephen Grogan and Others [1991] European Court Reports I, pp. 4733-4742).", "25. The interpretation to be given to Article 40.3.3 o of the Constitution also arose before the Supreme Court in the case of The Attorney General v. X and Others which concerned an application to the courts by the Attorney General for an injunction to prevent a 14-year-old girl who was pregnant from leaving the jurisdiction to have an abortion abroad. The girl alleged that she had been raped and had expressed the desire to commit suicide. The Supreme Court, in its judgment of 5 March 1992, found that termination of pregnancy was permissible under Article 40.3.3 o where it was established as a matter of probability that there was a real and substantial risk to the life of the mother if such termination was not effected. Finding that this test was satisfied on the facts of the case the Supreme Court discharged the injunction which had been granted by the High Court at first instance.", "A majority of three judges of the Supreme Court ( Finlay CJ, Hederman and Egan JJ.) expressed the view that Article 40.3.3 o empowered the courts in proper cases to restrain by injunction a pregnant woman from leaving the jurisdiction to have an abortion so that the right to life of the unborn might be defended and vindicated.", "During the oral hearing before the European Court of Human Rights, the Government made the following statement in the light of the Supreme Court ’ s judgment in this case:", "\"... persons who are deemed to be entitled under Irish law to avail themselves of termination of pregnancy in these circumstances must be regarded as being entitled to have appropriate access to information in relation to the facilities for such operations, either in Ireland or abroad.\"", "D. Evidence presented by the applicants", "26. The applicants presented evidence to the Court that there had been no significant drop in the number of Irish women having abortions in Great Britain since the granting of the injunction, that number being well over 3,500 women per year. They also submitted an opinion from an expert in public health (Dr J.R. Ashton) which concludes that there are five possible adverse implications for the health of Irish women arising from the injunction in the present case:", "1. An increase in the birth of unwanted and rejected children;", "2. An increase in illegal and unsafe abortions;", "3. A lack of adequate preparation of Irish women obtaining abortions;", "4. Increases in delay in obtaining abortions with ensuing increased complication rates;", "5. Poor aftercare with a failure to deal adequately with medical complications and a failure to provide adequate contraceptive advice.", "In their written comments to the Court, S.P.U.C. claimed that the number of abortions obtained by Irish women in England, which had been rising rapidly prior to the enactment of Article 40.3.3 o, had increased at a much reduced pace. They further submitted that the number of births to married women had increased at a \"very substantial rate\".", "27. The applicants claimed that the impugned information was available in British newspapers and magazines which were imported into Ireland as well as in the yellow pages of the London telephone directory which could be purchased from the Irish telephone service. It was also available in publications such as the British Medical Journal which was obtainable in Ireland.", "While not challenging the accuracy of the above information the Government observed that no newspaper or magazine had been produced in evidence to the Court." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE CONCERNING PROTECTION OF THE UNBORN", "A. Constitutional protection", "28. Article 40.3.3 o of the Irish Constitution (the Eighth Amendment), which came into force in 1983 following a referendum, reads:", "\"The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.\"", "This provision has been interpreted by the Supreme Court in the present case, in the Society for the Protection of Unborn Children ( Ireland ) Ltd v. Grogan and Others ([1989] Irish Reports, p. 753) and in The Attorney General v. X and Others (see paragraphs 22-25 above).", "B. Statutory protection", "29. The statutory prohibition of abortion is contained in sections 58 and 59 of the Offences Against the Person Act 1861. Section 58 provides that:", "\"Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or not be with child, shall unlawfully administer to her or cause to betaken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of a felony, and being convicted thereof shall be liable, [to imprisonment for life] ...\"", "Section 59 states that:", "\"Whoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour, and being convicted thereof, ...\"", "30. Section 16 of the Censorship of Publications Act 1929 as amended by section 12 of the Health (Family Planning) Act 1979 provides that:", "\"It shall not be lawful for any person, otherwise than under and in accordance with a permit in writing granted to him under this section", "(a) to print or publish or cause or procure to be printed or published, or", "(b) to sell or expose, offer or keep for sale or", "(c) to distribute, offer or keep for distribution,", "any book or periodical publication (whether appearing on the register of prohibited publications or not) which advocates or which might reasonably be supposed to advocate the procurement of abortion or miscarriage or any method, treatment or appliance to be used for the purpose of such procurement.\"", "31. Section 58 of the Civil Liability Act 1961 provides that \"the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided the child is subsequently born alive\".", "32. Section 10 of the Health (Family Planning) Act 1979 re-affirms the statutory prohibition of abortion and states as follows:", "\"Nothing in this Act shall be construed as authorising -", "(a) the procuring of abortion,", "(b) the doing of any other thing the doing of which is prohibited by section 58 or 59 of the Offences Against the Person Act, 1861 (which sections prohibit the administering of drugs or the use of any instruments to procure abortion) or,", "(c) the sale, importation into the State, manufacture, advertising or display of abortifacients .\"", "C. Case-law", "33. Apart from the present case and subsequent developments (see paragraphs 11-25 above), reference has been made to the right to life of the unborn in various decisions of the Supreme Court (see, for example, McGee v. Attorney General [1974] Irish Reports, p. 264, G. v. An Bord Uchtala [1980] Irish Reports, p. 32, Norris v. Attorney General [1984] Irish Reports, p. 36).", "34. In the case of G. v. An Bord Uchtala (loc. cit.) Mr Justice Walsh stated as follows:", "\"[A child] has the right to life itself and the right to be guarded against all threats directed to its existence, whether before or after birth ... The right to life necessarily implies the right to be born, the right to preserve and defend and to have preserved and defended that life ...\"", "35. The Supreme Court has also stated that the courts are the custodians of the fundamental rights set out in the Constitution and that their powers in this regard are as ample as the defence of the Constitution requires (The State (Quinn) v. Ryan [1965] Irish Reports 70). Moreover, an infringement of a constitutional right by an individual may be actionable in damages as a constitutional tort ( Meskell v. C.I.E. [1973] Irish Reports, p. 121).", "In his judgment in The People v. Shaw ([1982] Irish Reports, p. 1), Mr Justice Kenny observed:", "\"When the People enacted the Constitution of 1937, they provided (Article 40,s.3) that the State guaranteed in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen and that the State should, in particular, by its laws protect as best it might from unjust attack and in the case of injustice done, vindicate the life, person, good name and property rights of every citizen. I draw attention to the use of the words ‘ the State ’. The obligation to implement this guarantee is imposed not on the Oireachtas only, but on each branch of the State which exercises the powers of legislating, executing and giving judgment on those laws: Article 6. The word ‘ laws ’ in Article 40,s.3 is not confined to laws which have been enacted by the Oireachtas, but comprehends the laws made by judges and by ministers of State when they make statutory instruments or regulations.\"", "PROCEEDINGS BEFORE THE COMMISSION", "36. In their applications (nos. 14234 and 14235/88) lodged with the Commission on 19 August and 22 September 1988 the applicants complained that the injunction in question constituted an unjustified interference with their right to impart or receive information contrary to Article 10 (art. 10) of the Convention. Open Door, Mrs X and Ms Geraghty further claimed that the restrictions amounted to an interference with their right to respect for private life in breach of Article 8 (art. 8) and, in the case of Open Door, discrimination contrary to Article 14 in conjunction with Articles 8 and 10 (art. 14+8, art. 14+10).", "37. The Commission joined the applications on 14 March 1989 and declared the case admissible on 15 May 1990. In its report of 7 March 1991 (Article 31) (art. 31), it expressed the opinion:", "(a) by eight votes to five, that there had been a violation of Article 10 (art. 10) in respect of the Supreme Court injunction as it affected the applicant companies and counsellors;", "(b) by seven votes to six, that there had been a violation of Article 10 (art. 10) in respect of the Supreme Court injunction as it affected Mrs X and Ms Geraghty;", "(c) by seven votes to two, with four abstentions, that it was not necessary to examine further the complaints of Mrs X and Ms Geraghty under Article 8 (art. 8);", "(d) unanimously, that there had been no violation of Articles 8 and 14 (art. 8, art. 14) in respect of Open Door.", "The full text of the Commission ’ s opinion and of the seven separate opinions contained in the report is reproduced as an annex to this judgment [*].", "FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT", "38. At the public hearing on 24 March 1992 the Government maintained in substance the arguments and submissions set out in their memorial whereby they invited the Court to find that there had been no breach of the Convention.", "AS TO THE LAW", "I. SCOPE OF THE DUBLIN WELL WOMAN CASE", "39. In their original application to the Commission Dublin Well Woman and the two counsellors, Ms Maher and Ms Downes, alleged that the Supreme Court injunction constituted an unjustified interference with their right to impart information, in breach of Article 10 (art. 10) of the Convention.", "In their pleadings before the Court they further complained that there had also been a breach of Article 8 (art. 8). They had not raised this complaint before the Commission.", "40. The scope of the Court ’ s jurisdiction is determined by the Commission ’ s decision declaring the originating application admissible (see, inter alia, the Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B, p. 27, para. 46). The Court considers that the applicants are now seeking to raise before the Court a new and separate complaint. As such it has no jurisdiction to entertain it.", "II. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS", "A. Whether Ms Maher, Ms Downes, Mrs X and Ms Geraghty can claim to be \"victims\" of a violation of the Convention", "41. The Government submitted, as they had done before the Commission, that only the corporate applicants could claim to be \"victims\" of an infringement of their Convention rights. Ms Maher, Ms Downes, Mrs X and Ms Geraghty had not been involved in the proceedings before the Irish courts. Moreover the applicants had failed to identify a single pregnant woman who could claim to be a \"victim\" of the matters complained of. In this respect the case was in the nature of an actio popularis, particularly as regards Mrs X and Ms Geraghty.", "1. Ms MahDoneer and Ms Downes", "42. The Delegate of the Commission pointed out that the Government ’ s plea as regards the applicant counsellors (Ms Maher and Ms Downes ) conflicted with their concession in the pleadings before the Commission that these applicants were subject to the restraint of the Supreme Court injunction and could therefore properly claim to have suffered an interference with their Article 10 (art. 10) rights.", "43. The Court agrees with the Commission that Ms Maher and Ms Downes can properly claim to be \"victims\" of an interference with their rights since they were directly affected by the Supreme Court injunction. Moreover, it considers that the Government are precluded from making submissions as regards preliminary exceptions which are inconsistent with concessions previously made in their pleadings before the Commission (see, mutatis mutandis, the Pine Valley Developments Ltd and Others v. Ireland judgment of 29 November 1991, Series A no. 222, pp. 21-22, para. 47, and the Kolompar v. Belgium judgment of 24 September 1992, Series A no. 235-C, p. 54, para. 32).", "2. Mrs X and Ms Geraghty", "44. The Court recalls that Article 25 (art. 25) entitles individuals to contend that a law violates their rights by itself, in the absence of an individual measure of implementation, if they run the risk of being directly affected by it (see, inter alia, the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 21, para. 42).", "In the present case the Supreme Court injunction restrained the corporate applicants and their servants and agents from providing certain information to pregnant women. Although it has not been asserted that Mrs X and Ms Geraghty are pregnant, it is not disputed that they belong to a class of women of child-bearing age which may be adversely affected by the restrictions imposed by the injunction. They are not seeking to challenge in abstracto the compatibility of Irish law with the Convention since they run a risk of being directly prejudiced by the measure complained of. They can thus claim to be \"victims\" within the meaning of Article 25 para. 1 (art. 25-1).", "B. Whether the application complies with the six-month rule", "45. At the oral hearing the Government submitted that the application should be rejected under Article 26 (art. 26) for failure to comply with the six-month rule, on the grounds that the applicants were relying on case-law and arguments which were not raised before the domestic courts.", "46. The Court observes that while this plea was made before the Commission (see Appendix II of the Commission ’ s report) it was not re-iterated in the Government ’ s memorial to the Court and was raised solely at the oral hearing. Rule 48 para. 1 of the Rules of Court, however, required them to file it before the expiry of the time-limit laid down for the filing of their memorial, with the result that it must therefore be rejected as being out of time (see, inter alia, the Olsson v. Sweden judgment of 24 March 1988, Series A no. 130, p. 28, para. 56).", "C. Whether the applicants had exhausted domestic remedies", "47. In their memorial the Government submitted - as they had also done before the Commission - that domestic remedies had not been exhausted, as required by Article 26 (art. 26), by:", "1. Open Door as regards its complaints under Articles 8 and 14 (art. 8, art. 14);", "2. both Open Door and Dublin Well Woman in so far as they sought to introduce in their complaint under Article 10 (art. 10) evidence and submissions concerning abortion and the impact of the Supreme Court injunction on women ’ s health that had not been raised before the Irish courts;", "3. Ms Maher, Ms Downes, Mrs X and Ms Geraghty on the grounds that they had made no attempt to exhaust domestic remedies under Irish law and that they had not been involved in any capacity in the relevant proceedings before the Irish courts.", "48. As regards (1) the Court observes that Open Door would have had no prospect of success in asserting these complaints having regard to the reasoning of the Supreme Court concerning the high level of protection afforded to the right to life of the unborn child under Irish law (see paragraphs 16-25 above).", "49. As regards (2) Open Door and Dublin Well Woman are not introducing a fresh complaint in respect of which they have not exhausted domestic remedies. They are merely developing their submissions in respect of complaints which have already been examined by the Irish courts. Article 26 (art. 26) imposes no impediments to applicants in this regard. It is clear from the judgment of the Supreme Court that the applicants had in fact argued that an injunction would adversely affect women ’ s health and that this submission was rejected (see paragraph 18 above).", "50. Finally, as regards (3) it emerges from the judgments of the Supreme Court in the present case and in subsequent cases (see paragraphs 16-25 above) that any action brought by the four individual applicants would have had no prospects of success.", "51. Accordingly, the Government ’ s objection based on non- exhaustion of domestic remedies fails.", "Conclusion", "52. To sum up, the Court is able to take cognisance of the merits of the case as regards all of the applicants.", "III. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)", "53. The applicants alleged that the Supreme Court injunction, restraining them from assisting pregnant women to travel abroad to obtain abortions, infringed the rights of the corporate applicants and the two counsellors to impart information, as well as the rights of Mrs X and Ms Geraghty to receive information. They confined their complaint to that part of the injunction which concerned the provision of information to pregnant women as opposed to the making of travel arrangements or referral to clinics (see paragraph 20 above). They invoked Article 10 (art. 10) which provides:", "\"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.\"", "54. In their submissions to the Court the Government contested these claims and also contended that Article 10 (art. 10) should be interpreted against the background of Articles 2, 17 and 60 (art. 2, art. 17, art. 60) of the Convention the relevant parts of which state:", "Article 2 (art. 2)", "\"1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "...\"", "Article 17 (art. 17)", "\"Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.\"", "Article 60 (art. 60)", "\"Nothing in [the] Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party.\"", "A. Was there an interference with the applicants ’ rights?", "55. The Court notes that the Government accepted that the injunction interfered with the freedom of the corporate applicants to impart information. Having regard to the scope of the injunction which also restrains the \"servants or agents\" of the corporate applicants from assisting \"pregnant women\" (see paragraph 20 above), there can be no doubt that there was also an interference with the rights of the applicant counsellors to impart information and with the rights of Mrs X and Ms Geraghty to receive information in the event of being pregnant.", "To determine whether such an interference entails a violation of Article 10 (art. 10), the Court must examine whether or not it was justified under Article 10 para. 2 (art. 10-2) by reason of being a restriction \"prescribed by law\" which was necessary in a democratic society on one or other of the grounds specified in Article 10 para. 2 (art. 10-2).", "B. Was the restriction \"prescribed by law\"?", "1. Arguments presented by those appearing before the Court", "56. Open Door and Dublin Well Woman submitted that the law was not formulated with sufficient precision to have enabled them to foresee that the non-directive counselling in which they were involved would be restrained by the courts. It was not clear from the wording of Article 40.3.3 o of the Constitution (the Eighth Amendment), which gave rise to many difficulties of interpretation and application, that those giving information to pregnant women would be in breach of this provision. In the same way, it was not clear whether it could have been used as a means of prohibiting access to foreign periodicals containing advertisements for abortion facilities abroad or of restricting other activities involving a \"threat\" to the life of the unborn such as travelling abroad to have an abortion.", "In this respect the applicants pointed out that the provision had been criticised at the time of its enactment by both the Attorney General and the Director of Public Prosecutions on the grounds that it was ambiguous and uncertain. Furthermore, although there was an expectation that there would be legislation to clarify the meaning of the provision, none was in fact enacted.", "They also maintained that on its face Article 40.3.3 o is addressed only to the State and not to private persons. Thus they had no way of knowing that it would apply to non-directive counselling by private agencies. Indeed, since none of Ireland ’ s other laws concerning abortion forbids such counselling or travelling abroad to have an abortion they had good reason to believe that this activity was lawful.", "Finally, the insufficient precision of the Eighth Amendment was well reflected in the recent judgment of the Supreme Court of 5 March 1992 in The Attorney General v. X and Others which, as conceded by the Government, had the consequence that it would now be lawful to provide information concerning abortion services abroad in certain circumstances (see paragraph 25 above).", "In sum, given the uncertain scope of this provision and the considerable doubt as to its meaning and effect, even amongst the most authoritative opinion, the applicants could not have foreseen that such non-directive counselling was unlawful.", "57. The Government submitted that the legal position was reasonably foreseeable with appropriate legal advice, within the meaning of the Court ’ s case-law. The applicants ought to have known that an injunction could be obtained against them to protect or defend rights guaranteed by the Constitution, or recognised at common law, or under the principles of the law of equity. Indeed, evidence had now come to light subsequent to the publication of the Commission ’ s report that Dublin Well Woman had actually received legal advice concerning the implications of the wording of the Amendment which warned that a court injunction to restrain their counselling activities was possible (see paragraph 10 in fine above). It was thus not open to the applicants, against this background, to argue that the injunction was unforeseeable.", "58. For the Commission, the Eighth Amendment did not provide a clear basis for the applicants to have foreseen that providing information about lawful services abroad would be unlawful. A law restricting freedom of expression across frontiers in such a vital area required particular precision to enable individuals to regulate their conduct accordingly. Since it was not against the criminal law for women to travel abroad to have an abortion, lawyers could reasonably have concluded that the provision of information did not involve a criminal offence. In addition, the Government had been unable to show, with reference to case-law, that the applicant companies could have foreseen that their counselling service was a constitutional tort (see paragraph 35 above). Moreover, the wording of the Amendment suggested that legislation was to have been enacted regulating the protection of the rights of the unborn.", "2. Court ’ s examination of the issue", "59. This question must be approached by considering not merely the wording of Article 40.3.3 o in isolation but also the protection given under Irish law to the rights of the unborn in statute law and in case-law (see paragraphs 28-35 above).", "It is true that it is not a criminal offence to have an abortion outside Ireland and that the practice of non-directive counselling of pregnant women did not infringe the criminal law as such. Moreover, on its face the language of Article 40.3.3 o appears to enjoin only the State to protect the right to life of the unborn and suggests that regulatory legislation will be introduced at some future stage.", "On the other hand, it is clear from Irish case-law, even prior to 1983, that infringement of constitutional rights by private individuals as well as by the State may be actionable (see paragraph 35 above). Furthermore, the constitutional obligation that the State defend and vindicate personal rights \"by its laws\" has been interpreted by the courts as not being confined merely to \"laws\" which have been enacted by the Irish Parliament ( Oireachtas ) but as also comprehending judge-made \"law\". In this regard the Irish courts, as the custodians of fundamental rights, have emphasised that they are endowed with the necessary powers to ensure their protection (ibid.).", "60. Taking into consideration the high threshold of protection of the unborn provided under Irish law generally and the manner in which the courts have interpreted their role as the guarantors of constitutional rights, the possibility that action might be taken against the corporate applicants must have been, with appropriate legal advice, reasonably foreseeable (See the Sunday Times v. the United Kingdom judgment of 26 April 1979, Series A no. 30, p. 31, para. 49). This conclusion is reinforced by the legal advice that was actually given to Dublin Well Woman that, in the light of Article 40.3.3 o, an injunction could be sought against its counselling activities (see paragraph 10 in fine above).", "The restriction was accordingly \"prescribed by law\".", "C. Did the restriction have aims that were legitimate under Article 10 para. 2 (art. 10-2)?", "61. The Government submitted that the relevant provisions of Irish law are intended for the protection of the rights of others - in this instance the unborn -, for the protection of morals and, where appropriate, for the prevention of crime.", "62. The applicants disagreed, contending inter alia that, in view of the use of the term \"everyone\" in Article 10 para. 1 (art. 10-1) and throughout the Convention, it would be illogical to interpret the \"rights of others\" in Article 10 para. 2 (art. 10-2) as encompassing the unborn.", "63. The Court cannot accept that the restrictions at issue pursued the aim of the prevention of crime since, as noted above (paragraph 59), neither the provision of the information in question nor the obtaining of an abortion outside the jurisdiction involved any criminal offence. However, it is evident that the protection afforded under Irish law to the right to life of the unborn is based on profound moral values concerning the nature of life which were reflected in the stance of the majority of the Irish people against abortion as expressed in the 1983 referendum (see paragraph 28 above). The restriction thus pursued the legitimate aim of the protection of morals of which the protection in Ireland of the right to life of the unborn is one aspect. It is not necessary in the light of this conclusion to decide whether the term \"others\" under Article 10 para. 2 (art. 10-2) extends to the unborn.", "D. Was the restriction necessary in a democratic society?", "64. The Government submitted that the Court ’ s approach to the assessment of the \"necessity\" of the restraint should be guided by the fact that the protection of the rights of the unborn in Ireland could be derived from Articles 2, 17 and 60 (art. 2, art. 17, art. 60) of the Convention. They further contended that the \"proportionality\" test was inadequate where the rights of the unborn were at issue. The Court will examine these issues in turn.", "1. Article 2 (art. 2)", "65. The Government maintained that the injunction was necessary in a democratic society for the protection of the right to life of the unborn and that Article 10 (art. 10) should be interpreted inter alia against the background of Article 2 (art. 2) of the Convention which, they argued, also protected unborn life. The view that abortion was morally wrong was the deeply held view of the majority of the people in Ireland and it was not the proper function of the Court to seek to impose a different viewpoint.", "66. The Court observes at the outset that in the present case it is not called upon to examine whether a right to abortion is guaranteed under the Convention or whether the foetus is encompassed by the right to life as contained in Article 2 (art. 2). The applicants have not claimed that the Convention contains a right to abortion, as such, their complaint being limited to that part of the injunction which restricts their freedom to impart and receive information concerning abortion abroad (see paragraph 20 above).", "Thus the only issue to be addressed is whether the restrictions on the freedom to impart and receive information contained in the relevant part of the injunction are necessary in a democratic society for the legitimate aim of the protection of morals as explained above (see paragraph 63). It follows from this approach that the Government ’ s argument based on Article 2 (art. 2) of the Convention does not fall to be examined in the present case. On the other hand, the arguments based on Articles 17 and 60 (art. 17, art. 60) fall to be considered below (see paragraphs 78 and 79).", "2. Proportionality", "67. The Government stressed the limited nature of the Supreme Court ’ s injunction which only restrained the provision of certain information (see paragraph 20 above). There was no limitation on discussion in Ireland about abortion generally or the right of women to travel abroad to obtain one. They further contended that the Convention test as regards the proportionality of the restriction was inadequate where a question concerning the extinction of life was at stake. The right to life could not, like other rights, be measured according to a graduated scale. It was either respected or it was not. Accordingly, the traditional approach of weighing competing rights and interests in the balance was inappropriate where the destruction of unborn life was concerned. Since life was a primary value which was antecedent to and a prerequisite for the enjoyment of every other right, its protection might involve the infringement of other rights such as freedom of expression in a manner which might not be acceptable in the defence of rights of a lesser nature.", "The Government also emphasised that, in granting the injunction, the Supreme Court was merely sustaining the logic of Article 40.3.3 o of the Constitution. The determination by the Irish courts that the provision of information by the relevant applicants assisted in the destruction of unborn life was not open to review by the Convention institutions.", "68. The Court cannot agree that the State ’ s discretion in the field of the protection of morals is unfettered and unreviewable (see, mutatis mutandis, for a similar argument, the Norris v. Ireland judgment of 26 October 1988, Series A no. 142, p. 20, para. 45).", "It acknowledges that the national authorities enjoy a wide margin of appreciation in matters of morals, particularly in an area such as the present which touches on matters of belief concerning the nature of human life. As the Court has observed before, it is not possible to find in the legal and social orders of the Contracting States a uniform European conception of morals, and the State authorities are, in principle, in a better position than the international judge to give an opinion on the exact content of the requirements of morals as well as on the \"necessity\" of a \"restriction\" or \"penalty\" intended to meet them (see, inter alia, the Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, p. 22, para. 48, and the Müller and Others v. Switzerland judgment of 24 May 1988, Series A no. 133, p. 22, para. 35).", "However this power of appreciation is not unlimited. It is for the Court, in this field also, to supervise whether a restriction is compatible with the Convention.", "69. As regards the application of the \"proportionality\" test, the logical consequence of the Government ’ s argument is that measures taken by the national authorities to protect the right to life of the unborn or to uphold the constitutional guarantee on the subject would be automatically justified under the Convention where infringement of a right of a lesser stature was alleged. It is, in principle, open to the national authorities to take such action as they consider necessary to respect the rule of law or to give effect to constitutional rights. However, they must do so in a manner which is compatible with their obligations under the Convention and subject to review by the Convention institutions. To accept the Government ’ s pleading on this point would amount to an abdication of the Court ’ s responsibility under Article 19 (art. 19) \"to ensure the observance of the engagements undertaken by the High Contracting Parties ...\".", "70. Accordingly, the Court must examine the question of \"necessity\" in the light of the principles developed in its case-law (see, inter alia, the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216, pp. 29-30, para. 59). It must determine whether there existed a pressing social need for the measures in question and, in particular, whether the restriction complained of was \"proportionate to the legitimate aim pursued\" (ibid.).", "71. In this context, it is appropriate to recall that freedom of expression is also applicable to \"information\" or \"ideas\" that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no \"democratic society\" (see, inter alia, the above-mentioned Handyside judgment, Series A no. 24, p. 23, para. 49).", "72. While the relevant restriction, as observed by the Government, is limited to the provision of information, it is recalled that it is not a criminal offence under Irish law for a pregnant woman to travel abroad in order to have an abortion. Furthermore, the injunction limited the freedom to receive and impart information with respect to services which are lawful in other Convention countries and may be crucial to a woman ’ s health and well-being. Limitations on information concerning activities which, notwithstanding their moral implications, have been and continue to be tolerated by national authorities, call for careful scrutiny by the Convention institutions as to their conformity with the tenets of a democratic society.", "73. The Court is first struck by the absolute nature of the Supreme Court injunction which imposed a \"perpetual\" restraint on the provision of information to pregnant women concerning abortion facilities abroad, regardless of age or state of health or their reasons for seeking counselling on the termination of pregnancy. The sweeping nature of this restriction has since been highlighted by the case of The Attorney General v. X and Others and by the concession made by the Government at the oral hearing that the injunction no longer applied to women who, in the circumstances as defined in the Supreme Court ’ s judgment in that case, were now free to have an abortion in Ireland or abroad (see paragraph 25 above).", "74. On that ground alone the restriction appears over broad and disproportionate. Moreover, this assessment is confirmed by other factors.", "75. In the first place, it is to be noted that the corporate applicants were engaged in the counselling of pregnant women in the course of which counsellors neither advocated nor encouraged abortion, but confined themselves to an explanation of the available options (see paragraphs 13 and 14 above). The decision as to whether or not to act on the information so provided was that of the woman concerned. There can be little doubt that following such counselling there were women who decided against a termination of pregnancy. Accordingly, the link between the provision of information and the destruction of unborn life is not as definite as contended. Such counselling had in fact been tolerated by the State authorities even after the passing of the Eighth Amendment in 1983 until the Supreme Court ’ s judgment in the present case. Furthermore, the information that was provided by the relevant applicants concerning abortion facilities abroad was not made available to the public at large.", "76. It has not been seriously contested by the Government that information concerning abortion facilities abroad can be obtained from other sources in Ireland such as magazines and telephone directories (see paragraphs 23 and 27 above) or by persons with contacts in Great Britain. Accordingly, information that the injunction sought to restrict was already available elsewhere although in a manner which was not supervised by qualified personnel and thus less protective of women ’ s health. Furthermore, the injunction appears to have been largely ineffective in protecting the right to life of the unborn since it did not prevent large numbers of Irish women from continuing to obtain abortions in Great Britain (see paragraph 26 above).", "77. In addition, the available evidence, which has not been disputed by the Government, suggests that the injunction has created a risk to the health of those women who are now seeking abortions at a later stage in their pregnancy, due to lack of proper counselling, and who are not availing themselves of customary medical supervision after the abortion has taken place (see paragraph 26 above). Moreover, the injunction may have had more adverse effects on women who were not sufficiently resourceful or had not the necessary level of education to have access to alternative sources of information (see paragraph 76 above). These are certainly legitimate factors to take into consideration in assessing the proportionality of the restriction.", "3. Articles 17 and 60 (art. 17, art. 60)", "78. The Government, invoking Articles 17 and 60 (art. 17, art. 60) of the Convention, have submitted that Article 10 (art. 10) should not be interpreted in such a manner as to limit, destroy or derogate from the right to life of the unborn which enjoys special protection under Irish law.", "79. Without calling into question under the Convention the regime of protection of unborn life that exists under Irish law, the Court recalls that the injunction did not prevent Irish women from having abortions abroad and that the information it sought to restrain was available from other sources (see paragraph 76 above). Accordingly, it is not the interpretation of Article 10 (art. 10) but the position in Ireland as regards the implementation of the law that makes possible the continuance of the current level of abortions obtained by Irish women abroad.", "4. Conclusion", "80. In the light of the above, the Court concludes that the restraint imposed on the applicants from receiving or imparting information was disproportionate to the aims pursued. Accordingly there has been a breach of Article 10 (art. 10).", "IV. ALLEGED VIOLATIONS OF ARTICLES 8 AND 14 (art. 8, art. 14)", "81. Open Door also alleged a violation of the right to respect for private life contrary to Article 8 (art. 8) claiming that it should be open to it to complain of an interference with the privacy rights of its clients. Similarly, Mrs X and Ms Geraghty complained under this provision that the denial to them of access to information concerning abortion abroad constituted an unjustifiable interference with their right to respect for private life.", "Open Door further claimed discrimination contrary to Article 14 in conjunction with Article 8 (art. 14+8) alleging that the injunction discriminated against women since men were not denied information \"critical to their reproductive and health choices\". It also invoked Article 14 in conjunction with Article 10 (art. 14+10) claiming discrimination on the grounds of political or other opinion since those who seek to counsel against abortion are permitted to express their views without restriction.", "82. The applicants in the Dublin Well Woman case, in their memorial to the Court, similarly complained of discrimination contrary to Article 14, firstly, in conjunction with Article 8 (art. 14+8) on the same basis as Open Door, and secondly, in conjunction with Article 10 (art. 14+10) on the grounds that it followed from the decision of the Court of Justice of the European Communities in the Grogan case (see paragraph 24 above) that, had Dublin Well Woman been an \"economic operator\", they would have been permitted to distribute and receive such information.", "83. The Court notes that the complaints of discrimination made by the applicants in Dublin Well Woman were made for the first time in the proceedings before the Court and that consequently it may be questioned whether it has jurisdiction to examine them (see paragraph 40 above). However, having regard to its finding that there had been a breach of Article 10 (art. 10) (see paragraph 80 above) the Court considers that it is not necessary to examine either these complaints or those made by Open Door, Mrs X and Ms Geraghty.", "V. APPLICATION OF ARTICLE 50 (art. 50)", "84. Article 50 (art. 50) provides as follows:", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "A. Damage", "85. Open Door made no claim for compensation for damage. Dublin Well Woman, on the other hand, claimed pecuniary damages amounting to IR£62,172 in respect of loss of income for the period January 1987 to June 1988 due to the discontinuance of the pregnancy counselling service.", "86. The Government submitted that the claim should be rejected. In particular, they contended that it was made belatedly; that it was inconsistent with Dublin Well Woman ’ s status as a non-profit- making company to claim pecuniary damage and was excessive.", "87. The Court notes that the claim was made on 24 February 1992 and thus well in advance of the hearing of the case on 24 March 1992. Furthermore, it considers that even a non-profit- making company such as the applicant can incur losses for which it should be compensated.", "The Government have submitted that it was unclear on what basis or in what manner the sum of IR£62,172 was computed and Dublin Well Woman has not indicated how these losses were calculated or sought to substantiate them. Nevertheless, the discontinuance of the counselling service must have resulted in a loss of income. Having regard to equitable considerations as required by Article 50 (art. 50), the Court awards IR£25,000 under this head.", "B. Costs and expenses", "1. Open Door", "88. Open Door claimed the sum of IR£68,985.75 referable to both the national proceedings and to those before the Convention institutions. This sum did not take into account what had been received by way of legal aid from the Council of Europe in respect of fees. On 1 May 1992 Mr Cole, a lawyer who had appeared on behalf of Open Door, filed a supplementary claim for US$24,300 on behalf of the Centre for Constitutional Rights.", "89. The Government considered the claim made by Open Door to be reasonable.", "90. The Court observes that the claim made by Open Door includes an amount for the services of Mr Cole of the Centre for Constitutional Rights. It rejects his supplementary claim on behalf of the Centre for Constitutional Rights which was not itself a party to the proceedings. However, it allows Open Door ’ s uncontested claim less 6,900 French francs paid by way of legal aid in respect of fees.", "2. Dublin Well Woman", "91. Dublin Well Woman claimed a total sum of IR£63,302.84 for costs and expenses incurred in the national proceedings. They further claimed IR£21,084.95 and IR£27,116.30 in respect of proceedings before the Commission and the Court. These sums did not take into account what had been received by way of legal aid in respect of fees and expenses.", "92. The Government accepted that the claims for domestic costs were reasonable. However they submitted that, in the light of the claim made by Open Door, IR£16,000 and IR£19,000 were more appropriate sums for the proceedings before the Commission and Court.", "93. The Court also considers that the amount claimed in respect of the proceedings before the Commission and Court is excessive taking into account the fees claimed by Open Door and the differences between the two applications. It holds that Dublin Well Woman should be awarded IR£100,000 under this head less 52,577 French francs already paid by way of legal aid in respect of fees and expenses.", "94. The amounts awarded in this judgment are to be increased by any value-added tax that may be chargeable." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. Mr Ştefan Panaitescu (“the applicant”) was a Romanian national, born in 1944, who lived in Alejd, Bihor County. On 3 December 2006, he died and the application was continued by his son Mr Alexandru Leonard Panaitescu.", "A. Civil actions seeking the acknowledgement and enforcement of the right to free medication and free medical assistance under Law no. 189/2000", "8. On 8 May 2002, the applicant filed an action against the Bihor County Pensions Office seeking the annulment of a decision denying him the benefit of Law no. 189/2000, which provided for damages and certain facilities for persons persecuted by the Romanian authorities between 6 September 1940 and 6 March 1945 on ethnic grounds.", "By a decision of 3 June 2002, the Oradea Appeal Court found for the applicant, ordering the defendant to award him the benefits provided for in the above-mentioned Law. The decision became final on 28 January 2003.", "Accordingly, on 2 April 2003 the commission responsible for the enforcement of Law no. 189/2000 issued a new decision confirming the applicant ’ s status as a refugee and consequently as a beneficiary of that Law from 1 April 2001; the decision confirmed that, inter alia, the applicant was entitled to obtain priority free medical assistance and medicines, both when hospitalised and as an outpatient.", "9. On 20 April 2005, the applicant was diagnosed with cancer and on 4 May 2005, he underwent surgery at Oradea State Hospital for the removal of a tumour on the right kidney. Following medical tests, it was established that the tumour had reached stage III and that the lung was also affected. According to the applicant, although he was hospitalised in the oncology ward, the medical staff failed to administer him specific oncological treatment and he was administered only perfusions with vitamins and normal saline solution.", "10. In these circumstances, the applicant approached the Cluj Napoca Oncological Institute.", "On 16 September 2005, by a letter addressed to Oradea Hospital, Dr A.U., an oncologist from the Cluj Napoca Oncological Institute, confirmed a partial remission of the illness in the applicant ’ s case, and therefore recommended that he continue being treated with Avastin and Roferon, which he had started at his own expense in July 2005. This recommendation was later reiterated in a letter of 12 January 2006, in which Dr. A.U also acknowledged that the Avastin medicine, which had been administered to the patient twice a week from 1 July 2005, had been “procured and paid for in full by Mr. Panaitescu during the entire period of treatment”.", "11. However, as he could not afford to continue indefinitely bearing the costs of the treatment, which was financially burdensome, the applicant notified the Bihor Health Insurance Service ( Casa Judeţeană de Asigurări de Sănătate Bihor – “the CAS”) and the Bihor Public Health Office ( Direcţia de Sănătate Publică Bihor ) accordingly on 22 and 18 August 2005 respectively and sent numerous requests to the National Health Insurance Service ( Casa Naţională de Asigurări de Sănătate - “the CNAS”), seeking to be granted the recommended drugs free of charge.", "On 27 September 2005, through a local bailiff, he filed a notification with the CNAS requesting, on the basis of the relevant legislation and supporting documents, that funds be made available for the drugs recommended by his oncologist, namely Roferon and Avastin. The notification read as follows in its relevant part:", "“I ask you to take into consideration that in case of failure to grant my request, you will incur civil and criminal liability for causing my death .... The director of the Bihor Public Health Office, Dr M.A., has confirmed to me that you have rejected my request. This fact is irrefutable proof of your guilt. ... Considering the urgent nature of the case, I request a solution within a maximum of ten days, any delay causing irreversible trauma, and after the expiry of that term, I shall be obliged to apply for an injunction in this regard and to initiate criminal proceedings because any refusal is tantamount to murder. I enclose the documents certifying my right and your obligation according to the Law governing the organisation of CNAS, the sole institution able to guarantee my right to life on the State ’ s behalf.”", "The applicant addressed numerous other petitions to the relevant institutions, including the Government of Romania, but to no avail.", "12. In addition, “in order to illustrate the distress he was suffering” the applicant informed the Court that since he was unable to pay for the drugs, he had applied to the Hamburg University Clinic, on the basis of a recommendation made by Dr A.U., to be included in the experimental trials of Bayer Concern for a new drug called Nexavar. On 18 May 2006, the applicant signed a contract with the aforesaid institution and started receiving treatment with Nexavar, which obliged him to be present at the clinic once every two months. No other information regarding the execution of that contract was submitted.", "B. Actions to oblige the CNAS and the CAS to provide him with specific treatment", "13. On 10 November 2005 the applicant brought a liability action against the CNAS and the CAS, requesting the Oradea Court of Appeal to order the defendants to provide him with the medicines Roferon and Avastin free of charge and with priority for the period recommended by his doctors, as well as with any other drugs prescribed by his doctors; he also asked to be reimbursed the cost of the drugs already paid for by him from July 2005 to date. He requested the court to notify the relevant institutions that their failure to do so would have the civil and criminal consequences of putting his life at risk.", "By a judgment of 12 December 2005, the Oradea Appeal Court allowed the applicant ’ s claims. On the basis of medical documents and an opinion which attested to a remission of the illness after the use of the drugs Avastin and Roferon taken together, the court ordered the CNAS and the CAS to provide the applicant with the two requested drugs free of charge and with priority for the period recommended by the doctors, together with any other medicines prescribed by the doctors; it also ordered them to reimburse the applicant the cost of the medicines prescribed by the doctors borne so far by the applicant himself.", "The court dismissed the CNAS ’ s defence that according to Government Decision no. 235/2005 the applicant could not be provided with Avastin free of charge, in so far as the drug Avastin was not on the list of drugs available to outpatients and therefore could not be subsidised from the National Health Insurance Fund (“the FNUASS”). The court argued that any list of medicines is susceptible of being amended all the time; otherwise, the use of any new drug proved to have positive effects on the evolution of cancer would be impossible for at least one or two years after it became available owing to administrative barriers and logistical formalities meant to ensure that its cost could be reimbursed by the FNUASS; this delay would have only negative repercussions for the health of the population. Furthermore, the court held that in so far as in the applicant ’ s case there was no other drug available as a replacement for Avastin, and considering that failure to use it would have repercussions for the evolution of his illness, the State authorities should have made it possible to have Avastin rapidly included on the list of reimbursable drugs.", "14. The CNAS and the CAS contested that judgment before the High Court of Cassation and Justice, mainly arguing that the first-instance court was asking them to reimburse the applicant the cost of medicines that were not included on the list of reimbursable drugs. For the same reason, Avastin could not be provided free to the applicant.", "On 19 April 2006, the High Court of Cassation and Justice dismissed the appeal and upheld the first-instance court ’ s judgment. The court held that the appellants ’ contention that the applicant had been treated free of charge with Intron A (the equivalent of Roferon) from November 2005 until April 2006 was not supported by evidence and, in any event, that period did not cover the entire time during which the applicant should have been provided with medication free of charge.", "At the same time, noting that the Avastin had already been approved by the National Medicines Agency in June 2005, the court considered that nothing prevented the appellants to have initiated legal procedures to have Avastin included on the list of reimbursable medicines starting with that moment, especially having in mind that no other equivalent of Avastin with similar therapeutical effects was included on that list.", "15. On 23 May 2006 the applicant wrote to the CAS requesting the urgent enforcement of that final judgment, arguing that the remission of the illness had ceased and the illness had even worsened on account of the delays caused by the passivity of the State authorities. He also invoked Article 2 of the Convention, requesting the protection of his right to life.", "16. By a letter of 5 September 2006 the applicant informed the Court that the judgment had not been enforced; moreover, he submitted that the CAS had no intention of complying with the final judgment, as proved by the fact that they had contested its enforcement and also lodged an extraordinary appeal, requesting that it be set aside (see paragraphs 17-18 below).", "He further stated that the drug Roferon had been replaced by Intron, which he had stopped taking in September 2006 as it caused side effects and because the medical tests showed that the cancer had spread since he had been taking that drug. The applicant also informed the Court that on 1 August 2006 the ordinary treatment with cytostatics had been stopped with no explanation.", "The applicant also submitted the results of medical tests carried out during his treatment with Avastin and Roferon, dated 16 September 2005, which confirmed that the disease was in partial remission, and blood test results dated 3 March 2006, after the treatment had ceased, which allegedly attested to an aggravation of the illness.", "17. On 6 June 2006, the CAS contested the enforcement of the judgment of 12 December 2005, which had become final on 19 April 2006, alleging that the institution could not provide the applicant with the requested medicine, since it was not entitled to buy and sell drugs and medicine. Moreover, their relationship with pharmacies was one of cooperation, and not one of subordination, consequently they could not oblige them to provide the requested medicines to the applicant free of charge.", "Concerning the applicant ’ s pecuniary claims, the CAS considered that although the evidence submitted by the applicant proved that some medication had been bought from abroad, the amounts of money paid were unspecified, and thus they were not able to make any payment in that regard. The CAS also asked that the enforcement of the disputed judgment be suspended pending the contestation proceedings.", "18. The applicant ’ s son informed the Court that those proceedings had ended on 22 March 2010, when the contestation was dismissed in a final judgment; the CAS submitted that the pecuniary claims had become time-barred, while the obligation to provide the applicant with the medicine in question had been left without any object following the applicant ’ s death.", "The CAS also informed that their extraordinary appeal against the disputed judgment (see paragraph 16 above) had also been dismissed by the High Court of Cassation and Justice", "No copy of any judgment allegedly given in these proceedings was submitted." ]

[ "II. RELEVANT DOMESTIC LAW", "19. Law no. 189/2000 provides for damages for persons persecuted on ethnic grounds who are refugees from the territories occupied during the Second World War. Section 5 (a) provides that persons whose cases are regulated by sections 1 and 3 “shall benefit from priority free medical care and drugs, both as outpatients and when hospitalised.”", "20. Government decision no. 627/2005 amends decision no. 235/2005 regarding the approval for the year 2005 of the list of drugs from which insured persons being treated as outpatients, with or without a personal contribution, could benefit on the basis of a medical prescription. The persons concerned by the special laws, who were entitled to free medication paid for by the National Health Insurance Fund, were entitled to full reimbursement of the cost of all the medicines included on the list. Avastin was not included on the list.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION", "21. The applicant complained that the State institutions, by “cynically and abusively” refusing to enforce the final court decisions granting him the appropriate medical treatment for his terminal disease free of charge, put his life at risk, which also constituted inhuman treatment, in breach of Articles 2 and 3 of the Convention.", "In so far as relevant, the Articles relied on by the applicant read as follows:", "Article 2", "“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...”", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Admissibility", "22. The Government contested the applicant ’ s allegations.", "23. The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits", "24. Having regard to the circumstances of the present case, and more particularly to the applicant ’ s death pending the proceedings before this Court, the complaints will be examined firstly from the standpoint of Article 2 of the Convention, before an assessment is made of whether it is necessary to address them under Article 3 also (see Gagiu v. Romania, no. 63258/00, § 54, 24 February 2009).", "1. The parties ’ submissions", "25. The Government relied on the information submitted by the CNAS and the CAS, which revealed that the applicant had been provided with free medication, namely Intron A, identical to Roferon, for the periods between November 2005 and April 2006 and May and October 2006. Besides Intron A, the applicant had received other medication free of charge from 1 December 2005 until his death, such as Preductal, Enalapril, Betaloc, Ampiciline, Trimetazidine, Neorecormon, Controloc, Tramadol etc. He had also, while hospitalised, received appropriate medical care.", "In so far as Avastin had been included on the list of reimbursable drugs only from December 2006, it had not been possible to grant it to the applicant free of charge before that date.", "The Government thus contended that the State ’ s obligation to protect the applicant ’ s health by providing him with the required medical services and appropriate free medication had been fulfilled.", "Furthermore, there was no link between the applicant ’ s death and the acts or omissions of the State authorities, the applicant not having provided any medical document to support such a finding.", "Moreover, according to the Court ’ s case-law, where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, the Court does not accept that matters such as error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (see, among many others, Byrzykowski v. Poland, no. 11562/05, § 104, 27 June 2006 ).", "Having regard to the fact that most of the medical treatment recommended by the doctors had been provided free of charge to the applicant for the above - mentioned periods of time, his complaint that he had been submitted to inhuman and degrading treatment was not substantiated.", "The applicant ’ s complaints under Articles 2 and 3 were therefore ill - founded.", "26. The applicant contended that the two drugs recommended by the specialist doctors, namely Roferon and Avastin, which were essential for successful treatment, needed to be administered concomitantly, and not alternately; this issue had been confirmed by medical correspondence attesting to a remission of the disease in the applicant ’ s case as a result of the concomitant administration of both drugs for a specific period of time.", "Therefore, although Intron A had been administered to the applicant free of charge, albeit not for the whole duration of the treatment and only after strenuous efforts on his behalf, it had not had the expected positive effects inasmuch as it had not been permanently combined with Avastin. As the latter drug had not been provided to the applicant by the State authorities, he had procured it at his own expense for as long as he could afford it, namely for only a few months (July to December 2005), since Avastin was an expensive medicine.", "In view of the medical documents, which proved that there had been a remission of the disease following the concomitant administration of both drugs recommended by the doctors, and having regard also to the domestic courts ’ judgments upholding the applicant ’ s right to be granted those medicines free of charge, the causal link between the applicant ’ s death and the State authorities ’ failure to comply with their obligations was self - evident. Furthermore, the authorities ’ wrongful refusal to enforce the judgments, in spite of the fact that they were aware of the applicant ’ s deteriorating health, had subjected him to deep psychological suffering in breach of Article 3 of the Convention.", "2. The Court ’ s assessment", "27. The Court observes that the first sentence of Article 2 imposes a positive obligation on Contracting Parties. The States ’ obligation to protect the right to life is not limited to refraining from taking life intentionally and unlawfully but also implies the duty to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998 - III).", "28. The Court has accepted that it cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage their responsibility under Article 2. However, where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (see Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000 - V, and Öneryıldız v. Turkey [GC], no. 48939/99, § 71, ECHR 2004 - XII).", "29. The Court reiterates that its approach to the interpretation of Article 2 is guided by the idea that the object and purpose of the Convention as an instrument for the protection of individual human beings requires its provisions to be interpreted and applied in such a way as to make its safeguards practical and effective (see, for example, Yaşa v. Turkey, 2 September 1998, § 64, Reports of Judgments and Decisions 1998-VI).", "30. In the instant case the complaint before the Court is that the national authorities did not do all that was expected of them, not only by the applicant, but also by the domestic courts (see paragraphs 13 - 14 above), who ordered them to provide the applicant with the necessary medication to treat the disease which finally led to his death.", "The Court ’ s task is, therefore, to determine whether, given the circumstances of the case, the State did all that could have been required of it to prevent the applicant ’ s life from being avoidably put at risk by timely providing him with appropriate health care (see, mutatis mutandis, L.C.B ., cited above, § 36). In its assessment of this issue, the Court considers that it must be guided by the due diligence test, since the State ’ s obligation in that respect is one of means, not of result. Notably, the mere fact of a deterioration of the applicant ’ s state of health, could not suffice, as such, for a finding of a violation of the State ’ s positive obligations under Articles 2 or 3 of the Convention, if, on the other hand, it can be established that the relevant domestic authorities have in timely fashion resorted to all reasonably possible medical measures in a conscientious effort to hinder development of the disease in question (see, mutatis mutandis, Aleksanyan v. Russia, no. 46468/06, § 139, 22 December 2008 ).", "31. The Court firstly notes that on the basis of Law no. 189/2000 the applicant was entitled to free medication and medical assistance, to be provided to him with priority. This right was acknowledged by the domestic courts in the proceedings culminating in the judgment of 3 June 2002 and then confirmed by the commission that issued the decision of 2 April 2003 recognising the applicant ’ s entitlement to the relevant rights from 1 April 2001 (see paragraph 8 above).", "The same right was confirmed in the proceedings lodged by the applicant in 2005 in connection with the recommended anticancer treatment. The domestic courts, both at first instance and on appeal, held in favour of the applicant and ordered the defendants, State authorities, to provide him with the prescribed anticancerous medication and reimburse him any costs that he had incurred for such medicine; furthermore, the courts dismissed the defendants ’ argument according to which Avastin had not been provided because it was not on the list of reimbursable medicines, having regard also to the fact that the drug had not been replaced by any equivalent one.", "32. It follows that, in the present case the applicant ’ s access to free medical care, as he was entitled, was more than once hindered, as he needed to make constant and repeated efforts to be granted the requisite anticancerous medical treatment free of charge. For a while, he bore the cost of the treatment, despite the final judgments conferring on him the right to be granted the prescribed medicines free of charge and with priority.", "The delayed and partial enforcement of the judgment of 12 December 2005 ordering the State authorities to grant him free of charge the drugs recommended by his doctors coincided with a deterioration in his health, especially once the applicant could no longer afford to bear the cost of the treatment personally. This deterioration culminated in the death of the applicant, on 3 December 2006.", "33. In the light of the foregoing, the Court considers that the applicant ’ s reasons to request something which the medical experts had prescribed him and for which he did not have to pay, according to the domestic courts ’ ruling, could not be said to have been whimsical.", "34. The Court further notes that in spite of the fact that the applicant was entitled to be provided with medicines free of charge, that right was repeatedly contested, mainly on bureaucratic grounds (see also paragraphs 13-14 above), with the result that he was not able to properly pursue his prescribed treatment; furthermore, in spite of the fact that the domestic courts found no justification for State authorities ’ conduct, the required treatment was still not provided to the applicant in due time, as required by the gravity of his illness.", "35. The Court further considers in this connection that, just as it is not open to a State authority to cite lack of funds or resources as an excuse for not honouring a judgment debt (see, mutatis mutandis, Burdov v. Russia, no. 59498/00, § 35, ECHR 2002 - III), the same principle applies a fortiori when there is a need to secure the practical and effective protection of the right protected by Article 2, a right fundamental in the scheme of the Convention.", "36. Hence, while being aware of the serious and complex nature of the illness the applicant was suffering from, the Court cannot ignore that, according to the available medical information, the recommended drugs proved to have positive effects for as long as they were administered, and that the doctor noted a “partial remission of the illness” while the treatment was taken; is why the Court considers that the State authorities were or ought to have been aware of the need for appropriate treatment in the applicant ’ s case, in the lack of which a real and immediate risk to the applicant ’ s life existed. This aspect was also revealed by the domestic courts ’ conclusions. Yet, the authorities failed to take timely measures within the scope of their powers that might have been, and indeed were, expected of them, as confirmed by the judgment of 12 December 2005, to avoid that risk. Therefore, the Court cannot rule out that the State ’ s failure to provide the applicant with appropriate medical treatment has contributed to an aggravation of his disease.", "37. The Court thus holds that in the very particular circumstances of the present case, the State failed to prevent the applicant ’ s life from being avoidably put at risk by not providing him the appropriate health-care as ordered by the national courts, in breach of its procedural obligations under Article 2 of the Convention.", "38. Having regard to the facts of the case, the submissions of the parties and its finding of a procedural violation of Article 2 (see paragraphs 34-37 above), the Court considers that it has examined the main legal questions raised in the present application. It concludes, therefore, that there is no need to examine whether there has also been a violation of Article 3 of the Convention (see, for example, Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007; and Gagiu, cited above, § 73).", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "39. The applicant also complained under Article 14 of the Convention of discrimination, comparing his case to that of other beneficiaries of the special laws, such as police officers, prosecutors, magistrates, State officials, and parliamentarians, whose rights were always respected since they were considered substantially more important than he was. Article 14 reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "40. The Court finds that the applicant has failed to substantiate his allegation that he was subjected to discriminatory treatment on the ground of his social status. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "41. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "42. In respect of pecuniary damage, the applicant claimed 52,832 Euros (EUR), representing the money he had already paid for procuring the necessary medication (roughly EUR 5,000) and the money he would have paid if he had obtained Avastin for twelve months at his own expense (EUR 48,000). The applicant further claimed EUR 850,000 in respect of non - pecuniary damage.", "43. The Government did not contest the amount claimed in respect of pecuniary damage, inasmuch as it was supported by documents and related to money already paid by the applicant for procuring the medicines from July to December 2005. As regards non-pecuniary damage, the Government considered that the amount claimed was unjustifiably high and asked for an assessment on an equitable basis in accordance with the case-law of the Court in the matter.", "44. The Court does not consider the alleged pecuniary damage to be fully substantiated, but it does not find it unreasonable to suppose that the applicant certainly incurred costs that were directly due to the violation found. It also takes the view that, as a result of the violation found, the applicant undoubtedly suffered non-pecuniary damage that cannot be repaired merely by the finding of a violation.", "Consequently, having regard to the circumstances of the present case seen as a whole, and deciding on an equitable basis, the Court awards the applicant EUR 20,000 in respect of the pecuniary and non-pecuniary damage sustained, plus any tax that may be chargeable.", "B. Costs and expenses", "45. The applicant did not claim the reimbursement of any costs and expenses.", "C. Default interest", "46. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Events leading to the death of the applicant's son", "5. The applicant was born in 1933 and lives in Balvi. He is the father of Mr Valdis Jasinskis (“the applicant's son”), a Latvian national who was born in 1962 and who died on 28 February 2005.", "6. On 26 February 2005 the applicant's son (who had been deaf and mute since birth ) and several of his friends were drinking beer in a bar in Balvi. Witness statements differ somewhat as to how much alcohol the applicant's son consumed that night. After the applicant's son's death, a forensic expert took into the account witness testimonies and used Widmark's equation to arrive at the estimate that, after finishing his last drink, the alcohol concentration in the applicant's son's blood would have been 4.52 ‰, which meant that all traces of alcohol would have left his body approximately thirty hours later. The expert, however, noted that this figure was approximate. The applicant disagreed with the estimate, noting that such a concentration of alcohol would be deadly.", "7. After leaving the bar, the applicant's son and his friends walked to a nearby school where a party was taking place. In front of the school entrance M.I. – a minor – pushed the applicant's son, who fell backwards down the stairs in front of the school, hit his head against the ground and lost consciousness for several minutes. The persons present then tried to attract the attention of the security guards, who were inside the school, by knocking on the locked doors. In the process a glass pane of the entrance doors was cracked. It appears from the subsequent investigation that the glass was broken by one of the students of the school.", "8. The security guards came outside and saw the applicant's son lying unconscious on the ground. They called an ambulance and the police. After the applicant's son had regained consciousness, the security guards sat him down on the stairs of the school.", "9. The police arrived on the scene at 1. 40 a.m. They later reported that the applicant's son had been unable to stand up on his own and had been flailing his arms. Upon their arrival the officers were informed that the applicant's son was deaf and mute and that he had fallen down the stairs. They were also told that he was probably responsible for breaking the glass of the entrance doors.", "10. The policemen decided not to wait for the ambulance that had been called and took the applicant's son to the Balvi District Police station in order to initiate administrative proceedings for petty hooliganism and public drunkenness. The policemen alleged that in the car on the way to the police station the applicant's son had behaved aggressively and had been flailing his arms and kicking.", "11. The record of the administrative detention of the applicant's son indicates that the reason for the detention was to “sober up” the detainee. The only injury that was noted was a graze on his face. The same record also notes that at 5. 50 p.m. on the following day the applicant's son was released from detention because he had “sobered up” (but see paragraph 16 below).", "12. The policemen alleged that on the premises of the police station the applicant's son had continued to behave aggressively by flailing his arms. The applicant submits that it is probable that his son was trying to communicate with the policemen by using gestures, because they had taken away the notebook he normally used to communicate with persons who did not understand sign language.", "13. Shortly afterwards the ambulance crew contacted the police station. The officer on duty informed them that no medical aid was necessary, since the applicant's son was merely intoxicated. He was then placed in the sobering-up room. For a while he kept knocking on the doors and walls but stopped doing so after a while and went to sleep.", "14. At 8. 40 a.m. in the morning the duty officers tried to wake the applicant's son but he only opened his eyes and, according to the conclusions of the internal investigation of the police, “ did not want to wake up”.", "15. Approximately fourteen hours after the applicant'son had been brought to the police station (at approximately 3. 30 p.m. ) one of the policemen considered that he had been “sleeping for too long” and called an ambulance. The doctors apparently refused to take Valdis Jasinskis to a hospital (during the internal investigation the officers reported that the ambulance crew had indicated that he was “faking” and was healthy). The Government dispute that fact, observing that it had not been mentioned in the report on the quality of medical care provided to the applicant's son (see below, paragraph 18). Nevertheless, the fact of the ambulance crew's initial refusal is confirmed by the statements of the police officers who were present at the police station at the time, which have been recounted in several documents, such as the conclusions of the internal inquiry of 4 April 2005 (see below, paragraph 19), the report of the additional internal inquiry of 5 August 2005 (see below, paragraph 22), the 2 November 2005 decision to terminate the criminal proceedings (see below, paragraph 23) and others.", "16. The applicant's son was taken to hospital only after repeated requests from his father, who had at that time been informed of his son's arrest and had arrived at the police station. From the reports of the internal investigation it appears that the transfer took place at 5. 30 p.m. on 27 February 2005. Upon arrival at the hospital it was noted that the applicant's son was conscious but “non- communicative ”. His condition was characterised as “serious” and he was diagnosed with severe intoxication with unknown alcohol surrogates. At 9. 10 p.m. the applicant's son lost consciousness and his condition was described as “very serious”. At 11. 30 p.m. the medical report was updated to note that the presence of an intracranial haematoma could not be excluded but that because of his condition the patient could not be transported for a CT scan (which was only available at a hospital in Rēzekne, some eighty kilometres from Balvi ). The applicant's son died at 2. 00 a.m. on 28 February 2005.", "17. A post-mortem examination of the applicant's son's body was carried out on 28 February 2005. It disclosed fractures of the frontal, parietal and occipital bones of the applicant's son's cranium, oedema in the brain as well as multiple other injuries to the head and brain. The expert concluded that those injuries had been the cause of death. It was further established that neither the blood nor the urine of the applicant's son contained any traces of alcohol.", "B. Investigation", "1. Concerning medical care", "18. On 9 May 2005 an expert of the Inspectorate of Quality Control for Medical Care and Working Capability (“MADEKKI”) issued a report on the quality of medical aid provided to the applicant's son before his death. The report noted several shortcomings in the treatment of the applicant's son at the police station. In particular, it was noted that no information was available concerning the health condition of the applicant's son during the time spent in the police station or when he was placed in the sobering -up room. It was further concluded that the ambulance had been called to the police station belatedly. The final conclusion of the report was that the death of the applicant's son was not attributable to any lack of professionalism on behalf of the doctor who had treated him in the hospital but rather to the severity of his injuries.", "2. Concerning criminal responsibility", "19. After the death of the applicant's son the Balvi District Police Department launched an internal inquiry. On 4 April 2005 the final report of the inquiry was approved by the head of that department. The report concluded that the policemen present at the police station during the night in question had acted in accordance with the internal guidelines and the legislation governing police work. The report further referred to an article in the local newspaper in which a surgeon had expressed the opinion that injuries such as the ones sustained by the applicant's son were difficult to detect, in particular if the injured person was intoxicated. The final conclusion was that the staff of the department had committed no infractions.", "20. On 26 May 2005 an investigator of the Balvi District Police Department adopted a decision to terminate the criminal proceedings against M.I., which had been initiated on 2 March 2005. In this decision several witness testimonies were recounted and some of them seemed to indicate that the security guards who had been on duty during the party at the school had hit the applicant's son in the head with a rubber truncheon. It was also found that upon the applicant's son's arrival at the police station the policemen had noted that he did not have any visible injuries and that he was heavily intoxicated. The decision further remarked that at 5. 30 p.m. at the police station a doctor had observed that the applicant's son was conscious and had no traces of having been hit on his body or head. There was some dried blood in one of his nostrils. However, considering that the applicant's son was deaf and mute and thus unable to communicate orally any complaints about his health, he had been diagnosed as being intoxicated with alcohol surrogates and taken to the Balvi hospital. It was further noted that the internal inquiry of the Balvi District Police Department had established that the policemen in charge had not committed any offence. Lastly it was established that M.I.'s actions did not constitute corpus delicti. Therefore, the criminal proceedings concerning the death of the applicant's son were terminated.", "21. On 17 June 2005 the Balvi District Public Prosecutor's Office decided to quash the decision of 26 May and remitted the case for additional investigation. Among other things, the public prosecutor indicated that it was necessary to determine whether it would have been possible to correctly diagnose the applicant's son's injuries had he been taken to hospital earlier than he was, whether the police had adequately taken into account the fact that he was deaf and mute, and whether there were any visible external signs of the injuries that eventually caused his death.", "22. On 5 August 2005 the head of the Balvi District Police Department approved a report drawn up in the context of an additional internal inquiry that had been prompted by the decision of 17 June. Once again no wrongdoings on the part of the police officers were established. In particular, it was noted that even though an internal police instruction concerning sobering -up rooms prohibited the placement therein of persons with visible physical injuries, the applicant's son did not fall within that category. The report confirmed that his injuries had not been obvious, in that regard referring to the visit of the ambulance crew to the police station at 3. 50 p.m. on 27 February 2005, during which no injuries had been noted.", "23. On 2 November 2005 the Balvi District Police Department terminated the criminal proceedings for the second time. The decision pointed out, inter alia, that even if the applicant's son had been taken to hospital sooner, it was not certain that he would have received the correct diagnosis due to the absence of a CT scanner and a specialist neurologist at Balvi hospital. It was also established that since the applicant's son's injuries were not visible, the police officers in question had not breached the law.", "24. On 8 November 2005 the Balvi District Public Prosecutor's Office decided to quash the decision of 2 November 2005 on the ground that the evidence had not been examined.", "25. On 10 November 2005 the Balvi District Police Department decided to terminate the criminal proceedings. The text of the decision was practically identical to that of 2 November 2005.", "26. As of 19 September 2006 the applicant was represented by a lawyer. Pursuant to a request by the applicant's representative, on 1 November 2006 a prosecutor of the Office of the Prosecutor General quashed the decision of 10 November 2005 and sent the case to the Bureau of Internal Security of the State Police ( Valsts policijas Iekšējās drošības birojs ) for continued investigation. The decision of 19 September focused, inter alia, on the actions of the policemen before and after the applicant's son's arrest as well as on the legality and permissibility of his detention as such. It was suggested that the question of the potential liability of the policemen of the Balvi District Police Department for criminal inaction (section 319(2) of the Criminal Law, see below, paragraph 34 ) needed to be resolved.", "27. On 18 January 2007 that Bureau decided to split the criminal proceedings into two parts, one regarding the actions of M.I. and the other concerning the inaction of the Balvi District policemen. The first part was transferred back to the Balvi District Police Department and the second remained with the Bureau of Internal Security.", "28. On 7 March 2007 the Balvi District Police Department decided to terminate the criminal proceedings against M.I. due to lack of corpus delicti. The applicant did not appeal against that decision.", "29. On 23 August 2007 the Bureau of Internal Security of the State Police decided to terminate the criminal proceedings against the officers of the Balvi District Police Department for want of corpus delicti. During the course of the investigation statements were taken from all five officers who had been present at the police station during the night of the applicant's son's arrest and the following day. The officers who had arrested the applicant's son confirmed that the security guards at the school had informed them that he had fallen backwards down the stairs but they had not waited for the ambulance that had been called because he had behaved in a way that was typical of an intoxicated person and had had no visible injuries. The officers who had been on duty on 27 February 2005 pointed out that they had tried to wake up the applicant's son on several occasions without success, but that after they had eventually succeeded, the applicant's son had gotten up without any help and walked to the reception area of the police station where he had been seen by a doctor who had arrived in an ambulance. The doctor had then allegedly proclaimed that the applicant's son was “faking” and was still drunk. He had only been taken to hospital after the applicant had persuaded the doctor to do so. The decision also pointed out that it was “obvious” that a mistake had been made by the doctors, who had failed to correctly diagnose the applicant's son's injuries before his death.", "30. On 26 September 2007 a public prosecutor of the Balvi District Public Prosecutor's Office dismissed the applicant's representative's appeal against the decision of 23 August 2007.", "31. On 24 October 2007 a senior prosecutor of the same office rejected the applicant's representative's appeal against the decision of 26 September 2007. In addition to upholding the conclusions of the decision of 23 August 2007, it was pointed out that no causal link existed between the decision of the officers present at the scene to transport the applicant's son to the police station without waiting for the ambulance and the applicant's son's death, since the death had occurred despite the fact that the applicant's son had eventually been placed under medical supervision.", "32. In a final decision of 31 January 2008 a senior prosecutor of the Public Prosecutor's Office attached to the Latgale Regional Court dismissed the applicant's complaint about the decision of 24 October 2007." ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW PROVISIONS", "33. The fifth paragraph of section 5 of the Law on Police provides one of the basic principles for organising the work of the police is safeguarding the health of persons in police custody, which includes carrying out emergency measures to provide medical assistance. The duty of police officers to provide medical and other assistance to injured persons is repeated in section 10(3) of the Law on Police. That section specifically provides for a duty to provide assistance to anyone, even persons who, because of their state of inebriation, have lost the ability to move or who pose a danger to themselves or others.", "34. Section 319 (2) of the Criminal Law provides that state officials'can be held criminally liable for intentional or negligent failure to perform acts which are compulsory by law or are part of the duties assigned to the official in question. In order to engage criminal responsibility such dereliction of duties has to have caused substantial harm to the state or to the rights and interests of individuals.", "35. On 1 February 2004 the Law of Administrative Procedure entered into force. That law, among many other things, provides for a mechanism for complaining about the legality of de facto actions of state institutions to administrative courts.", "36. The Law on Compensation for Damage Caused by State Institutions came into force on 1 July 2005. It provides for practical implementation of the rights guaranteed by the Constitution and the Law of Administrative Procedure to receive compensation for damage caused by unlawful administrative acts issued by state institutions or for unlawful de facto actions of those institutions. Pursuant to section 14(3) of that law, the maximum compensation for non-pecuniary damage that can be awarded is 20,000 Latvian lati (LVL ) approximately 28,200 euros (EUR ).", "37. As to the consequences of awarding compensation, section 32 of the Law on Compensation for Damage Caused by State Institutions provides as follows:", "“1) In order to establish the circumstances that have caused or fostered the infliction of the damage to be compensated, an authority hierarchically superior to the one which has caused the damage shall evaluate each individual case when damage has to be compensated pursuant to a decision of the authority or a court.", "2) After evaluating all the circumstances pertinent to the compensation for damage, a hierarchically superior authority shall adopt a decision concerning forwarding the materials in the case file to a competent authority, which shall decide whether the official responsible for causing the damage ought to be held disciplinarily, administratively or criminally responsible. ”", "38. Section 22 of the Law of Criminal Procedure contains a general principle according to which that Law provides for procedural opportunities for persons who have suffered harm as a result of criminal acts to request compensation for pecuniary and non-pecuniary damage. The specifics of the implementation of that principle are contained in various sections throughout the Law.", "39. The general standards contained in the Second General Report [CPT/Inf (92) 3] by the Council of Europe's Committee for the Prevention of Torture (CPT) provide that persons detained by the police should have the right of access to a doctor, including the right to be examined, if the person detained so wishes, by a doctor of his own choice (in addition to any medical examination carried out by a doctor called by the police authorities) (§ 36). Persons taken into police custody should be expressly informed without delay of the above rights (§ 37). The results of the medical examination and relevant statements by the detainee and the doctor's conclusions should be formally recorded by the doctor and made available to the detainee and his lawyer (§ 38).", "40. Article 14(2) of the United Nations Convention on the Rights of Persons with Disabilities ( “ the CRPD”), which entered into force on 3 May 2008, was signed by Latvia on 18 July 2008 and ratified on 1 March 2010, provides as follows:", "“States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation. ”", "41. The Interim Report of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment, submitted on 28 July 2008 by the Office of the United Nations High Commissioner for Human Rights to the 63 rd session of the General Assembly of the UN (A/63/175) in its paragraphs 50 and 54 provides as follows:", "“Persons with disabilities often find themselves in ... situations [of powerlessness], for instance when they are deprived of their liberty in prisons or other places ... In a given context, the particular disability of an individual may render him or her more likely to be in a dependant situation and make him or her an easier target of abuse ... ”", "and", "“The Special Rapporteur notes that under article 14, paragraph 2, of the [Convention on the Rights of Persons with Disabilities], States have the obligation to ensure that persons deprived of their liberty are entitled to'provision of reasonable accommodation'. This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others, when such adjustments do not impose disproportionate or undue burden. The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill-treatment and torture. ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "42. The applicant complained that his son's death and the subsequent failure to conduct an effective investigation in that regard were in violation of the guarantees of Article 2 § 1 of the Convention, which reads as follows:", "“Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law ... ”", "43. The Government contested that argument.", "A. Admissibility", "1. The Government", "44. The Government argued that the applicant could have challenged the actions and omissions of the officials of the Balvi District Police Department in conformity with the procedure prescribed in the Law of Administrative Procedure and subsequently requested compensation in conformity with the Law on Compensation for Damage Caused by State Institutions (see above, paragraphs 35 and 36 ). More specifically the Government suggested that what should have been subjected to administrative review were the de facto actions of the applicant's son's arrest and his placement in administrative detention. According to the Government, such a procedure was effective, accessible and offered reasonable prospects of successfully obtaining redress for the applicant's complaints about his son's death and the alleged defects of the subsequent investigation.", "45. The Government referred to the Court's decision in Caraher v. the United Kingdom ((dec.), no. 24520/94, ECHR 2000 ‑ I) and the judgment Branko Tomašić and Others v. Croatia ( no. 46598/06, § 38, ECHR 2009 ‑ ... (extracts)) in support of their argument that in cases of use of lethal force by a State agent, as well as with regard to complaints about the failure of the State to take adequate positive measures to protect a person's life, the possibility of obtaining compensation was to be considered an adequate and sufficient remedy in respect of a substantive complaint under Article 2.", "46. As for the applicant's complaint under the procedural aspect of Article 2, the Government submitted that while in principle a mechanism had to be available to the victim or the victim's family for establishing the liability of State officials or bodies for acts or omissions involving a breach of Convention rights (a reference was made to E. and Others v. the United Kingdom, no. 33218/96, § 110, 26 November 2002 ), cases of a non-intentional infringement of the right to life did not necessarily require the provision of a criminal-law remedy in every case ( Branko Tomašić and Others, cited above, § 64 ). More specifically, the Government pointed out that in the sphere of negligence a civil or disciplinary remedy may suffice (referring in this regard to Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002 ‑ VIII ), especially considering that the Convention does not grant to an individual a right to request conviction of third persons. The Government further alleged that pursuant to section 32(2) of the Law on Compensation for Damage Caused by State Institutions a court judgment awarding compensation for damage “trigger[ed] an obligation for a [hierarchically] superior institution to re-examine the case at hand”. Taking those considerations into account, the Government submitted that the remedies provided by the Law of Administrative Procedure and the Law on Compensation for Damage Caused by State Institutions satisfied the criteria for an effective domestic remedy within the meaning of Article 35 § 1 of the Convention in that they were capable of providing redress in respect of the applicant's complaints.", "47. The Government further submitted that the proposed remedy was available in theory as well as in practice. With regard to the practical availability the Government referred to a decision of the Administrative Chamber of the Senate of the Supreme Court in case SKA-259/2008. That case concerned a person who was arrested and transported to a hospital for a narcotic intoxication test without adequate documentation. The administrative courts then proceeded ex officio to question the police officers involved in the incident and, upon finding that a procedural violation had been committed, ordered the police to issue a written apology. The Government considered that the approach adopted by the administrative courts attested to their capacity to conduct an independent and impartial ex officio investigation into the wrongdoings of police officers, which in turn attested to the fact that administrative courts were to be considered an effective and available remedy which offered reasonable prospects of success in cases where it was not compulsory to provide a criminal-law remedy.", "48. Lastly, the Government submitted that the only purpose of the criminal inquiry into the fact of the applicant's son's death had been “to examine and investigate the circumstances of the death” and “under no circumstances” was the purpose of the investigation “to compensate for the losses incurred”, since even if an individual responsibility on the part of the state officials had been established, the applicant would have had to initiate a claim for compensation and to substantiate his claim.", "2. The applicant", "49. The applicant pointed out that the Latvian law at the relevant time provided for two separate review procedures concerning complaints such as his, namely, criminal proceedings or an administrative procedure. Both of those procedures provided the possibility to find that actions of State agents had been unlawful and to request compensation in that regard. As to which of the procedures should have been used, the applicant referred to the Court's earlier finding that “it is for the individual to select which legal remedy to pursue” ( Airey v. Ireland, 9 October 1979, § 23, Series A no. 32 ) and accordingly argued that he did not have an obligation to exhaust all available avenues of domestic remedies. In any event, according to the applicant, he had never been informed, either by the Prosecutor's Office or by the Ombudsman's Office, of the availability of administrative proceedings in his case. The applicant further focused on the requirement arising from the Court's case-law that in cases concerning a death in circumstances that might give rise to the State's responsibility the authorities must act of their own motion once the matter has come to their attention and that the next-of-kin could not be obliged to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures ( Branko Tomašić and Others, cited above, § 43 ). Lastly, the applicant argued that the administrative courts lacked the competence to evaluate the effectiveness of the investigation into the applicant's son's death, since that investigation fell within the realm of criminal law.", "3. The Court's assessment", "50. The Court notes that it is common ground that the applicant made full use of the remedy provided by the criminal - law procedures. The Court reiterates that, in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999; Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004-V; and Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, 15 November 2005). Accordingly, the Court has to determine only whether the Government have submitted any arguments that would indicate that the remedy provided for in the Law of Administrative Procedure and the criminal-law remedy do not have “essentially the same objective”, that is to say, whether the administrative-law remedy would add any essential elements that were unavailable through the use of the criminal-law remedy.", "51. The Court observes that, for a domestic remedy to be considered an effective one in cases where a violation of Article 2 or 3 of the Convention has been alleged, it would have to provide for a legal mechanism of investigating the complaint. That conclusion is mandated by the procedural aspect of Articles 2 and 3 (see, mutatis mutandis, Oğur v. Turkey [GC], no. 21594/93, § 66, ECHR 1999 ‑ III ). A remedy whose only consequence is a possibility to obtain compensation for the alleged violation would not suffice (ibid., see also Şenses v. Turkey (dec.), no. 24991/94, 14 November 2000; Baysayeva v. Russia, no. 74237/01, §§ 108 and 109, 5 April 2007; and Dzieciak v. Poland, no. 77766/01, § 80, 9 December 2008 ). The Government have submitted that administrative courts possess the power to conduct an ex officio investigation and have submitted an example of one domestic case where such an investigation had apparently been carried out. In the context of the present case the Court has no reason to doubt that administrative courts are capable of carrying out an investigation either of their own volition or pursuant to a request by the parties. Nevertheless, the Government have failed to explain, and the example of the domestic case submitted does not clarify how an investigation carried out by administrative courts would be more pertinent than the one carried out by police and prosecutorial authorities within the context of criminal law procedures, which provide for all the legal and practical means necessary for that purpose.", "52. It appears to be common ground that both avenues – the criminal-law one and the administrative-law one – could in principle, if pursued successfully, lead to an award of monetary compensation for the alleged violation. It has furthermore not been disputed that an adequately carried out criminal investigation could lead to a decision determining the individual responsibility of any State officials who might be held accountable for the applicant's son's death. None of the arguments advanced by the Government suggest that the administrative-law procedures would add anything to the possibilities offered by the criminal law. Even if the possibility of re-examination of the case is triggered by a an administrative act or a judgment awarding damages for a wrongdoing committed by a State institution, any individual responsibility of State officials could only be established following such re-examination, which can require additional investigation by several levels of domestic authorities. Accordingly, recourse to administrative-law procedures would not necessarily result in a more effective examination of the case.", "53. Taking the above into account, the Court considers that the Government have failed to demonstrate that the remedy offered by the Law of Administrative Procedure and the Law on Compensation for Damage Caused by State Institutions would pursue objectives that are any different from the ones pursued by the criminal-law remedy.", "54. The Court therefore considers that in the light of the facts pertinent to the present case there was no reason for the applicant to pursue the administrative-law remedy in addition to the criminal-law remedy, the effectiveness of which has not been disputed by the parties.", "55. Accordingly the applicant has exhausted the domestic remedies. Furthermore, the complaint under Article 2 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "Merits", "1. Substantive aspect", "56. The applicant argued that the police officers of the Balvi District Police Department had been negligent and ignorant in the performance of their duties. In this regard he emphasised that before his son was transported from the school to the police station the officers had been alerted to the fact that he had fallen down the stairs, hit his head and had been unconscious for some time. Nevertheless, the police had chosen not to wait for the ambulance which had been on its way. According to the applicant, by making that decision the police had taken full responsibility for its consequences. Accordingly, it had been the lack of due diligence on the part of the police officers that had led to the death of the applicant's son.", "57. The Government did not submit any comments on the merits of the applicant's complaints.", "58. The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, § 147, Series A no. 324), enjoins the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36 Reports of Judgments and Decisions 1998-III).", "59. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Where the authorities decide to place and maintain in detention a person with disabilities, they should demonstrate special care in guaranteeing such conditions as correspond to his special needs resulting from his disability (see Price v. the United Kingdom, no. 33394/96, § 30, ECHR 2001-VII, Farbtuhs v. Latvia, no. 4672/02, § 56, 2 December 2004, and international law sources mentioned in paragraphs 39 to 41 above ). More broadly, the Court has held that States have an obligation to take particular measures to provide effective protection of vulnerable persons from ill-treatment of which the authorities had or ought to have had knowledge ( Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001 ‑ V ).", "60. The obligation on the authorities to account for the treatment of an individual in custody is particularly stringent where that individual dies ( Salman v. Turkey [GC], no. 21986/93, § 99, ECHR 2000 VII). Furthermore, the national authorities have an obligation to protect the health of persons who have been deprived of their liberty (see, inter alia, Naumenko v. Ukraine, no. 42023/98, § 112, 10 February 2004, and Dzieciak v. Poland, no. 77766/01, § 91, 9 December 2008 ). In the context of Article 2, the obligation to protect the life of individuals in custody also implies an obligation for the authorities to provide them with the medical care necessary to safeguard their life (see Taïs v. France, no. 39922/03, § 98, 1 June 2006, and Huylu v. Turkey, no. 52955/99, § 58, 16 November 2006 ). A failure to provide adequate medical care may constitute treatment in breach of the Convention ( Huylu, cited above, § 58 ).", "61. The Court considers that the question to be resolved first is whether the officers of the Balvi District Police Department knew or ought to have known about the danger to the applicant's son's health (see, mutatis mutandis, Keenan v. the United Kingdom, no. 27229/95, § 93, ECHR 2001 ‑ III ). Subsequently the Court has to evaluate whether the officers in question displayed adequate diligence in light of the medical condition of the applicant's son and his disability in so far as they knew or ought to have known about them.", "62. Turning its attention first to the moment of the applicant's son's first encounter with the police, the Court observes that it is common ground that upon their arrival at the scene the officers were informed about the applicant's son's fall from the stairs and of his losing consciousness after hitting his head against the ground. The policemen were also told about the sensory disability of the applicant's son (see above, paragraph 9). They were further informed that an ambulance had been called and was on its way. Nevertheless, the policemen chose not to wait for the ambulance and to take the applicant's son to the police station, believing him to be merely intoxicated.", "63. When the applicant's son was brought to the police station, he was observed by the officer on duty, who noted that there was a graze on his face (see above, paragraph 11). It appears that no medical examination took place. On the contrary, the police officers informed the ambulance crew that no medical assistance was necessary (see above, paragraph 13). It appears that the officers arrived at that decision without consulting the applicant, since it seems that none of the officers understood sign language and since the notepad that the applicant's son used for communication had been taken away from him.", "64. From the information and the documents submitted by the parties it is not possible to establish with any certainty how many times and with what frequency the officers present at the station checked on the applicant's son's condition. What does not seem to be disputed is that for some time after being placed in the sobering-up room the applicant's son continued to knock on the doors and the walls of the cell, which did not prompt any reaction from officers present at the station.", "65. The first time the police officers tried to wake up the applicant's son was some seven hours after taking him into custody (see above, paragraph 14). Almost another seven hours passed before an ambulance was called to the police station (paragraph 15).", "66. The Court considers that the Government have failed to explain why the police, knowing about the applicant's son fall and having been informed about his disability, did not consider it necessary to wait for the ambulance or to have medical professionals examine the applicant's son after he was brought to the police station as specifically required by the applicable standards of the Committee for Prevention of Torture (see above, paragraph 39). What is more, it appears that the police never gave the applicant's son any opportunity to provide information about his state of health, even after he kept knocking on the doors and the walls of the sobering-up cell. Taking into account that the applicant's son was deaf and mute, the police had a clear obligation (arising at the least from sections 5 and 10(3) of the Law on Police and the above-mentioned international standards cited in paragraphs 39-41 above ) to at least provide him with a pen and a piece of paper to enable him to communicate his concerns. The Court is even more concerned by the almost seven hours that passed between the time when the applicant's son “refused to wake up” in the morning and the time when an ambulance was called. Not getting up for some fourteen hours can hardly be explained by simple drunkenness (compare with Taïs, cited above, § 101 ).", "67. The foregoing considerations enable the Court to conclude that, taking into account the police's knowledge about the applicant's son's fall and his sensory disability, their failure to seek a medical opinion about his state of health coupled with their failure to react to his knocking on the doors and walls of the sobering-up cell and to call an ambulance for almost seven hours after he could not be woken up in the morning, the police failed to fulfil their duty to safeguard the life of the applicant's son by providing him with adequate medical treatment.", "68. There has accordingly been a violation of the substantive aspect of Article 2 § 1 of the Convention.", "2. Procedural aspect", "69. The applicant pointed out that the initial investigation into the circumstances of his son's death was conducted by the Balvi District Police Department – the same institution which, in his submission, was responsible for the death. Accordingly the investigators had lacked the necessary independence. Furthermore the investigation had failed to establish whether the police officers in question had had a duty to wait for the ambulance that could have offered medical assistance to the applicant's son and whether it had been lawful to detain the applicant's son without first obtaining a medical opinion as to his state of health.", "70. The Government did not submit any comments on the merits of the applicant's complaints.", "71. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324, and Kaya v. Turkey, judgment of 19 February 1998, § 105, Reports 1998-I ).", "72. The Court has recently found that the obligation under Article 2 to carry out an effective investigation has evolved into a “separate and autonomous duty” (see Šilih v. Slovenia [GC], no. 71463/01, § 159, 9 April 2009). However, it would emphasise that this obligation may differ, both in content and in terms of its underlying rationale, depending on the particular situation that has triggered it (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 ‑ I, and Banks and Others v. the United Kingdom (dec.), no. 21387/05, 6 February 2007). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility ( Anguelova v. Bulgaria, no. 38361/97, § 137, ECHR 2002 ‑ IV ).", "73. In as much as different considerations apply in cases such as the present one in which the death has not been caused by use of force or similar direct official action, the standard against which the investigation's effectiveness is to be assessed may be less exacting. However, even in such situations those concerned are entitled to an independent and impartial official investigation procedure that satisfies certain minimum standards as to its effectiveness (see Mikayil Mammadov v. Azerbaijan, no. 4762/05, § 102, 17 December 2009, and the jurisprudence cited there ). In this regard the Court would point out that this is not an obligation of result, but of means (see, among other authorities, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002 ‑ II ) and that Article 2 does not entail the right to have others prosecuted or sentenced for an offence, or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence (see Öneryıldız v. Turkey [GC], no. 48939/99, §§ 94 and 96, ECHR 2004 ‑ XII ). Nevertheless, the Court has also held that if the negligence attributable to State officials or bodies goes beyond an error of judgment or carelessness, in that the authorities in question, fully realising the likely consequences and disregarding the powers vested in them, have failed to take measures that have been necessary and sufficient to avert the risks to the victim's life, the fact that those responsible for endangering life have not been charged with a criminal offence or prosecuted may amount to a violation of Article 2 of the Convention ( Öneryıldız, § 93 ).", "74. One of the minimum standards of effective investigation is a hierarchical, institutional and practical independence of persons carrying out the investigation from the persons implicated in the events under investigation (see Paul and Audrey Edwards, cited above, § 70; Mastromatteo v. Italy [GC], no. 37703/97, § 91, ECHR 2002 ‑ VIII; and Mikayil Mammadov, cited above, § 101 ).", "75. With regard to the independence of the investigative authorities in the present case the Court notes that the applicant is correct in pointing out that the initial as well as additional inquiry was carried out by the Balvi District Police Department, that is, the same authority that was implicated in the death of his son (see above, paragraphs 19 and 20). In this respect the Court has previously held that an internal inquiry cannot be regarded as adequate in cases concerning allegations of ill-treatment in contravention of Article 3 of the Convention (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § § 333-341, ECHR 2007 ‑ ... with further references, Jašar v. “the former Yugoslav Republic of Macedonia ” (dec.), no. 69908/01, 11 April 2006, and Kopylov v. Russia, no. 3933/04, § 138, 29 July 2010 ). The Court considers that the same conclusion is applicable to complaints under Article 2 of the Convention. Furthermore, the Balvi District Police Department was the same institution which on four occasions decided to terminate the criminal proceedings regarding the events surrounding the death of Valdis Jasinskis (see above, paragraphs 20, 23, 25 and 28). The first time the investigation went outside the recursive route between the Balvi District Police Department and the Balvi District Public Prosecutor's Office was after the applicant's representative sought help from the Office of the Prosecutor General. As a result, the first time anyone outside the Balvi District had access to the case file was more than a year and a half after the applicant's son's death.", "76. The Court therefore considers that the investigation that was carried out by the Balvi District Police Department cannot be said to have been effective since it did not comply with the minimum standard of independence of the investigators. What remains to be seen then is whether that defect was cured when the investigative role was later taken over by the Bureau of Internal Security of the State Police, whose findings were then confirmed on three occasions by public prosecutors'offices.", "77. In this regard the Court notes that the investigation conducted by the Bureau of Internal Investigation was not limited to merely reviewing the documentary evidence accumulated in the course of prior investigation. Instead, the investigators questioned the five police officers who had been present at the police station during the days prior to the death of the applicant's son and drew their own conclusions which coincided with the ones reached by the Balvi District Police Department's internal inquiry.", "78. The Court does not find it necessary in the particular context of the present case to draw general conclusions about the independence or lack thereof of the Bureau of Internal Investigation, since it considers that the investigation carried out by that Bureau was defective for several reasons. At the outset the Court reiterates that a prompt response by the authorities in investigating suspicious deaths may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, for example, Mikayil Mammadov, cited above, § 105 ). In the present case the investigation left the confines of the institution implicated in the events under investigation only more than eighteen months after the events. The Bureau of Internal Investigation adopted its decision almost one more year later.", "79. The requirement of promptness of investigation, apart from the considerations mentioned previously, also follows from the necessity to promptly gather evidence and perform other investigative actions which could become impossible or excessively burdensome with the passage of time. For instance, in the present case it would have been opportune to question the witnesses of the circumstances the applicant's son's death soon after the respective events, while their memories were still fresh. In addition, a prompt investigation would have given the investigator an opportunity to ask supplementary questions to the expert who performed the autopsy and to observe the scene of the applicant's fall as well as the sobering-up cell where he had been detained.", "80. The Court furthermore observes that the investigation that was carried out by the Bureau of Internal Investigation failed to provide answers to several questions that would have been crucial in determining the individual responsibility of the police officers of the Balvi District Police Department. For example, the fact that MADEKKI had identified several significant shortcomings with regard to the treatment of the applicant's son that may have contributed to his demise (see above, paragraph 18) was left without any assessment. What is more, it does not appear that any effort was made to evaluate whether the police officers'actions when not waiting for the ambulance, when informing the ambulance crew that the applicant did not need any medical assistance and when delaying seeking medical help for some fourteen hours had been compatible with their duties, which derive from sections 5 and 10 of the Law on Police (see above, paragraph 33), and the special needs of persons with disabilities like the applicant's son. Since no such assessment was made, the Bureau reached the conclusion that no crime had been committed and the police officers'responsibility was never weighed by a court (see, by contrast, Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002).", "81. Lastly, the Court cannot but decry the lack of effectiveness and expediency of the investigation, epitomised by the fact that responsibility for the investigation was passed back and forth between the police and various prosecutors'offices three times (see, mutatis mutandis, Denis Vasilyev v. Russia, no. 32704/04, § 103, 17 December 2009, and Mikheyev v. Russia, no. 77617/01, § 120, 26 January 2006 ). The blame for this defect is to be shared by the police, whose investigation was consistently inadequate, and the prosecutors'offices, who failed to provide adequate instructions to the police with a view to remedying the defects identified in the investigation.", "82. The foregoing considerations are sufficient to enable the Court to conclude that the investigation into the circumstances of the applicant's son's death was not effective.", "83. There has accordingly been a violation of the procedural aspect of Article 2 § 1 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "84. Lastly, the applicant also complained that there was no effective investigation, referring to the procedural aspect of Article 3. Taking into account the conclusions reached above with regard to the applicant's complaints under Article 2 § 1, the Court finds that there is no need to examine the same complaints under Article 3 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "85. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "86. The applicant claimed EUR 50,000 in respect of non-pecuniary damage.", "87. The Government considered that the amount requested was unjustified, excessive and exorbitant. They submitted that the award, if such were to be made, ought to be commensurate to compensation awarded in comparable recent cases (the Government mentioned Juozaitienė and Bikulčius v. Lithuania, nos. 70659/01 and 74371/01, 24 April 2008, Nikolova and Velichkova v. Bulgaria, no. 7888/03, 20 December 2007 and other judgments ).", "88. Taking into account the seriousness of the violations it has found in this case, the Court awards the applicant EUR 50,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "89. The applicant did not formulate a claim in respect of costs.", "C. Default interest", "90. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1957 and lives in Jelgava.", "6. It appears that in an unrelated incident on 23 June 2000 the applicant broke his spine. He underwent surgery to have a metal implant inserted into his back for support. It appears that following the operation he could move unaided. He was certified as being Category 2 disabled.", "7. On 17 December 2002 a note was made for the first time in the applicant’s medical records that he could not move without a wheelchair.", "8. On 23 January 2003 the applicant was certified as being Category 1 disabled (the most severe level of disability). His disability was reassessed on two further occasions, 13 February 2004 and 22 February 2006.", "A. The applicant’s arrest", "9. On 10 September 2001 at approximately 3 p.m., two traffic police officers, E.Š. and O.Ž., attempted to stop the applicant, who had exceeded the speed limit in Rīga and appeared to be driving under the influence of alcohol. He failed to stop on their instructions and continued driving. The police officers set out to follow him out of the city onto the Rīga-Jelgava motorway. They eventually overtook the applicant’s car and pulled it over to the side of the road until it came to a halt. Both vehicles were by then next to an apartment building on a residential street in Jaunolaine.", "10. According to the Government, both police officers then saw a firearm in the applicant’s inner left jacket pocket, and proceeded to push him to the ground using unspecified restraint techniques ( speciālie cīņas paņēmieni ) and handcuffed him. They then called the local police to the scene to collect evidence. The applicant was breathalysed on the spot and then taken to a police station in Olaine.", "11. The applicant did not agree with the Government’s version of events concerning his possession of a firearm. He submitted that the police officers had kicked him in the back several times, hurting him badly, before finding out that he was disabled. He alleged that when he had invited them to verify his documents, which were in his wallet in his car, the officers had planted a firearm on him in an attempt to evade criminal liability for having assaulted a disabled person. The applicant denied having had the firearm. He maintained that if he had been keeping a firearm, he would have disposed of it during the car chase.", "B. The applicant’s state of health", "1. Public hospital", "12. On 11 September 2001 the applicant was taken to a public hospital in Rīga ( Rīgas 1. slimnīca ), where an X-ray of his spine was carried out. His state of health was described as being “post-spinal fixation”. The fixing screws that held the metal implant supporting his spine in place had been broken. He also suffered from a spinal contusion and lower back pain. Lastly, it was noted that a consultation with a specialist was necessary.", "2. Specialist hospital", "13. On 11 September 2001 at 5.40 p.m., the applicant was transferred to a specialist traumatology and orthopaedics hospital in Rīga ( Traumatoloğijas un ortopēdijas slimnīca ). He told a specialist that the day before he had been fleeing from the police. Some officers had stopped him, had pulled him out of the car and had pushed him to the ground, which had led to his back making a hyperextensive movement, in other words, it had bent too far backwards. The applicant complained of lower back pain on his right side and said that he was unable to move his right leg because of the pain. Following an examination by a specialist, the applicant was diagnosed with the following: i) a hyperextension injury and contusion to the lower back; ii) a transverse process fracture (resulting from rotation or extreme lateral bending) to the L3 vertebra, iii) a compression fracture (flexion fracture pattern) to the L1 vertebra, previously fused by transperpendicular fixation surgery, the metal implant having become dislodged and screws in the Th12 and L3 vertebrae having been broken, and iv) intoxication. An X ‑ ray revealed that the fracture to the applicant’s L1 vertebra had been fused and fixated with rods and eight screws. Four screws in the applicant’s Th12 and L3 vertebrae had been broken. The metal implant had become dislodged. While at the hospital, the applicant received various types of medication.", "14. On 12 September 2001 the applicant was discharged from the hospital for outpatient treatment with recommendations to continue taking medication and to wear a fixating belt.", "3. Prison Hospital", "15. On 12 September 2001 at 7.15 p.m., the applicant was transferred to Rīga Central Prison. Upon admission, he was examined by a doctor, who noted the diagnosis of the specialist hospital and placed the applicant in the surgical ward of the Prison Hospital located within the grounds of the prison. The applicant’s overall state of heath was described as satisfactory.", "16. On 14 September 2001 the applicant complained of severe lower back pain and said that he could not lift his right leg or walk. His state of health was described as moderately severe. A procaine blockade (an anaesthetic which affects the peripheral nervous system) was administered to him.", "17. On 19 September 2001 a further procaine blockade was administered to the applicant.", "18. On 21 September 2001 his pain lessened and he could stand up and walk. On the same day an X-ray was carried out and no injuries other than those noted by the specialist hospital (see paragraph 13 above) were found. An X-ray of his lungs was also carried out, the results of which were clear.", "19. On 25 September 2001 the applicant had cold-like symptoms and complained of lower back pain. He also said that he could not feel his right thigh. Treatment was prescribed to him for an acute respiratory illness.", "20. On 26 September 2001 an infiltration in the applicant’s right hip was detected. His fever had been caused by the post-injection infiltration. Over the following two days, the applicant was consulted by a neurologist and a psychiatrist.", "21. On 28 September 2001 a surgical procedure was carried out to relieve the applicant’s pain, which continued to persist after that date and until 9 October 2001. On the latter date the applicant’s overall state of health was described as satisfactory and he could walk again.", "22. On 10 October 2001 the applicant was discharged from the Prison Hospital, but remained in custody.", "C. Investigation into the events of 10 September 2001", "23. On 10 September 2001, after the applicant was taken to the police station in Olaine, both traffic officers were questioned by an inspector of the Olaine police within the criminal proceedings concerning the firearm charge (see paragraph 33 below).", "24. E.Š. was the first to make a statement, on 10 September 2001 between 10 and 10.30 p.m. His version of events was as follows. In a residential area in Jaunolaine, he had taken the applicant by the hand and had made him step out of the car. Both he and his colleague had seen a firearm in the applicant’s inner left jacket pocket. They had both proceeded to push him to the ground and to handcuff him. His colleague, O.Ž., had taken the firearm out of the jacket pocket. They had then called the local Olaine police, who had arrived and had confiscated the firearm. The local police had also found a bullet in the car the applicant had been driving. Lastly, the police officers breathalysed the applicant and found that he had been under the influence of alcohol.", "25. In addition, in a report to his superior, which was drafted on the same day, E.Š. noted that restraint techniques had been used on the applicant because a firearm and bullets had been found in his inner left jacket pocket.", "26. O.Ž. made his statement on 10 September 2001, between 10.40 and 11.15 p.m. His evidence was very similar to that of his colleague. He also stated that they had both seen the firearm in the applicant’s jacket and had pushed the applicant to the ground and had handcuffed him. O.Ž. had then taken the firearm and the local police had confiscated it. He also noted that the applicant had been under the influence of alcohol. He had found out later that the local police had also found a bullet in the car.", "27. In addition, in a report to his superior, which was drafted on the same day, O.Ž. noted that when he had seen the firearm, he had taken it out of the applicant’s jacket. He added that the applicant had been handcuffed for around forty minutes as he had been behaving aggressively. Lastly, he mentioned that the applicant had agreed to be breathalysed on the spot.", "28. The applicant was first questioned by the inspector of the Olaine police on 11 September 2001 at 9.50 a.m. He submitted that he had been ill ‑ treated upon his arrest and said that he was not in a position to make a statement because he felt severe back pain. He mentioned the fact that he had previously undergone spinal surgery. At 10.15 a.m. the interview was terminated and the applicant was then taken to hospital (see paragraphs 12 et seq.).", "29. During his subsequent questioning by prosecutor J.D., on 21 September 2001 (see paragraph 37 below), the applicant maintained his allegation that he had been ill-treated upon arrest.", "30. On 9 November 2001 an expert commenced the forensic medical examination, which had been ordered on 10 October 2001 by prosecutor J.D. It appears that it was completed on 15 November 2001, when report no. 46-4528 was issued. The examination was based on the applicant’s medical records from the public and specialist hospitals, as well as his records from the Prison Hospital (see paragraphs 12 to 22 above). It appears that the applicant was not examined in person. The expert concluded that the applicant had not sustained any injuries. In reaching that conclusion, the expert noted that she had not taken into account the first diagnosis made by the specialist hospital that the applicant had “a hyperextension injury and contusion to the lower back” (see paragraph 13 above) because:", "“[I]t [was] not confirmed by objective clinical symptoms or by visible bodily injuries, but rather was based on the applicant’s complaints relating to the dislodging of the metal implant following osteosynthesis surgery and [the dislodging] cannot be regarded as bodily injuries on the grounds of instructions concerning the forensic medical examination.”", "31. She had also not taken into account the second diagnosis made by the specialist hospital that the applicant had “a fracture to the L3 vertebra” (see paragraph 13 above) as it had been an old fracture and had not been connected to the events of 10 September 2001, a fact confirmed by a specialist’s opinion of 15 November 2001. It appears that the results of the opinion were not made available to the applicant.", "32. On 27 November 2001 prosecutor J.D. decided to refuse the institution of criminal proceedings. Her decision was worded as follows:", "“The materials regarding [the applicant’s] complaint that officers O.Ž. and E.Š. had assaulted him during his arrest on 10 September 2001 have been separated from the criminal case file.", "In their witness statements, O.Ž. and E.Š. categorically denied that they had assaulted the applicant. None of the officers had assaulted him.", "Furthermore, according to forensic report no. 4528, dated 9 November 2001, no injuries were found on the applicant’s body. The fracture to the applicant’s L3 vertebra was not taken into account for the purposes of the forensic report, because it was old and was not connected to the injuries of 10 September 2001.", "In the circumstances, the actions of E.Š. and O.Ž. do not contain the elements of a criminal offence and there is no basis on which to institute criminal proceedings.", "Considering the above, and in accordance with section 5 and section 212 of the Code of Criminal Procedure, it is decided:", "1. to refuse to institute criminal proceedings into the applicant’s allegations of assault on 10 September 2001;", "2. to notify the applicant of this decision.”", "D. The criminal proceedings against the applicant", "1. Firearm charge", "33. On 10 September 2001 the Olaine police instituted criminal proceedings against the applicant in connection with the illegal acquisition and storage of a firearm. It appears that while at the police station, the applicant was breathalysed for a second time.", "34. On the same date an initial forensic examination of the firearm took place, which had been ordered by the Olaine police. Three further forensic examinations followed in the same month. The examination reports included a note stating that the firearm and a bullet had been confiscated from the car the applicant had been driving. The examinations revealed that there had been no fingerprints on the firearm and that the applicant’s jacket had not contained any traces of firearm oil, which had been found on the firearm.", "35. On 12 September 2001 the Rīga Regional Court ( Rīgas apgabaltiesa ) remanded the applicant in custody. He appealed against the order to no avail.", "36. On 18 September 2001 the case file was sent to the relevant prosecutor’s office in Rīga ( Rīgas rajona prokuratūra ).", "37. On 21 September 2001 prosecutor J.D. charged the applicant with the illegal acquisition and storage of a firearm. He denied the charge, saying that the police officers had ill-treated him and had then planted the firearm on him.", "38. On 8 October 2001 a confrontation took place in which prosecutor J.D. cross-examined the applicant and both traffic police officers; the applicant’s counsel was present. O.Ž maintained statements he had previously made on 10 September 2001 (see paragraph 26 above). The applicant submitted that during his arrest, O.Ž. had pulled him out of the car by his hand, had pulled his hands behind his back and had pushed him to the ground. When he had tried to turn around, an officer had started kicking him in his shoulders and arms. One of the officers had put his feet on his back. He alleged that he had been kicked some five or six times. He had told the officers about his disability and had invited them to verify his documents, which had been in his car. One of the officers had gone to his car and had found his disability certificate. The other officer, who had remained with his feet on his back, had then kicked him again. Afterwards, he had been ordered to stand up and put on his jacket, which had prior to that been in his car. He had been ordered to empty his pockets and had then felt an object similar to a firearm in his inner left pocket, which he had taken out and immediately dropped on the ground. The officers had then asked him if he had found everything, and he had noticed another object of a rectangular shape in the same pocket, which he had also dropped on the ground, which had turned out to be an ammunition clip ( aptvere ). He had then been handcuffed, breathalysed and handed over to the Olaine police.", "39. On 8 October 2001 prosecutor J.D. cross-examined the applicant and E.Š, who maintained statements he had made on 10 September 2001 (see paragraph 24 above); the applicant’s counsel was present. The applicant submitted that during his arrest, he had been kicked some five or six times in his back and arms, and that one of the officers had been standing or kneeling on his back while the other officer had handcuffed him. While in this position, he had made them aware of his disability and one of the officers had proceeded to verify his documents. After some time, they had made him stand up and put on his jacket, which had prior to that been in his car. The officers had searched him and he had felt an object similar to a firearm in his inner left pocket, which he had taken out and immediately dropped on the ground. The officers had then asked him if he had found everything and he had noticed another object of a rectangular shape in the same pocket, which he had also dropped on the ground.", "40. On 10 October 2001 prosecutor J.D. decided to order a forensic medical examination to determine the injuries sustained by the applicant. In her decision, she noted that the applicant’s statements suggested that the police officers had pulled him out of the car, had pushed him to the ground and had kicked him no less than five times in the back, shoulders and arms. In addition, she noted that the applicant had submitted that one of the officers had been standing on the exact spot where he had had his injury. She also noted that the applicant had been Category 2 disabled and at the time of the arrest had been under the influence of alcohol. The decision to order the forensic examination was received by the competent forensic authority on 8 November 2001.", "41. On 22 October 2001 the applicant was released pending trial in connection with the firearm charge, but was remanded in custody in relation to other charges (see paragraph 48 below).", "42. On 5 November 2001 prosecutor J.D. decided to separate the applicant’s allegations of ill-treatment from his criminal case file (see, as concerns the investigation, paragraphs 23 et seq. above). In her decision, she noted that the applicant had been arrested on 10 September 2001 for a traffic offence, and that the police officers had found a firearm in his jacket pocket. She also noted the applicant’s submissions about his alleged ill ‑ treatment and the fact that the traffic officers had denied the allegations. Lastly, she noted that although a forensic medical examination had been ordered, it had not yet been carried out. As it was her view that the results of the examination would not affect the qualification of the applicant’s offence, she separated the materials concerning the alleged ill-treatment from the case file and sent them to the Olaine police for additional review.", "43. There is no information available as to whether any review was carried out by the Olaine police.", "44. On 8 November 2001 prosecutor J.D. sought the advice of an expert to answer the question “Would the driver of a BMW 535 driven on wet tarmac at a speed of 200 to 230 km/h lose control, if a window is opened, either manually or electronically, to throw something out?” The expert concluded that it was possible in both situations, but that it would be more difficult if the window was opened manually, which was less likely to be the case for the model of car mentioned.", "45. On 20 November 2001 prosecutor J.D. issued the final bill of indictment concerning the firearm charge against the applicant.", "46. On 22 November 2001 and 8 January 2002 prosecutor J.D. examined the applicant’s request for the criminal proceedings against him to be terminated on the grounds that he was innocent, his guilt not having been proven, and because the firearm did not belong to him. She rejected the request on the basis that the applicant’s guilt had been proven by the case materials in their entirety. There were therefore no grounds to terminate the criminal proceedings.", "2. Bodily injury and rape charge", "47. Meanwhile, on 17 September 2001, the Jelgava police instituted criminal proceedings against the applicant in connection with the bodily injury and rape of a minor girl that had taken place on 9 September 2001.", "48. It appears that on 22 October 2001 the applicant was remanded in custody in connection with those charges.", "49. On an unspecified date the case was sent to the relevant prosecutor’s office in Jelgava ( Jelgavas pilsētas prokuratūra ).", "50. On 28 November 2001 the final bill of indictment was issued concerning the bodily injury and rape charge against the applicant.", "3. The applicant’s trial concerning both charges", "51. A trial took place from 24 May to 4 June 2002, and on the latter date the Jelgava Court ( Jelgavas tiesa ) found the applicant guilty of both (the firearm and the bodily injury and rape) charges and, taking into account his state of his health, sentenced him to five years and six months’ imprisonment, into which a previous suspended prison sentence was also incorporated.", "52. As concerns his arrest on 10 September 2001, the applicant told the court that he had been fleeing from the police. He submitted that two police officers had pulled him out of the car in Jaunolaine, had pushed him to the ground and had handcuffed him. While lying down on the ground, he had been kicked hard several times in his back. He then had felt a sharp pain in his back, had told the officers about his disability and had invited them to verify his documents, which they had done. The officers had then made him stand up and put on his jacket, which until then had been lying on the passenger seat. Afterwards, one of the officers had ordered him to empty his pockets. He had felt a gun in his pocket and had immediately dropped it on the ground. The officers had then requested all the contents of his pockets to be emptied. When he had felt another object in his pocket, which had turned out to be an ammunition clip, he had dropped that on the ground as well.", "53. As concerns the firearm, the applicant submitted that it had not been his. It had either been planted on him by the police officers in an attempt to evade criminal liability for having assaulted a disabled person, or by someone who had put it in his pocket the day before (during the events surrounding the bodily injury and rape charge).", "54. The trial court did not give credence to the applicant’s allegations of ill-treatment by the police officers on the grounds that the forensic examination had concluded that the applicant had not sustained any bodily injuries (see paragraph 30 above).", "55. O.Ž. was the only traffic police officer to give evidence before the trial court and relied on his cross-examination with the applicant (see paragraph 38 above). O.Ž. testified that on pulling the applicant out of the car in Jaunolaine, his jacket had opened and O.Ž. had seen an object similar to a firearm in the applicant’s inner pocket. For that reason he had been pushed to the ground using force and handcuffs had been put on him. O.Ž. had then taken the firearm out of the applicant’s inner pocket and had put it on the bonnet of the car. The local police had then been called.", "56. In examining the officer’s evidence, the trial court found it consistent and unvaried throughout the preliminary investigation and the trial. They further relied on evidence given by an officer of the Olaine police during the pre-trial investigation, who stated that when he had arrived at the scene the firearm had been on the bonnet of the car and a bullet had been found inside.", "57. On 21 October 2002, following an appeal by the applicant, the Zemgale Regional Court ( Zemgales apgabaltiesa ) upheld the judgment of the trial court.", "58. The applicant subsequently lodged an appeal on points of law, but on 2 December 2002 this was dismissed by the Senate of the Supreme Court ( Augstākās tiesas Senāts ) in a preparatory meeting.", "E. The applicant’s medical care in prison", "1. Rīga Central Prison", "59. From 12 September to 10 October 2001 the applicant was held in the Prison Hospital located within the grounds of Rīga Central Prison. His medical care during that period is described above (see paragraphs 15 to 22 above).", "60. In addition, he was also held in the Prison Hospital during the following periods:", "‑ from 15 November to 3 December 2001;", "‑ from 19 to 27 December 2001;", "‑ from 17 to 25 January 2002;", "‑ from 22 December 2002 to 13 January 2003;", "‑ from 17 January to 7 February 2004; and", "‑ from 17 to 24 January 2006.", "61. It appears that between the periods of hospitalisation prior to his conviction, he was detained in the prison itself.", "62. In the meantime, on 10 October 2001 the applicant’s lawyer applied to a prosecutor seeking permission for the applicant to be transported from the prison to the Commission for Health and Working Capacity Examination ( Veselības un darbaspēju ekspertīzes komisija ). On 13 November 2001 that prosecutor informed the lawyer that under Regulation of the Cabinet of Ministers no. 358 (1995), transport to the Commission was only permitted for convicted prisoners. Its doctors were not permitted to visit detainees awaiting trial in Rīga Central Prison.", "2. Liepāja Prison", "63. On 19 August 2002 the applicant was transferred to Liepāja Prison to serve his sentence, where he remained until 13 December 2002. Upon admission, he requested that he be provided with mobility assistance. He immediately received crutches. By the end of August, with the help of a donation by the local Red Cross, he received a wheelchair.", "3. Pārlielupe Prison", "64. On 13 December 2002 the applicant was transferred to Pārlielupe Prison to continue serving his sentence. He was held in that prison until 27 October 2003, save for a period of twenty-two days when he was in the Prison Hospital (see paragraph 60 above).", "65. On 9 April 2003 the local social services in Jelgava ( Jelgavas sociālo lietu pārvalde ) informed the applicant that a wheelchair had been ordered for him and would be delivered accordingly.", "4. Valmiera Prison", "66. On 27 October 2003 the applicant was transferred to Valmiera Prison to continue serving his sentence. He was held in that prison until 21 April 2006, save for two periods of twenty-one and seven days respectively when he was in the Prison Hospital (see paragraph 60 above).", "67. In the prison the applicant was placed in “the open living area” ( atklātā dzīvojamā zona ) in a unit for convicted prisoners with health problems. The applicant shared his cell with another inmate.", "68. The facilities in Valmiera Prison were adapted for the applicant’s needs to the following extent:", "‑ he was allowed to have his meals delivered to his cell instead of having to go to the canteen;", "‑ he was allowed to attend sauna once a week at special times;", "‑ every day from 6 a.m. to 10 p.m. he could stay in the open area in his unit and have access to fresh air;", "‑ a ramp was installed so that he could access the outdoor yard;", "‑ toilets were adapted for his needs;", "‑ he was exempted from social work and from every day check ‑ ups;", "‑ the staff of the medical unit visited him in his cell so that he did not need to go to the unit himself.", "69. On 29 January 2004 a computerised tomography (CT) scan of the applicant’s spine was carried out at a specialist clinic in Rīga. On two further occasions the applicant was examined at a public hospital in Valmiera.", "70. On 2 August 2005 the applicant complained to the National Human Rights Office ( Valsts cilvēktiesību birojs ) about the conditions of his detention in Valmiera Prison and the adequacy of his medical support. As he had become paraplegic, he could not access the sanitation facilities (including the toilets and shower), library, shop or meeting and telephone rooms. He was also unable to go outside for walks. The applicant complained that he needed two operations, one so that he could walk again and the other to remove the metal implant supporting his spine. On 12 August 2005 his complaint was forwarded to the Prisons Administration ( Ieslodzījuma vietu pārvalde ).", "71. On 2 September 2005 the Prisons Administration replied to the applicant and the National Human Rights Office that his complaints concerning the medical unit of Valmiera Prison were unsubstantiated. The Category 1 disability certificate had been granted to the applicant from 13 February 2005 to 28 February 2006. He had correctly noted himself in his complaint that such surgery could not be performed in Latvia. Furthermore, the medication necessary for acute conditions was available in the medical unit of Valmiera Prison.", "72. On 7 September 2005 the National Human Rights Office sent the Prisons Administration a repeated request seeking a comprehensive review of the applicant’s complaints as it had not been done. In particular, answers were required concerning the applicant’s medical and social care and social integration in the prison.", "73. On 21 September 2005 the Prisons Administration replied, adding to its previous letter that the applicant had failed to approach the medical staff in Valmiera Prison as concerns the surgery he allegedly needed. It stated that only doctors could ascertain if, where and when the applicant needed surgery and under which circumstances. According to the information in its possession, at that time no real possibility had existed for such surgery to be performed in Latvia. At the same time, it had been aware that the operations requested had not been urgent. The applicant had also been advised to actively engage in therapeutic/remedial gymnastics ( ārstnieciskā fizkultūra ). As concerns his social care, under domestic law there was no such care in prisons for the disabled and, accordingly, the administration of Valmiera Prison could not appoint someone to assist the applicant. The prison staff did not include social workers. Lastly, it was noted that as far as possible the administration of Valmiera Prison had facilitated the applicant’s life in prison, for example, by exempting him from participating in daily check ‑ ups.", "74. On 12 October and 7 December 2005 the National Human Rights Office requested further information from the Prisons Administration and the Ministry of Justice concerning social care for disabled prisoners.", "75. On 27 January 2006 the National Human Rights Office informed the applicant that, according to the information provided by the Ministry of Justice, domestic law did not contain any provisions for social care for prisoners with disabilities. However, new regulations concerning the issue were in the process of being drafted.", "76. On 21 April 2006 the Valmiera District Court ( Valmieras rajona tiesa ) conditionally released the applicant prior to completion of his sentence ( atbrīvot nosacīti pirms termiņa ) ten months and seventeen days early, on the grounds that he had served three-quarters of his sentence, had not breached the prison regime (his disciplinary punishments had been removed), had a Category 1 disability and had received a satisfactory reference from the administration of the prison.", "77. It appears that the applicant’s medical records contain information received from the State Probation Service in Jelgava suggesting that after his release, the applicant had been seen walking around the city of Jelgava on his own legs and drinking.", "III. The organisation of health care in prison with specific reference to the management of certain common problems", "C. Persons unsuited to continued detention: serious physical handicap, advanced age, short term fatal prognosis", "“50. Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population. Structural alterations should be effected to assist the wheelchair-bound and handicapped on lines similar to those in the outside environment. ...”", "82. Recommendation CM/Rec (2012) 5 of the Committee of Ministers of 12 April 2012 on the European Code of Ethics for Prison Staff, provides, in particular:", "IV. Guidelines for prison staff conduct", "D. Care and assistance", "“19. Prison staff shall be sensitive to the special needs of individuals, such as juveniles, women, minorities, foreign nationals, elderly and disabled prisoners, and any prisoner who might be vulnerable for other reasons, and make every effort to provide for their needs.", "20. Prison staff shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required.", "21. Prison staff shall provide for the safety, hygiene and appropriate nourishment of persons in the course of their custody. They shall make every effort to ensure that conditions in prison comply with the requirements of relevant international standards, in particular the European Prison Rules.", "22. Prison staff shall work towards facilitating the social reintegration of prisoners through a programme of constructive activities, individual interaction and assistance.”", "83. The European Prison Rules, adopted on 11 January 2006, are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by those rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates. The relevant parts read as follows:", "Hygiene", "“19.1 All parts of every prison shall be properly maintained and kept clean at all times.", "19.2 When prisoners are admitted to prison the cells or other accommodation to which they are allocated shall be clean.", "19.3 Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy.", "19.4 Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene.", "19.5 Prisoners shall keep their persons, clothing and sleeping accommodation clean and tidy.", "19.6 The prison authorities shall provide them with the means for doing so, including toiletries and general cleaning implements and materials.”", "B. Relevant domestic law", "1. In relation to criminal proceedings", "84. The relevant provisions of the former Code of Criminal Procedure ( Kriminālprocesa kodekss ), in force until 1 October 2005, read as follows:", "Section 3(1) (duty to institute criminal proceedings)", "“A court, prosecutor or investigating authority, in so far as it is within its powers, shall institute criminal proceedings whenever signs of a criminal offence ( noziedzīga nodarījuma pazīmes ) are discovered, using all means laid down in law with a view to discovering any incidence of a criminal offence and the persons responsible for the criminal offence in order to punish them.”", "Section 5 (circumstances precluding criminal proceedings)", "“Criminal proceedings may not be instituted, but instituted proceedings shall be terminated: ...", "2) if there are no elements of a criminal offence. ...”", "Section 109(1), (2) and (5) (duty to examine applications and declarations concerning criminal offences)", "“An investigating authority, prosecutor, judge or court shall accept material, applications and declarations concerning a criminal offence that has been committed or planned, including in cases which do not fall under its jurisdiction.", "In response to the material, applications or declarations received, one of the following decisions shall be adopted:", "1) to institute criminal proceedings,", "2) to refuse to institute criminal proceedings,", "3) to forward the application or declaration to the competent authority.", "...", "Applications and declarations concerning crimes shall be examined immediately, but at the latest within ten days of their receipt. If an expert or audit report or specialist’s consultation is necessary for such examination, applications and declarations shall be examined at the latest within 30 days. ”", "Section 112(3) (refusal to institute criminal proceedings)", "“A copy of the decision to refuse to institute criminal proceedings ... shall be sent to the applicant and those concerned with an explanation of their right to complain about the decision: a decision adopted by an investigating authority to a corresponding prosecutor, by a prosecutor to a higher-ranking prosecutor, by a prosecutor of the Office of the Prosecutor General to the Prosecutor General, and by a judge to a higher-instance court.”", "Section 212(5) and (6) (decision to terminate criminal proceedings)", "“An individual, the criminal proceedings against whom have been terminated, a victim and his or her representative, as well as an applicant or an institution upon which application the criminal proceedings had been instituted, shall immediately be informed of the termination of the criminal proceedings by a prosecutor or an investigating authority ( izziņas izdarītājs ), with an explanation of their rights to be acquainted with the decision and with the case materials. ...", "Those concerned may lodge an appeal to a higher-ranking prosecutor or, if a decision has been taken by a prosecutor of the Office of the Prosecutor General, to the Prosecutor General, within five days of being notified.”", "Section 220 (procedure for lodging complaints against the actions of an investigating authority)", "“A suspected or an accused individual and their counsel or legal representatives, witnesses, experts, translators, guarantors, as well as a victim, a civil party, a civil respondent, their representatives and other individuals may lodge complaints with a prosecutor about the actions of an investigating authority. The complaints shall be submitted to a prosecutor directly or through the intermediary of the authority against whom the complaint was brought. Complaints may be made either in writing or verbally. In the latter case, the prosecutor or the investigating authority shall write the complaints down in the minutes to be signed by the complainant. The complaint submitted to the investigating authority shall be forwarded, together with written explanations by the latter to the prosecutor. ...”", "Section 221 (procedure for a prosecutor’s review of a complaint)", "“The prosecutor supervising the investigation shall review a complaint within ten days of receipt. A higher-ranking prosecutor shall review a complaint within ten days of receipt, or if further investigation is necessary or additional information has to be requested, within thirty days. The complainant shall be informed of the outcome. If the complaint is rejected as unsubstantiated, the prosecutor shall provide reasons and explain the procedure for appeal. An appeal against the decision made by the prosecutor in reviewing the complaint, may be made by the complainant or the investigating authority to a higher-ranking prosecutor.”", "Section 222 (complaints about actions of a prosecutor)", "“Complaints about the actions of a prosecutor shall be submitted to a higher-ranking prosecutor and reviewed in accordance with the procedure laid down in sections 220 and 221 of this Code.”", "2. In relation to medical care", "85. Regulation of the Cabinet of Ministers no. 358 (1999), in force at the material time and effective until 28 March 2007, provided as follows:", "“2. Convicted persons shall receive the minimum standard of health care free of charge up to the amount established by the Cabinet of Ministers. In addition, the Prisons Administration, within its budgetary means, shall provide the convicted persons with:", "2.1. primary, secondary and tertiary (in part) medical care;", "2.2. emergency dental care;", "2.3. examination of health conditions;", "2.4. preventive and anti-epidemic measures;", "2.5. medication and injections prescribed by a doctor of the institution;", "2.6. medical accessories.", "3. Detained persons shall receive medical care in accordance with Article 2 of these regulations, excluding planned inpatient treatment ... Detained persons shall be sent to receive inpatient treatment only in acute circumstances.”" ]

[ "II. RELEVANT INTERNATIONAL AND DOMESTIC LAW", "A. International law", "1. Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106)", "78. The Convention entered into force on 3 May 2008, was signed by Latvia on 18 July 2009 and ratified on 1 March 2010. The relevant parts provide:", "Article 2 - Definitions", "“For the purposes of the present Convention:", "...", "‘Reasonable accommodation’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms; ...”", "Article 14 - Liberty and security of the person", "“2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.”", "79. In Interim Report of 28 July 2008 (A/63/175), the then UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak, noted as follows:", "“50. ... Persons with disabilities often find themselves in [situations of powerlessness], for instance when they are deprived of their liberty in prisons or other places ... In a given context, the particular disability of an individual may render him or her more likely to be in a dependant situation and make him or her an easier target of abuse ...", "...", "53. States have the further obligation to ensure that treatment or conditions in detention do not directly or indirectly discriminate against persons with disabilities. If such discriminatory treatment inflicts severe pain or suffering, it may constitute torture or other form of ill-treatment. ...", "54. The Special Rapporteur notes that under article 14, paragraph 2, of the CRPD, States have the obligation to ensure that persons deprived of their liberty are entitled to ‘provision of reasonable accommodation’. This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others, when such adjustments do not impose disproportionate or undue burden. The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill-treatment and torture.”", "2. Council of Europe material", "80. The relevant extracts from the 3rd General Report (CPT/Inf (93) 12; 4 June 1993) by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:", "e. Humanitarian assistance", "“64. Certain specific categories of particularly vulnerable prisoners can be identified. Prison health care services should pay especial attention to their needs.”", "...", "iv) prisoners unsuited for continued detention", "“70. Typical examples of this kind of prisoner are those who are the subject of a short ‑ term fatal prognosis, who are suffering from a serious disease which cannot be properly treated in prison conditions, who are severely handicapped or of advanced age. The continued detention of such persons in a prison environment can create an intolerable situation. In cases of this type, it lies with the prison doctor to draw up a report for the responsible authority, with a view to suitable alternative arrangements being made.”", "g. Professional competence", "“76. To ensure the presence of an adequate number of staff, nurses are frequently assisted by medical orderlies, some of whom are recruited from among the prison officers. At the various levels, the necessary experience should be passed on by the qualified staff and periodically updated.", "Sometimes prisoners themselves are allowed to act as medical orderlies. No doubt, such an approach can have the advantage of providing a certain number of prisoners with a useful job. Nevertheless, it should be seen as a last resort. Further, prisoners should never be involved in the distribution of medicines.", "77. Finally, the CPT would suggest that the specific features of the provision of health care in a prison environment may justify the introduction of a recognised professional speciality, both for doctors and for nurses, on the basis of postgraduate training and regular in-service training.”", "81. Recommendation no. R (98) 7 of the Committee of Ministers of 8 April 1998 concerning the ethical and organisational aspects of health care in prison, provides, in so far as relevant:", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE EVENTS OF 10 SEPTEMBER 2001", "86. The applicant alleged that the police officers had ill-treated him on 10 September 2001. He also complained about the investigation into these events. The Court considers that this complaint falls to be examined under Article 3 of the Convention, which reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Admissibility", "1. Parties’ submissions", "87. The Government argued that the applicant had not exhausted the domestic remedies available to him under sections 220 and 222 of the former Code of Criminal Procedure. They pointed out that he had failed to complain about the decision of 27 November 2001 to a higher-ranking prosecutor; he could have done so either orally or in writing. In this connection, the Government noted that the applicant had been able to lodge a complaint with the doctor of the Prison Hospital around the same time, and moreover that he had been represented by counsel in the criminal proceedings, who could have lodged complaints on his behalf. In any event, the Government argued that the applicant had not complied with the six ‑ month time-limit, since he had lodged his application with the Court on 31 January 2003, whereas the final decision had been adopted on 27 November 2001. It was their view that the trial court could not be considered an effective remedy, considering the lapse of time of almost nine months between the moment the alleged violation took place and the moment the issue was raised before the trial court. The Government argued that even if the trial court had instituted criminal proceedings, they could only have sent the case materials to the prosecutor’s office for a repeated investigation.", "88. The applicant admitted that he had not appealed against the decision to refuse the institution of criminal proceedings. He considered the remedy ineffective. Firstly, the decision had contained a reference to section 212 of the former Code of Criminal Procedure, which was incorrect since the relevant provision at that time had been section 112. The Government’s reliance on sections 220 and 222 of the former Code of Criminal Procedure was also misguided, since those sections referred only to challenging the actions of investigators and not to refusals to institute criminal proceedings at all. In any event, the applicant submitted that he had not been informed of his rights to complain about the decision. Secondly, at the time the decision had been adopted, the applicant had been in the Prison Hospital suffering from severe pain, and it had been extremely difficult for him to challenge the decision on account of the state of his health. Since the applicant did not consider this remedy effective, he had brought his complaints to the attention of the trial court within the criminal proceedings against him. Referring to the judgment of 4 June 2002, the applicant pointed out that the Jelgava Court had in fact examined his allegations of ill-treatment, but had found the police officers’ statements and the results of the forensic examination sufficient to reject them. The applicant pointed out that under section 257 of the former Code of Criminal Procedure, the trial court had the competence to institute criminal proceedings against third parties. It was therefore his view that the trial court had been the proper remedy in his case and that he had submitted his application within the requisite six-month time-limit.", "2. The Court’s assessment", "89. The Court considers that the Government’s preliminary objections are closely related to the merits of the applicant’s complaint. It will therefore examine them together with the merits of this complaint (see Timofejevi v. Latvia, no. 45393/04, 11 December 2012, § 84).", "90. The Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Parties’ submissions", "(a) The applicant", "91. The applicant maintained that he had been subjected to physical ill ‑ treatment by the police officers. He referred to the medical evidence obtained from the public and specialist hospitals, which confirmed that he had not only had a hyperextension injury, but also a contusion to the lower back and broken fixing screws that had held the metal implant supporting his spine in place. The applicant submitted that the forensic examination which had been carried out two months later, which allegedly “did not establish any bodily injuries”, could not be the basis for disregarding the medical evidence available.", "92. Furthermore, although discharged from the specialist hospital the day after his admission, he had subsequently been admitted to the Prison Hospital for a total duration of 111 days within a four-and-a-half year period. Meanwhile, he had become paraplegic and he had been certified as being Category 1 disabled. That, together with the above-mentioned injury, was sufficient to establish that the alleged ill-treatment had taken place, and that the police officers’ conduct was sufficiently severe to fall within the scope of Article 3 of the Convention.", "93. The applicant also argued that his conduct during the arrest had not warranted severe physical force by the police officers and that the force used on him had been disproportionate. The police officers had acted aggressively towards him as he had tried to escape.", "94. The applicant submitted that the investigation into his complaint had been ineffective. To his knowledge, it had been limited to a questioning of the police officers, his confrontation with those officers, and the forensic examination. It remained unclear why the diagnoses of the public and specialist hospitals had been disregarded by the investigators and the forensic expert. He reiterated that their records had indicated that he had sustained bodily injuries. The applicant further noted that no witnesses had been questioned for the purposes of the investigation, which he had considered crucial in view of the fact that the medical evidence and the statements of the applicant and the police officers were all conflicting.", "(b) The Government", "95. The Government contested that the applicant had been subjected to ill-treatment contrary to Article 3 of the Convention. They did not dispute the fact that on the day after his arrest, he had been taken to the specialist hospital in view of his complaints concerning lower back pain. The Government admitted that a hyperextension injury had been established, but noted that the applicant had a pre-existing spinal injury which had already been operated on. They pointed out that the doctors had not established any visible bodily injuries on the applicant’s body. The Government relied on the police officers’ statements, and argued that during his arrest the applicant had been aggressive and drunk. Having seen a gun in his pocket, the officers had pushed him to the ground, had pulled his arms backwards and had handcuffed him. The Government admitted that the applicant’s spine had been twisted backwards extensively and that that a certain degree of force must have been used on him. They acknowledged that the applicant’s pain might have been caused by the police officers’ conduct.", "96. However, the Government were of the view that the police officers’ conduct had been proportionate, and that the use of force and handcuffs had not been excessive in the circumstances. They distinguished the case at hand from Rehbock v. Slovenia (no. 29462/95, ECHR 2000 ‑ XII), and noted that in the present case the applicant had been arrested in the course of a random operation that might have given rise to unexpected developments. They emphasised that the applicant had been carrying a gun and had been drunk, thus his behaviour had been unpredictable. They submitted that handcuffing as such did not raise an issue under Article 3, citing the case of Raninen v. Finland (16 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII). Their conclusion was that the police officers had had recourse to force during the applicant’s arrest only to the extent that it had been made necessary by his conduct.", "97. In addition, the Government alleged that immediately after the police officers had become aware of the fact that the applicant had had health problems, he had been pulled up from the ground and the handcuffs had been removed.", "98. The Government also submitted that the alleged injuries had not caused serious suffering to the applicant as he had been discharged from the specialist hospital for outpatient treatment the following day. The Government concluded that it had not been proved “beyond reasonable doubt” that the applicant had been ill-treated and that the police officers’ conduct had attained a sufficient level of severity to fall within the scope of Article 3 of the Convention.", "99. The Government argued that there had been an effective investigation into the applicant’s allegations of ill-treatment on 10 September 2001. They reiterated that the effectiveness of the investigation did not depend on a positive outcome for the applicant. The Government noted that, on the one hand, during his questioning on 11 September 2001, the applicant had complained that the police officers had used physical force and that he had sustained bodily injuries as a result. On the other hand, the police officers had denied this during their own questioning and also during their confrontation with the applicant. In the Government’s submission, a forensic examination had been the only way to verify the applicant’s allegations. Lastly, in view of the conclusion of the forensic expert that the applicant had not sustained any bodily injuries, the criminal proceedings had been terminated.", "2. The Court’s assessment", "100. The Court reiterates that where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill ‑ treatment (see Bursuc v. Romania, no. 42066/98, § 80, 12 October 2004; Matko v. Slovenia, no. 43393/98, § 99, 2 November 2006; Mrozowski v. Poland, no. 9258/04, § 26, 12 May 2009). Although the use of force during arrest, even if resulting in injury, may fall outside the scope of Article 3 if the use of force had been indispensable and resulted from the conduct of the applicant (see Klaas v. Germany, 22 September 1993, § 30, Series A no. 269), the Court also points out that where an individual, when taken into police custody, is in good health, but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999 ‑ V).", "101. The Court further notes that in assessing evidence in a claim of a violation of Article 3 of the Convention, it adopts the standard of proof “beyond reasonable doubt”. Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Farbtuhs v. Latvia, no. 4672/02, § 54, 2 December 2004; Bazjaks v. Latvia, no. 71572/01, § 74, 19 October 2010; and Krivošejs v. Latvia, no. 45517/04, § 69, 17 January 2012).", "102. Furthermore, where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV).", "103. An obligation to investigate “is not an obligation of result, but of means”: not every investigation should necessarily come to a conclusion which coincides with the applicant’s account of events. However, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Mikheyev v. Russia, no. 77617/01, § 107, 26 January 2006).", "104. The investigation into allegations of ill-treatment must be thorough. That means that the authorities must make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis for their decisions (see Assenov and Others v. Bulgaria, 28 October 1998, § 103 et seq., Reports 1998 ‑ VIII). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness accounts, forensic evidence and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of the applicable standard (see Mikheyev, cited above, § 108).", "105. For an investigation to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see Barbu Anghelescu v. Romania, no. 46430/99, § 66, 5 October 2004). This means not only a lack of hierarchical or institutional connection but also practical independence (see, for example, Ergi v. Turkey, 28 July 1998, §§ 83-84, Reports 1998 ‑ IV, where the public prosecutor investigating the death of a girl during an alleged clash showed a lack of independence through his heavy reliance on the information provided by the gendarmes implicated in the incident).", "106. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used by the police was or was not justified in the circumstances (see Kaya v. Turkey, 19 February 1998, § 87, Reports 1998-I).", "107. The Court observes that the applicant was arrested following a car chase which ensued after the applicant had refused to stop on the police officers’ instructions. It is common ground between the parties that the officers used some physical force to pull the applicant out of his car, to push him to the ground and to handcuff him. However, the parties disagree as concerns the nature of injuries sustained by the applicant and whether or not they were caused by the officers’ actions.", "108. The Government submitted that the applicant’s spine had been twisted backwards, but emphasised that he had had a prior spinal injury. Force that had been used on the applicant was proportionate in view of his conduct. The applicant, however, argued that the force used on him had been disproportionate. In addition to a hyperextension injury on his back, the applicant also had a contusion to the lower back and broken fixing screws that held the metal implant supporting his spine. He had become paraplegic as a result. The Court notes that the medical examination results referred to by the applicant were strictly limited to establishing his state of health, which at least in part mentioned his previous condition, but not to the circumstances surrounding his arrest. The forensic expert in the present case, in contrast with Mrozowski case (cited above, § 13), did not provide an answer to the question whether the injuries sustained by the applicant could have been inflicted by the police officers in the manner as described by the applicant.", "109. The Court finds it impossible to establish, on the basis of the evidence before it, whether or not the applicant’s injuries were caused as alleged. However, for the reasons set out below, the Court notes that it cannot accept the Government’s argument that the investigation by the prosecuting authorities were effective in the present case and observes that the difficulty in determining whether there was a plausible explanation for the applicant’s injuries or whether there was any substance to his allegations of ill-treatment rests with the failure of the authorities to investigate his complaints effectively (see Veznedaroğlu v. Turkey, no. 32357/96, § 31, 11 April 2000; Petru Roşca v. Moldova, no. 2638/05, § 42, 6 October 2009; Popa v. Moldova, no. 29772/05, § 39, 21 September 2010; and Hristovi v. Bulgaria, no. 42697/05, § 83, 11 October 2011). The Court will now examine this matter further.", "110. At the outset, the Court observes that it is not disputed by the parties that the State was under a procedural obligation, arising from Article 3 of the Convention, to carry out an effective investigation into the circumstances in which the applicant was arrested.", "111. The Court notes that the authorities carried out an inquiry into the applicant’s allegations. It is not convinced, however, that the inquiry was sufficiently thorough and effective to meet the requirements of Article 3 of the Convention.", "112. The Court observes at the outset that the Olaine police started the investigation soon after the events had taken place, admittedly at this point in connection with the criminal proceedings against the applicant. The Court notes that the Olaine police, as the competent investigating authority at that point in the criminal proceedings, was in charge of two investigations based on mutually contradictory allegations – in relation to the firearm charge against the applicant and in relation to his allegations of ill-treatment upon arrest implicating the traffic police officers who had discovered the firearm. The Court has found in a number of cases against Latvia that minimum standards of an independent investigation have not been respected where the police was charged with investigating allegations relating to its own officers (see Jasinskis v. Latvia, no. 45744/08, § 75, 21 December 2010; Timofejevi v. Latvia, no. 45393/04, § 98, 11 December 2012, and Vovruško v. Latvia, no. 11065/02, § 50, 11 December 2012). Bearing in mind that the Olaine police sent the case material to the prosecutor for bringing the firearm charge against the applicant on the 8 th day after the events and that they took no additional investigative steps after the prosecutor sent back the case material in relation to the allegations of ill-treatment for additional review on 5 November 2001, the Court considers it sufficient to note that the investigation by the Olaine police in this regard can hardly be considered showing the necessary diligence for the following reasons.", "113. The Court considers that not all reasonable steps to secure the available evidence were taken. It is true that both traffic police officers were questioned on the day of the events, and that the following day an attempt was made to question the applicant, who owing to his state of health could not give evidence alleging that he had been ill-treated. However, there were discrepancies between police officer E.Š.’s statement and his own report about the arrest as to where exactly a bullet was found, either together with a gun in the applicant’s pocket or inside the car. The Olaine police did not look into this. It appears that this conflicting statement was not admitted as evidence in the applicant’s trial concerning the firearm charge. Further discrepancies were present in the forensic reports as concerns the place where the bullet was found. These discrepancies were not examined further, which undermines the thoroughness and reliability of the pre-trial investigation. It appears that the investigation by the Olaine police had consisted of a questioning of the police officers and the applicant, and some forensic examinations which did not yield any results. No medical examination of the applicant was ordered at this point.", "114. It remains to be examined whether the above-mentioned shortcomings could, to a certain extent, be counterbalanced by an effective supervision of the investigation (see the above-cited Vovruško case, § 51). The Court refers in this connection to other cases against Latvia, where it has found various shortcomings in the exercise of the prosecutorial supervision at the material time (see Timofejevi, §§ 101 and 103, and Vovruško, §§ 52-53, cited above). In the case at hand, the Court notes that the prosecutor was the same person who brought the formal firearm charge against the applicant and issued the final bill of indictment in that regard (see paragraphs 37 and 45 above). The Court further notes that on two occasions, the same prosecutor rejected the applicant’s request to terminate the criminal proceedings against him on the basis that his guilt had been duly established (see paragraph 46 above). The Court considers that the prosecutor relied to a considerable extent on the statements of the police officers who had been implicated in the events, and fully accepted their denial of having assaulted the applicant, as evidenced by the scarcely reasoned decision to refuse the institution of proceedings. This is sufficient to cast doubt on the effectiveness of the prosecutor’s supervision of the investigation in the applicant’s case, particularly as she did not carry out any assessment of the statements given by the police officers and the applicant, and did not provide reasons why she considered the police officers’ statements more credible. Nor were her conclusions based on witness statements, proper forensic examination reports or other evidence.", "115. The Court considers that the prosecutor did not proceed with securing further evidence with requisite expedition. It appears that the forensic examination concerning the applicant’s injuries was ordered one month after the applicant’s arrest, and in actual fact was not carried out until a month later. The Court considers the total delay of two months for ordering and carrying out a forensic examination of injuries sustained by the applicant unacceptable. Nor did the prosecutor ensure that the forensic expert examined the applicant in person (see, for an example of similar shortcomings in an investigation the above-cited Vovruško case, § 49), thereby making it impossible to discover any physical marks or injuries on the applicant’s body, if there had been any and that they could have remained visible two months after the events. The prosecutor also endorsed the forensic expert’s disregard of the first diagnosis made by doctors at the specialist hospital concerning the hyperextension injury because “they were not confirmed by visible bodily injuries”. The Court does not agree that only visible injuries on an individual’s body could serve as a proof of ill ‑ treatment. It further notes that the conclusions made by the specialist hospital (about the broken screws and dislodging of the metal implant) were based on an X-ray of the applicant, which the prosecutor appears to have omitted to take into consideration when examining the case. Moreover, it appears that the prosecutor failed to take any steps to obtain any eyewitness accounts, which could have shed some light on the disputed circumstances of the arrest, given that it had taken place next to an apartment building in a residential area.", "116. Lastly, the Court considers that the prosecutor’s supervision of the investigation was deficient in that she did not ensure that any additional investigative activities were taken in response of her remittal of the case material back to the Olaine police on 5 November 2001.", "117. In response to the Government’s argument that higher-ranking prosecutor’s supervision was required, the Court observes that it appears that the applicant was not notified of the procedure or time-limit for lodging a complaint against the decision of 27 November 2001. The prosecutor had an obligation under domestic law to explain these rights to the applicant, which she failed to do, thereby causing confusion as to the applicable procedures for complaint. The Government further argued that the applicant’s counsel could have lodged a complaint to a higher-ranking prosecutor on his behalf, if the applicant himself was not capable of doing so on account of his state of health. That counsel, however, appears to have been appointed only in the connection with the criminal proceedings against the applicant, and it remains unclear whether she had the authority to lodge any complaints relating to the criminal proceedings against the police officers. There is no information that she was actually informed about the refusal to institute the criminal proceedings against the police officers.", "118. In any event, the Court considers that the applicant brought his allegations of ill-treatment to the attention of the domestic authorities during his trial. The Court reiterates that at the material time pursuant to section 109 of the former Code of Criminal Procedure a court had to accept any material concerning criminal offences and to institute or refuse to institute criminal proceedings, or forward that material to the competent authority (see paragraph 84 above). The Court has already noted that domestic courts had such competence and that that they could forward the complaint of ill-treatment by the police raised during the trial to the prosecutor’s office (see Timofejevi, cited above, § 104). Likewise, the Court has noted that where representations of ill-treatment were raised during the trial in the presence of a representative of the prosecutor’s office, the latter could not remain passive and had to ensure that an investigation was carried out (see Sorokins and Sorokina v. Latvia, no. 45476/04, §§ 98-99, 28 May 2013). The applicant in the present case pursued his complaint before the national courts, but they did not give any credence to his allegations. No official investigation was triggered. The Court therefore considers that the final decision in relation to the applicant’s complaint of ill-treatment was adopted on 2 December 2002, when the Senate of the Supreme Court dismissed the applicant’s appeal on points of law in the criminal proceedings against him, whereas his complaint to the Court was lodged on 31 January 2003.", "119. The above-mentioned considerations are sufficient for the Court to conclude that the domestic authorities did not ensure an effective investigation into the applicant’s allegations of police ill-treatment on 10 September 2001 and the Court dismisses the Government’s preliminary objections. Accordingly, there has been a violation of Article 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF INADEQUATE MEDICAL ASSISTANCE AND THE UNSUITABILITY OF PRISON FACILITIES", "120. The applicant complained under Article 3 of the Convention that, because of the lack of adequate medical assistance in the Prison Hospital and in Pārlielupe Prison, his state of health had deteriorated considerably, he had become paraplegic and had been certified as being Category 1 disabled, only being able to move in a wheelchair.", "121. He also complained that the facilities in Pārlielupe and Valmiera Prisons had been unsuitable for him as he was wheelchair-bound. He submitted, in support of his allegations, that there had been no social care or assistance in prison to help him with everyday life.", "A. Admissibility", "1. Medical assistance", "122. On the one hand, the Government raised a preliminary objection of non-exhaustion of domestic remedies in relation to the lack of medical assistance in Pārlielupe Prison. They argued that the applicant could have complained to the prison’s medical unit, to the Prisons Administration, to a prosecutor, or to the Inspectorate for Quality Control of Medical Care and Working Capability (“the MADEKKI”), all of which, according to the Government, were effective and accessible domestic remedies and offered reasonable prospects of success. However, they did not provide more information in this connection save for references to the legal provisions describing their respective competence.", "123. On the other hand, they did not raise a similar objection as concerns the applicant’s stay in the Prison Hospital. The Government contended that the applicant’s complaint in this regard was manifestly ill-founded, as he had failed to provide details of the alleged shortcomings.", "124. The applicant disagreed and maintained that he had not received adequate medical treatment either in the Prison Hospital or in Pārlielupe Prison. As regards the Prison Hospital, he pointed out that his spine had not been operated on and that the broken screws and metal implant had not been removed and replaced when necessary. In relation to Pārlielupe Prison, he alleged that he had contracted new illnesses, in that his blood pressure had increased and he had suffered a stroke. In addition, the applicant pointed out that he had been suffering from severe pain even before becoming paraplegic. The mere fact that during detention his health had deteriorated so severely that he had obtained the most severe classification of disability (Category 1) in itself indicated that the medical care had been inadequate.", "125. The Court reiterates that it has spelled out the applicable principles in relation to the adequacy of medical assistance in prisons in connection with complaints under Article 3 of the Convention on numerous occasions in cases against Latvia (see Farbtuhs, cited above, §§ 49-51; Krivošejs, cited above, §§ 69-71; Van Deilena v. Latvia (dec.), no. 50950/06, § 62; 15 May 2012; Epners-Gefners v. Latvia, no. 37862/02, § 43, 29 May 2012; Leitendorfs v. Latvia (dec.), no. 35161/03, § 49, 3 July 2012; and Buks v. Latvia (dec.), no. 18605/03, §§ 39-40; 4 September 2012).", "126. The Court will first turn to the adequacy of the applicant’s medical assistance in the Prison Hospital. It notes in this regard that the applicant’s complaint relates to the period of time that preceded his becoming paraplegic. This period ended either on 17 December 2002, when a note was made for the first time in his prison medical records that he could not walk on his own, or on 23 January 2003 when he was certified as being Category 1 disabled.", "127. The Court observes that the present applicant has not provided any detailed information about the operations he allegedly needed, let alone any medical recommendation or independent expert opinion about their necessity. No suggestion was made by the specialist hospital, where the applicant was examined and treated after the events of 10 September 2001, that any surgery was necessary. Its only recommendations were for the applicant to continue taking medication and to wear a fixating belt. In the absence of an expert medical report or other evidence, the Court is unable to consider that the applicant’s condition necessitated any surgery, contrary to what has been claimed by him. If it is to be understood that he referred to the same operations he requested later in a different prison (see paragraphs 70-73 above), the Court observes that such surgery was unavailable in Latvia at the material time (see, mutatis mutandis, the above-cited Epners ‑ Gefners, § 45), a fact which the applicant did not contest before the Court. Taking into account that the applicant did not highlight any other shortcomings in his medical care in the Prison Hospital, the Court concludes that the applicant has not substantiated his allegations in this regard.", "128. Turning to the medical assistance in Pārlielupe Prison, the Court does not consider it necessary to reach any conclusion as to whether or not the applicant exhausted domestic remedies or whether or not such domestic remedies were effective, since this part of the applicant’s complaint is inadmissible in any event for being manifestly ill-founded.", "129. The Court notes that there is nothing in the case file to suggest that the applicant had any health-related problems in Pārlielupe Prison, save for his allegation of increased blood pressure, for which he provided no proof. The applicant has not submitted, either in his initial application or in his comments after the communication of the present application to the Government, any medical records or other evidence showing that his high blood pressure necessitated any action or treatment on the part of the medical staff of Pārlielupe Prison. He mentioned that he had suffered severe pain, but did not allege that he had been refused painkillers or that he needed to take any other medication. Furthermore, it does not transpire from the information at the Court’s disposal that the applicant suffered from any other illnesses, problems or ailments (apart from his complaint about the adequacy of prison facilities for disabled prisoners, which the Court will examine below), or that he needed constant treatment or care. The Court therefore concludes that the applicant has not laid the basis of an arguable claim that he did not receive adequate medical assistance in Pārlielupe Prison.", "130. It follows that the applicant’s complaints relating to the adequacy of medical assistance in the Prison Hospital and in Pārlielupe Prison must be dismissed in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "2. Prison facilities", "131. On the one hand, the Government argued that the applicant had not exhausted the available domestic remedies in relation to his complaint regarding the unsuitability of the facilities in Pārlielupe Prison. They insisted that he could have complained to the administration of Pārlielupe Prison, to the Prisons Administration, or to a prosecutor. As in relation to the previous complaint, the Government did not provide any further explanation but merely referred to the applicable domestic law.", "132. On the other hand, the Government did not raise a similar objection as concerns the unsuitability of the facilities in Valmiera Prison. The Government contended that the applicant’s complaint in this regard was manifestly ill-founded, as he had been placed in a special unit for inmates with health problems and had been granted certain privileges.", "133. The applicant disagreed and maintained his complaint about the facilities in Pārlielupe Prison and Valmiera Prison. As regards Pārlielupe Prison, he alleged he had needed constant care, as he had not even been able to go to the toilet on his own. He alleged that he had not had access to fresh air. As regards Valmiera Prison he submitted that he had been unable to move around in his wheelchair, that there had been no social care and that he had had to rely on the voluntary assistance of his cellmate (see paragraph 138 below).", "134. The Court will first turn to the facilities in Pārlielupe Prison. As in relation to the previous complaint, the Court does not consider it necessary to reach any conclusion as to whether or not the applicant exhausted domestic remedies and whether or not such domestic remedies were effective, since this part of the applicant’s complaint is inadmissible in any event for being manifestly ill-founded.", "135. The Court observes that the only description it has about the prison facilities in Pārlielupe Prison is the description provided by the applicant, which is surprisingly scarce (when contrasted with his detailed description in relation to Valmiera Prison). The applicant submitted, but provided no proof, that in Pārlielupe Prison he had been unable to access the toilets and had not had access to fresh air. He failed to provide more information as to the location and accessibility of the toilets and exercise yard from his prison cell or from other areas in the prison. The only piece of evidence in support of his allegations was a handwritten request to the administration of Pārlielupe Prison to provide information about his state of health, which did not indicate that he had any problems with mobility or with using or accessing any prison facilities (contrast with the evidence submitted in support of his complaint in relation to Valmiera Prison, see paragraphs 70 ‑ 75). The applicant himself, in his observations in reply to those of the Government, focused on the facilities in Valmiera Prison and did not specifically refer to those in Pārlielupe Prison. In such circumstances, the Court considers that the applicant’s complaint does not contain sufficient detail for the Court to consider that he has raised a prima facie arguable complaint under Article 3 of the Convention about the adequacy of prison facilities in Pārlielupe Prison. The Court concludes that his complaint in that regard is manifestly ill-founded and must therefore be dismissed in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "136. Turning to the applicant’s complaint regarding the unsuitability of prison facilities in Valmiera Prison, the Court notes that his description is sufficiently detailed, and provides the essence of his grievances in relation to that facility. Furthermore, he submitted various reports by the National Human Rights Office and other authorities (see paragraphs 70-75 above) in support of this complaint, in contrast to his complaint about Pārlielupe Prison. In such circumstances, the Court considers that the applicant has set out the basis of a prima facie arguable claim under Article 3 of the Convention about the adequacy of the prison facilities in Valmiera Prison.", "137. In the light of the above, the Court considers that the applicant’s complaint about the adequacy of the prison facilities in Valmiera Prison is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Parties’ submissions", "(a) The applicant", "138. It transpired from the documents submitted by the applicant that certain facilities in Valmiera Prison were not suitable for disabled people in a wheelchair such as him. Several areas were inaccessible in a wheelchair. For example, he could not leave the living area in his unit independently, nor could he access the toilets, canteen, sauna, library, shop, gym, meeting room or telephone room. In the meeting room, where he had conjugal visits with his wife, he could not access the sanitation facilities (toilets and shower) because the doors were too narrow. As his wife could not carry him into these facilities, he had to use a plastic bottle and plastic bag instead of the toilet. He could not use the shower at all and could only clean himself with a damp towel. This had been extremely humiliating.", "139. The applicant admitted that the administration of Valmiera Prison had made some efforts. He admitted to have been exempted from daily check-ups, which had taken place three times a day in the outdoor yard. He mentioned that a wooden ramp had been installed to provide access to that yard; however, these efforts were connected with his physical inability to access certain areas in the prison and was not evidence that the prison authorities had wanted to alleviate the hardship of his detention in that facility.", "140. The applicant further argued that there was no social assistance for disabled prisoners. The applicant had to rely on the voluntary assistance of his cellmate, which could not be considered adequate. He further submitted that being placed in a position of dependence upon the goodwill of other detainees, to whom he had to “pay” with cigarettes and tea, had been extremely humiliating for him. The applicant mentioned that, at times, he had been left outside in the walking area for long periods of time without a rain shelter, as he could not get into the building by himself. The applicant relied on the case of Farbtuhs (cited above, § 60) to argue that that leaving the assistance of disabled prisoners to other detainees was inadequate, since it in effect shifted the responsibility for such people to those other detainees, who lacked the proper qualifications, even if their help was only for a limited period of time. In his view, it was a serious issue under Article 3 of the Convention that a disabled person such as himself had to endure concerns and worries about the inaccessibility of qualified medical assistance in an emergency. He argued that he had been dependent on the goodwill of other detainees to assist him, which had put him in a situation of uncertainty, and had caused him physical and mental suffering and distress. The applicant disagreed with the Government’s distinction between the facts of the present case and those in Farbtuhs. He considered that the Government’s analysis of the Farbtuhs case in relation to the appropriateness of the detention itself was irrelevant. The applicant submitted that the focus of his dissatisfaction was not that he had been held in continued detention despite his poor health, which had been the main problem in Farbtuhs, but rather that the conditions in Valmiera Prison had been unsuitable for him as a disabled person.", "141. Lastly, the applicant strongly disagreed with the Government’s suggestion that he had aggravated his medical condition or had even faked his disability while in detention. He considered this statement insulting. The applicant reiterated that he had spent a long time in prison under the supervision of the prison authorities and considered it impossible to imagine that an individual could fake paralysis in both legs for over four years. There had been no proof in that regard. The mere fact that his medical condition had improved after release only proved that the medical treatment and prison conditions had been detrimental to his health as his state of health had improved upon receipt of the appropriate medical care.", "(b) The Government", "142. The Government noted that during the applicant’s detention in Valmiera Prison he was placed in a special unit for inmates with health problems. In this unit the applicant had shared a separate cell with a convicted prisoner who had undertaken to assist him in case of necessity. The Government further pointed out that the applicant had received certain “privileges” in Valmiera Prison that had not been available to ordinary inmates (see paragraph 68 above).", "143. The Government noted that all the necessary medication for treating the applicant in acute circumstances had been available in the prison’s medical unit. They reiterated that the applicant had been taken for a specialist consultation to public hospitals in Rīga and Valmiera on three occasions, and had also been transferred to the Prison Hospital on three occasions to receive unspecified treatment.", "144. The Government further submitted that between 15 and 17 March 2005 the Prisons Administration had carried out an audit at Valmiera Prison of the special unit for inmates with health problems, concluding that the conditions of detention were satisfactory and that no complaints from inmates had been received. However, the Government did not submit a copy of that report.", "145. The Government made a distinction between the present application and the case of Farbtuhs. In the latter case the relevant domestic authority had admitted that, considering the extremely poor state of the applicant’s health, he could remain deprived of his liberty only if provided with specialist care and treatment. After that conclusion, the Prisons Administration had stated that these conditions could not be provided in a place of deprivation of liberty. Furthermore, a panel of doctors set up by the Prisons Administration had advised the State authorities to release the applicant from prison. Likewise, the present case should be distinguished from the case of Mouisel v. France (no. 67263/01, ECHR 2002-IX), in which the applicant’s doctors and various associations had applied for him to be pardoned, as according to an expert, “he had to be looked after in a specialist unit”. The judge responsible for the execution of sentences had released that applicant on parole, concluding that “[his] condition has become incompatible with his continued detention, on account of the medical care he requires during regular visits to hospital”.", "146. The Government noted that during the present applicant’s detention, the relevant State authorities had never been requested by the applicant himself or by other State authorities to evaluate whether he should remain in continued detention or be released on account of his medical condition or the allegedly inadequate conditions of imprisonment. Nor had such an evaluation obviously been necessitated by the applicant’s medical condition or conditions of detention, since he was provided with the necessary medical treatment and adequate conditions of detention. Nevertheless, on 21 April 2006 the Valmiera District Court had conditionally released the applicant from the prison ten months and seventeen days early. The above decision was based, inter alia, on the fact that the applicant had a Category 1 disability.", "147. The Government strongly insisted that the applicant had received adequate assistance for his medical condition during his imprisonment in Valmiera Prison, and that there were no symptoms indicating that specific treatment was necessary. Likewise, the Government contended that the state of the applicant’s health evidently allowed the continuation of his imprisonment. The Government also reiterated that the applicant had been suffering from very serious spinal problems since 2000, when he had undergone surgery and been granted Category 2 disability status. Furthermore, the very fact that in deciding about the applicant’s sentence the national courts took into the account the applicant’s medical condition and applied the lowest possible sentence could not be disregarded.", "148. As concerns the alleged lack of social assistance, the Government noted that the Convention did not guarantee such a right.", "149. Finally, the Government submitted that the applicant’s medical records had contained information received from the State Probation Service in Jelgava suggesting that after his release the applicant had been seen walking. According to the Government, the relevant authority had as a result re-examined its previously adopted decision to grant the applicant Category 1 disability status for two years by reducing the term of validity of his certificate to one year. The Government concluded that the applicant had aggravated his medical condition on purpose or had even faked his disability in order to ensure that he received advantageous conditions of detention and certain privileges.", "2. The Court’s assessment", "(a) General principles", "150. The Court reiterates that Article 3 of the Convention cannot be interpreted as laying down a general obligation to release a detainee on health grounds or to transfer him to a public hospital, even if he is suffering from an illness that is particularly difficult to treat. However, this provision does require the State to ensure that prisoners are detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000 ‑ XI; Melnītis v. Latvia, no. 30779/05, § 69, 28 February 2012; and Savičs v. Latvia, no. 17892/03, § 130, 27 November 2012).", "151. Moreover, the Court has considered that where the authorities decide to place and keep a disabled person in continued detention, they should demonstrate special care in guaranteeing such conditions as correspond to the special needs resulting from his disability (see Farbtuhs, cited above, § 56; Jasinskis, cited above § 59; Z.H. v. Hungary, no. 28973/11, § 29, 8 November 2012; and the international law material in paragraphs 78-82 above).", "152. In the above-cited case of Farbtuhs, the Court noted that the prison authorities had permitted family members to stay with the applicant for twenty-four hours at a time and that this took place on a regular basis. In addition to the applicant, who had a physical disability, being cared for by his family, he was assisted during working hours by the medical staff and outside working hours was helped by other inmates on a voluntary basis. The Court expressed its concerns in the following terms (§ 60):", "“The Court doubts the appropriateness of such a solution, leaving as it did the bulk of responsibility for a man with such a severe disability in the hands of unqualified prisoners, even if only for a limited period. It is true that the applicant did not report having suffered any incident or particular difficulty as a result of the impugned situation; he merely stated that the prisoners in question sometimes ‘refused to cooperate’, without mentioning any specific case in which they had refused. However, the anxiety and unease which such a severely disabled person could be expected to feel, knowing that he would receive no professional assistance in the event of an emergency, in themselves raise a serious issue from the standpoint of Article 3 of the Convention.”", "153. The Court has also held that detaining a disabled person in a prison where he could not move around and, in particular, could not leave his cell independently, amounted to degrading treatment (see Vincent v. France, no. 6253/03, § 103, 24 October 2006). Similarly, the Court has found that leaving a person with a serious physical disability to rely on his cellmates for assistance with using the toilet, bathing and getting dressed or undressed, contributed to its finding that the conditions of detention had amounted to degrading treatment (see Engel v. Hungary, no. 46857/06, §§ 27 and 30, 20 May 2010).", "(b) Application of these principles to the present case", "154. The Court observes that the crux of the applicant’s complaint relates to the material conditions of his detention in Valmiera Prison in view of his physical disability and the lack of any organised assistance in that regard. The Court notes that the applicant himself specifically pointed out that his complaint did not relate to his continued detention in view of his state of health (compare and contrast with the above-cited Farbtuhs case).", "155. The Court notes that the applicant’s medical condition is not disputed between the parties. While serving his sentence in Valmiera Prison, the applicant was paraplegic and was confined to a wheelchair. The Court considers that the applicant’s state of health following his release is irrelevant for the purposes of the present complaint under Article 3 of the Convention and will therefore not examine the parties’ submissions in this regard. Nor shall any importance be attached to the Government’s suggestion that the applicant might have faked his physical disability while in detention, since the diagnosis of his medical condition lies within the competence of the domestic authorities. The Court considers that there can be no question over the adequacy of medical assistance in the absence of a timely and accurate diagnosis. It is important to note that when the applicant was placed in detention he could walk; his paraplegia was first recorded in prison and his Category 1 disability was subsequently confirmed by the relevant domestic authority. Had there been any imprecision on their part in establishing an accurate diagnosis of the applicant’s medical condition, or indeed had the domestic authorities subsequently failed to detect any changes in the applicant’s condition, the State would have to bear responsibility for such an omission as it is its obligation to ensure that persons deprived of their liberty receive the requisite medical assistance.", "156. The Court notes that neither parties’ submissions suggest that the applicant while in Valmiera Prison suffered from any conditions, problems or ailments other than his physical disability, as a result of which he was confined to a wheelchair (compare and contrast with the above-cited cases of Mouisel and Farbtuhs, and also with Price v. the United Kingdom, no. 33394/96, § 25, ECHR 2001 ‑ VII; Kupczak v. Poland, no. 2627/09, § 60, 25 January 2011; Turzynski v. Poland (dec.), no. 61254/09, §§ 2 and 37, 17 April 2012; D.G. v. Poland, no. 45705/07, § 143, 12 February 2013; Todorov v. Bulgaria (dec.), no. 8321/11, § 64, 12 February 2013).", "157. First of all, as concerns the material conditions of the applicant’s detention in Valmiera Prison, the Court notes that it is common ground between the parties that he was detained for nearly two-and-a-half years in a regular detention facility, which was not adapted for a wheelchair-bound person such as the applicant. The Government insisted that the applicant had been placed in a special unit for inmates with health problems, yet these facilities do not appear to have had less architectural or technical barriers than the facilities in the ordinary wings of that prison. The Court notes that a ramp had been installed to facilitate the applicant’s access to the outdoor yard. Yet other areas, such as the canteen, toilets, sauna, library, shop, gym, meeting room and telephone room, remained inaccessible for the applicant in a wheelchair, a fact which the Government did not deny. Special arrangements had been put in place to alleviate the hardships of the access ‑ related problems, but only in relation to the canteen and not the other facilities. While it appears that the applicant was not locked up in his cell during daytime and could move around in the living area of his unit, his ability to use any facilities therein was restricted owing to his paraplegia.", "158. In this regard, the Court considers that the accessibility of the sanitation facilities raises a particular concern under Article 3 of the Convention (see, in a more complex context, D.G. v. Poland, cited above, §§ 147 and 150). In the present case, the applicant submitted, and the Government did not deny, that his physical disability had prevented him from being able to access the toilets and sauna. While, according to the Government, the toilets had been adapted to the applicant’s special needs, the Court notes that it can hardly be considered as alleviating his hardship, given that these facilities themselves remained inaccessible without the help of other inmates. Moreover, it appears that the only possibility for the applicant to wash himself had been during the weekly sauna visits, facilities which were also inaccessible to the applicant without the help of others. Nor does it transpire from the case materials that the sauna facilities had been adapted for the applicant’s special needs. The Court considers such a state of affairs unacceptable. It has already found that restricting prisoners’ access to showers once a week did not allow them to wash themselves properly and that this shortcoming had contributed to the cumulative effect of conditions of detention in the Prison Hospital in violation of Article 3 of the Convention (see Čuprakovs v. Latvia, no. 8543/04, §§ 44-45, 18 December 2012). The international standard in this respect currently stands at least at twice a week (see paragraph 83 above), to which the CPT has also invited the Contracting States to adhere [1]. In the present case, the applicant did not have access to a shower at all. The Court considers that weekly sauna visits did not provide him with an adequate opportunity to maintain his personal hygiene, given their inaccessibility and limited availability (contrast with the above-cited Todorov case, where the applicant had daily access to common showers and later had an en suite toilet and shower).", "159. The Court further notes that the applicant’s special needs were further disregarded as no measures were adopted to alleviate the hardship caused by the inaccessibility of the sanitation facilities while meeting his wife for conjugal visits, which under Latvian legislation could last up to forty-eight hours (see Aleksejeva v. Latvia, no. 21780/07, § 28, 3 July 2012). Acknowledging that the Convention does not require the Contracting States to make provisions for such visits (see Epners-Gefners, cited above, § 62), the Court nevertheless notes that they have to ensure that prisoners are detained in conditions which are compatible with respect for human dignity. In exercising their wide margin of appreciation in deciding whether or not to allow conjugal visits, the States have to have due regard to the needs and resources of the community and of individuals ( ibid. ). The Court finds that placing the applicant, who is confined to a wheelchair, in facilities where he cannot properly wash and use the toilet, even if only for a limited period of time, could be hardly considered compatible with respect for his human dignity.", "160. Turning to the second point in its analysis, the Court notes that the applicant, who has a physical disability and is wheelchair-bound, was in need of daily assistance with his mobility around the prison. While the Court recognises that the administration of Valmiera Prison had made certain efforts to lessen his inability to move about in the prison, the fact remains that he had to rely on the help of his cellmate to enter and leave the living area of his unit; he also had to rely on the help of other inmates to access various facilities, such as the toilets, sauna, library, shop, gym, meeting room and telephone room, as they were inaccessible to him in a wheelchair. Although the medical staff visited the applicant in his cell for ordinary medical check-ups, they did not provide any assistance with his daily routine (contrast with the above-cited cases of Turzynski, § 40, and Todorov, § 65).", "161. The Court finds that the applicant had to rely on his fellow inmates to assist him with his daily routine and mobility around the prison, even though they had not been trained nor had the necessary qualifications to provide such assistance. The Government argued that the applicant’s cellmate had voluntarily agreed to assist him in case of necessity. The Court is not persuaded by such an argument and does not consider that the applicant’s special needs were thereby attended to and that the State has complied with its obligations under Article 3 of the Convention in that respect. The Court has already stressed its disapproval of a situation in which the staff of a prison feel relieved of their duty to provide security and care to more vulnerable detainees by making their cellmates responsible for providing them with daily assistance or, if necessary, with first aid (see, mutatis mutandis, Kaprykowski v. Poland, no. 23052/05, § 74, 3 February 2009). It is clear that in the present case the help offered by the applicant’s cellmate did not form part of any organised assistance by the State to ensure that the applicant was detained in conditions compatible with respect for his human dignity. It cannot therefore be considered suitable or sufficient in view of the applicant’s physical disability (see the above-cited cases of Farbtuhs, § 60, and D.G. v. Poland, § 147). While it is true that the Convention does not guarantee as such a right to social assistance, the Court considers that the State’s obligation to ensure adequate conditions of detention includes provision for the special needs of prisoners with a physical disability such as the present applicant (see paragraph 151), and the State cannot merely absolve itself from that obligation by shifting the responsibility to the applicant’s cellmate.", "162. In the light of the foregoing considerations and their cumulative effects, the Court holds that the conditions of the applicant’s detention in view of his physical disability and, in particular, his inability to have access to various prison facilities independently, including the sanitation facilities, and in such a situation the lack of any organised assistance with his mobility around the prison or his daily routine, reached the threshold of severity required to constitute degrading treatment contrary to Article 3 of the Convention. There has, accordingly, been a violation of that provision.", "III. OTHER ALLEGED VIOLATIONS", "163. The applicant also complained that the public prosecutors and domestic courts had subjected him to inhuman and degrading treatment. He also he alleged a violation of Article 5 § 5 of the Convention with no further explanation.", "164. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.", "165. It follows that this part of the application is manifestly ill-founded and must be dismissed in accordance with Article 35 §§ 3 and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "166. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "167. The applicant submitted that the finding of a violation by itself would not be sufficient compensation for the severe deterioration to his health and physical and moral suffering he had been subjected to during his arrest and continued detention. He therefore requested the Court to award him damages for the suffering and distress caused. He was however unable to quantify in financial terms the degree of emotional distress, physical suffering and deterioration of health he had endured. The applicant asked the Court to take into consideration the severity of his grievances when determining the amount of the compensation to award. He left it to the Court to establish the precise amount, suggesting an amount not less than 100,000 Latvian lati (approximately 142,287 euros (EUR)).", "168. The Government contested these claims.", "169. Having regard to the nature of the violations found in the present case and deciding on an equitable basis, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "170. The applicant did not lodge any claim under this head.", "C. Default interest", "171. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "1. The applicant was born in 1985 and lives in Aarhus. He was represented by Mr Tobias Stadarfeld Jensen, a lawyer practising in Aarhus.", "2. The Government were represented by their Agent, Mr Michael Braad, from the Ministry of Foreign Affairs, and their Co-Agent, Mrs Nina Holst ‑ Christensen, from the Ministry of Justice.", "3. In 1999 the applicant was diagnosed with paranoid schizophrenia.", "4. On 28 June 2005 he was convicted under the Penal Code of five incidents of violence against a civil servant acting in his official function and threats of violence. He was sentenced to committal to a psychiatric hospital.", "5. From 2007 to 2011 the applicant was in a high-security psychiatric unit under a so-called “dangerousness decree”. Subsequently, he was treated in an open psychiatric ward, but was moved to a closed ward, called P4, in September 2012.", "6. On 3 January 2013, while in P4, the applicant was strapped to a restraint bed with a belt and wrist and ankle straps (also called a five-point restraint ( fempunktsfiksering ). The case before the Court does not concern that coercive measure.", "7. On 8 February 2013 at 1.15 p.m. the applicant was once again strapped to a restraint bed with a belt and wrist and ankle straps, and he was restrained until 9 February 2013 at 12.05 p.m., thus for twenty-two hours and fifty minutes. The case before the Court concerns this coercive measure.", "8. The applicant appealed to the Psychiatric Patients ’ Complaints Board ( det Psykiatriske Patientklagenævn ) in respect of both incidents when he had been restrained, and the board heard him on 19 March 2013.", "9. H.H., the chief physician who had decided on the measures, had made a brief written statement on15 March 2013. Owing to illness, she could not attend the meeting before the board on 19 March 2013.", "10. On 21 March 2013 the Psychiatric Patients ’ Complaints Board, basing itself on the applicant ’ s written complaint and oral statement as well as H.H. ’ s written statement, found that both measures had been unlawful. It stated as follows:", "“The Psychiatric Patients ’ Complaints Board has reviewed the case and the statements made at the meeting. [The board] has found that the conditions for physical restraint with a belt and straps were not fulfilled.", "...", "Concerning the [use of] physical restraint on 8 February 2013, the board has taken into account that you [the applicant] did not want to participate in a medical consultation with the doctor and that you have been described as very angry.", "Based on the above, the board has found that it has not been documented that you exposed yourself or others to an immediate risk of harm to body or health [ legeme eller helbred ]”", "11. On 7 November 2013, referring to the decision of the Psychiatric Patients ’ Complaints Board, the applicant requested that the State Administration award him compensation for non-pecuniary damage. Additionally, he claimed that there had been a violation of Article 3 of the Convention.", "12. On 5 December 2013 the State Administration dismissed the applicant ’ s claim, finding that no violation of Article 3 of the Convention had occurred.", "13. On 13 June 2014 the applicant lodged a complaint against H.H. with the Health Authority ( Sundhedsstyrelsen ) in respect of, inter alia, the measures of physical restraint at issue.", "14. On 30 August 2014 H.H. made the following written statement to the Health Authority:", "“While [the applicant] was in the psychiatric ward, restraint [measures were] used three times. ...", "The second time that a restraint measure was used was on 8 February 2013, when [the applicant] had a lot of pent-up anger because [I] went against him because I insisted on telling him that he could not go on day release when he was so angry. I approached him three times; his anger remained the same, so I decide to use a restraint measure before anyone got hurt. That decision was declared unlawful by the Patients ’ Complaints Board.", "The third time was when I decided to use a restraint measure in order to raise [the applicant ’ s] clozapine treatment to an efficient level. The board accepted unanimously [that I was justified in doing so]. As a forensic psychiatrist, I must, of course, pursue the optimal treatment; however, I must also consider civil rights and due process considerations in my treatment, and I must make sure that I minimise the risk of recidivism. Reoffending will always prolong the time period during which a patient is treated in the forensic psychiatric system, and that is not to the advantage of either the patient or any of the victims.”", "15. On 19 December 2014 the Health Authority sent a letter to H.H., concluding as follows:", "“... the Health Authority does not find grounds for deciding that you acted with a lack of care or conscientiousness.”", "16. In the meantime, on 20 June 2014 the applicant had brought an action before the City Court ( Retten i Roskilde ), claiming that the State Administration should acknowledge having violated his rights under Article 3 of the Convention and therefore pay him 50,000 Danish Kroner (DKK) or a lower amount determined by the court.", "17. The applicant ’ s daily records were submitted to the City Court. In so far as relevant, they included the following.", "18. On 7 February 2013 at 7.38 p.m. (the evening before the measure of physical restraint at issue was applied) Doctor S.S. wrote:", "“This evening, [the applicant] has been very frustrated and has expressed his anger and indignation about the treatment, in front of the group. This has led to other patients feeling insecure and the staff feeling abused ...”", "On 7 February 2013 at 7.56 p.m. M.K., an educator ( pædagog ), wrote:", "“[Description of what had happened between 5 and 6 p.m.] ... [the applicant] came into the dining room as the patient from room 6 sat talking loudly about his frustration about everything. [The applicant] made some negative comments. I asked him to stop, [but] he did not comply and continued [by saying] ‘ We need to do something about her [H.H.] ’. I informed him that this could be understood as a threat and [the applicant] replied ‘ Go and write a lie. ’ ...”", "On 7 February 2013 at 9.34 p.m. M.H.L., a social and healthcare assistant, wrote:", "“From the beginning of the shift [the applicant] (and the other patient from his room) seemed negative and ready to argue about restrictions in the ward. My colleague heard [the applicant] make remarks about H.H., the chief physician, which could be understood as threats against her. See the note from 7.56 p.m. H.H. was informed and she subsequently got in touch with the doctor on call, S.S., who had a conversation with [the applicant] afterwards, in the presence of my colleague. See the doctor ’ s note.", "After the conversation with the doctor [the applicant] seemed to be calm and quiet, and he made no further comments about the doctor or the staff or [demonstrated] frustration/anger towards them. ...”", "19. The following day, on 8 February 2013 at 1.15 p.m. H.H. wrote:", "“At the start of today, last night ’ s situation was discussed among the staff. It was decided that it was not safe for [the applicant] to be allowed to go out on his own [only] accompanied by one of the staff when he was so angry. It was decided that he should be told about this and that his [medication] should be increased.", "[The applicant] was asked to go into the consultation room. He did not want to sit down. [Still] standing, he leaned over the table and said that he did not want to talk to us. [The applicant] was very white in the face, his mouth was set in a straight line, and one sensed a lot of pent-up anger. [The applicant] walked out and I just managed to tell him that his [permission to go on] day release had been revoked.", "We went after him with the aim of entering into a dialogue ( vi går efter mhp. at få en dialog i gang ) and [the applicant] said that we should not put him under pressure. This happened again at 11.30 a.m., and when we tried again later [the applicant] said that he did not want to talk to us and he did not want to be put under pressure.", "After one and a half hours [the applicant] was still extremely angry, [and] we decided to summon the staff from Enggården, as [he] was considered to be dangerous to those around him. He was very angry, it was not possible to correct him, and the slightest approach seemed to provoke him severely.", "Hence, it was decided that [the applicant] should be physically restrained with a belt, because of his dangerousness. He came to the belt room voluntarily and lay down on his own. ... I informed him that his behaviour made us afraid and that I had to increase his medication. ...”.", "20. At 3.30 p.m. the applicant ’ s guardian [ bistandsværge ] was informed that the applicant had been restrained with a belt.", "21. From the daily records it appears that throughout the period when the applicant was restrained there was always a social and healthcare assistant present with him. They regularly entered their observations in the daily records.", "For example, on 8 February 2013 at 9.11 p.m. E.F., a carer, wrote that the applicant felt that he was being unfairly treated, but the tone of his voice was calm and quiet, and on 9 February 2013 at 6 a.m. M.O., another carer, wrote that the evening had been quiet and the applicant had slept throughout the night.", "22. After the belt restraint measure had been implemented at 1.15 p.m., doctors checked on the applicant four times.", "23. During the first check on the applicant at 2.45 p.m., H.H. tried to engage him in a dialogue. She decided that the applicant still had a great deal of pent-up anger and appeared to have some latent aggression.", "24. There was a second check at 6.55 p.m., carried out by Doctor B.E., who noted that the applicant still did not comprehend why he had been restrained. He appeared to be more “quiet” and “talkative”, and for that reason B.E. agreed to release one foot strap and to also release the applicant in connection with toilet visits and personal hygiene.", "25. The third check on the applicant was at 10.46 p.m., and was carried out by B.E., who noted that the applicant had made progress but he was still potentially dangerous to other people because of his instinctive anger.", "26. The following day, on 9 February 2013 at 10.30 a.m. B.E. checked on the applicant again. As the applicant was cooperative and had complied with all requests and instructions from the staff, B.E. assessed that it was safe to release him from the restraint bed. B.E. subsequently conferred with H.H., and it was decided that the applicant should be released at 12.05 p.m.", "27. Before the City Court, the Medico-Legal Council ( Retslægerådet ) was consulted. On 2 June 2016 it stated the following:", "“... on the basis of the documents available, including the statement of 30 August 2014 from H.H., the chief physician, the Medico-Legal Council [observes] that since 1999 [the applicant] has been suffering from schizophrenia characterised by delusions. Because of violence in 2005, he was sentenced to placement in a psychiatric ward. In 2013 the High Court upheld the measure. From 2007 to 2011 [the applicant] was placed in the high-security psychiatric unit ... under a dangerousness decree. Subsequently, he was treated in an open psychiatric ward, but owing to [his] irritability and threatening behaviour, he was moved to a closed ward in September 2012. Afterwards, despite treatment with a potent anti-psychotic drug, [his] condition was described as fluctuating, with [the applicant having] a tendency to be aggressive [and] paranoid, and to overrate himself in an unrealistic manner. [The applicant had] no understanding of [his] illness, and his ability to have contact [with people] was compromised. ... On the evening of 7 February 2013 [the applicant] made threatening remarks about the chief physician responsible for the treatment. When she talked to him on 8 February 2013 he was completely dismissive, would not sit down, would not answer, and was white-faced and kept his mouth tightly shut, and he seemed to be affected by pent-up anger. Conversation with him was unsuccessful and, apart from being aggressive, he displayed a lack of logic, owing to [his] paranoid misinterpretation of hostility from the chief physician. He was considered to be dangerous, and at 1 p.m. the decision about physical restraints was made. Once he had the belt strapped around him he appeared to be very vocal and angry at first glance, but after a few hours he calmed down more, and consequently a foot strap was released and toilet visits were allowed. However, at around 11 p.m. he was still considered to be full of pent-up anger and potentially dangerous. At 12 noon on the following day he was released from the belt. The Medico-Legal Council must thus answer the given questions [as follows]:", "Question 1:", "The Medico-Legal Council is asked to give a statement concerning the physical restraints applied to [the applicant] in the period from 3 January 2013 at 7.08 p.m. to 5 January 2013 at 3.15 p.m., and from 8 February 2013 at 1.15 p.m. to 9 February 2013 at 10.30 a.m. In this connection, the Medico-Legal Council is asked to assess whether the material conditions for physical restraints were present in relation to each incident.", "The Medico-Legal Council finds that the conditions for physical restraints were present in the given periods, as it was necessary to avoid [the applicant] subjecting others to an immediate risk of harm to body or health.", "Question 2:", "For each of the periods in question, the Medico-Legal Council is asked to state whether a sufficient assessment of the continued presence of the conditions for physical restraints was made, including whether [the applicant] was assessed with the required frequency.", "The Medico-Legal Council finds that during the periods when [the applicant] was restrained, medical assessments were made with the required frequency to assess if the conditions for the restraint continued to be present.", "Question 3:", "For each of the periods in question, the Medico-Legal Council is also asked to state whether the assessment of the continued presence of the conditions for physical restraints made by the chief physician could give grounds for the chief physician being blamed for reckless treatment, or if the responsible doctor was justified in assessing that the conditions for physical restraints were present in the above ‑ mentioned periods.", "The Medico-Legal Council finds that the chief physician ’ s assessment of the conditions for physical restraints was correct, and thus that the chief physician ’ s assessment was justified.", "Question 4:", "For each of the periods in question, the Medico-Legal Council is asked to state whether the case gives grounds for any other comments from the Medico-Legal Council and, if so, which?", "No.”", "28. Before the City Court, the applicant, the chief physician H.H., and two social and healthcare assistants were heard.", "29. The applicant stated, among other things:", "“... in general, there were major problems with H.H. She was keen on using power and, almost from day one, she took away my day release, and instead of staying in the ward for a month I ended up staying one and a half years. There was to be a meeting between me and H.H. ..., [who] made me anxious ... She informed me that my [permission to go on] day release had been revoked. I went back, sat down, and continued eating. I was asked to come back to the meeting, but I refused. I wanted to make a call from a phone box. I wanted to talk to M. and my mother. Suddenly, ten people were outside and I was told that I was going to be restrained by a belt, which happened subsequently. The physical restraint was [employed] as usual. I knew that I should stay calm and quiet and then I would get justice later. I did not utter any threats ...”", "30. H.H., the chief physician, explained that she had worked in psychiatry since 1983. In November 2012 she had become the chief physician at P4 (the closed ward where the applicant had been placed).", "“On 7 February 2013, the previous evening, the staff had called me on the phone. This was because [the applicant] had once again been very angry. He had made threats against me personally and had been very abrasive towards the staff. During patient rounds the following day, it was discussed whether [he] should be allowed to go on day release outside the ward. It was decided that he should not be granted permission to go on day release, as he had so much anger inside him. As the chief physician responsible, I had to tell [the applicant] that he would not go on day release. [The applicant] did not want to speak to me, but I had to inform him that there would be no day release [for him]. [The applicant] became extremely angry. He seemed to have a lot of pent-up anger and seemed aggressive. [The applicant] was in his room and I left the room to give him a time-out. This was in order to avoid my presence increasing his aggression. However, his aggression and tension was building up to such an extent that I did not dare to [leave] him [un]restrained by a belt. I feared that [everything] would go terribly wrong and escalate into violence, and that someone would get hurt. I decided that there was a significant risk of [the applicant] resorting to violence, and there was also [the applicant] himself to consider, so that there would not be a risk of him ending up assaulting someone else. The threats against me were ‘ We have to do something about her ’. [The applicant] had said this and the staff had perceived this to be threats against me. I knew that [the applicant] did not like me. [He] had a lot of anger inside him which was directed against me, and the threat might mean that there was a risk of me being assaulted. I already knew the details of the course of [the applicant ’ s] illness and treatment over the years, and I knew that [he] had previously assaulted staff and other patients in psychiatric wards, which was, in part, what he had been sentenced for. Among other things, there had been an aggravated assault on a carer. Thus, I knew that [the applicant] might react violently if he was feeling bad.", "I have since decided that in the period January to February [2013] [the applicant] was probably not correctly medicated. It is likely that there was a failure in the medication at the beginning of 2013. In March 2013 I applied for permission to increase [his] dosage, which was given. It is probable that [the applicant] did not receive sufficient medical treatment until the summer of 2013. It was also problematic that there was some medicine that he did not tolerate, and that he might not have been taking everything. From the summer of 2013 onwards and in the following months there was a decisive improvement, after the medication had been increased.", "I was ill on the day when the Patients ’ Complaints Board dealt with [the applicant ’ s] complaint. Hence, I did not come to the meeting of the Patients ’ Complaints Board. To assist the board with that procedure, I had made a statement, although it was a very brief statement. I heard from a nurse who was present [at the meeting] that [the person] who attended the meeting with the board on behalf of the psychiatric hospital did not say anything, so [the applicant ’ s] version of the events was unchallenged. If I had been present, I would have had an opportunity to elaborate on my rather brief statement.", "I no longer work at P4. I am now employed at ... Being presented with [the applicant ’ s] statement about [me] being power-hungry, I would say that I am very aware of the power given to me as the treating chief physician. I have always tried to manage this in a proper way.", "A major characteristic of the history of [the applicant ’ s] illness has been his difficulty to relate to being ill and needing help ... In general, [the applicant] was very angry at the system. ... [for continued physical restraint, the issue of whether the person in question has insight into the course of the events ] is not [decisive, what is decisive is the danger]. The danger must have ended before the restraints are released. It was not the first time in the course of [the applicant ’ s] illness that people had been very afraid of him and he had had no understanding of it. It is also all right to be angry, and that, in itself, cannot lead to physical restraint. I also understand that one can be angry about the situation. However, when the anger is of such a nature and extent that there is a fear that someone will be hurt, you must physically restrain a patient. Before this happens, there is a time when you try to talk to the person in question and try to avert the anger. Physical restraint is a last resort in order to calm the situation, and only if no other measure is possible. It is also all right that a patient and a doctor have different opinions on a course of events. This is not, in itself, a reason for continued restraint. ...", "On 8 February 2013 when I was at work there was an immediate risk to others, and that was the reason for deciding to use physical restraint. Of course, I also had [the applicant] himself in mind and the fact that he should be prevented from using violence against other people. Physical restraint is not a treatment measure. Physical restraint only happens when you cannot use other measures and when you are afraid that something serious will happen if you do not use it. [The applicant ’ s] behaviour was seriously aggressive, threatening and worrying. It was his body language and attitude. When [the applicant] was so angry, the wrong remark might easily have led to [him] using physical violence. This is also the reason why I chose to walk away as a kind of time-out when I had informed him that he would not go on day release. When I returned to him one and a half hours later his fierceness and aggression had not changed, and the smallest remark could result in the risk of physical violence. I am also entirely sure that [the applicant] was offered a sedative before being physically restrained with the belt.”", "31. M.H.L., a social and healthcare assistant, explained:", "“... I was also working on 7 and 8 February 2013. I remember that [the applicant] was very angry with the chief physician. He believed that everything was her fault. He made remarks about her being an idiot and [said] that she should have ‘ a bullet through her head ’. I also heard him say directly ‘ We have to do something about her ’. I wrote the remarks down in the medical record and also contacted the chief physician. [The applicant] seemed very convinced when he said that something should be done about her. It would usually be like this when he had those thoughts, and then he would be completely convinced that this was the way it should be. The decision about physical restraint itself was made by the doctor. Other colleagues apart from myself heard [the applicant] say on 7 and 8 February 2013 that the chief physician should have a bullet through her head and that someone should do something about her. I interpreted this as meaning that [the applicant] wanted to get at the chief physician, not that she should be fired.”", "32. The other social and healthcare assistant who testified before the City Court gave an explanation about the incident on 3 January 2013.", "33. On 24 March 2017 the City Court found against the applicant. It stated as follows:", "“It appears from section 14(2)( i ) of the Act on the Use of Coercion in Psychiatry – see the wording of Act no. 1729 of 2 December 2010 applicable at the time of the decision made by the Patients ’ Complaints Board on 21 March 2013 – that physical restraint can only be used to the extent necessary in order to prevent a patient from exposing himself or others to an immediate risk of harm to body or health.", "In accordance with section 4(2) of the Act, the use of coercion must be proportionate to the purpose sought [ through the use of that coercion]. If less intrusive measures are sufficient, they must be used.", "It appears from the statement made to the Health Authority by H.H., the chief physician, on 30 August 2014 that ... [see paragraph 14 above]", "It further appears from the statement that on 8 February 2013 [the applicant] had a lot of pent-up anger because the chief physician had gone against him and insisted on telling him that he could not go on day release while he was so angry.", "It appears from the letter of 19 December 2014 from the Health Authority that the authority stated that there was no basis for assuming that the chief physician had acted negligently or with a lack of conscientiousness.", "...", "It appears from the medical records of the evening of 7 February 2013, among other things, that [the applicant] was described as very frustrated and he expressed his anger and indignation about the treatment in front of the group. The patients felt insecure and the staff felt abused. Further, it appears that later on [the applicant] said ‘ We have to do something about her ’.", "It appears from the medical records of 8 February 2013 that he did not want to sit down in the interview room. ‘ His face was white, his mouth was set in a straight line, and one sensed a lot of pent-up anger ’. Dialogue was not possible. After one and a half hours he was still very angry and unable to modify his behaviour. As regards the applicant ’ s mental state, he was assessed as ‘ having mental capacity, objectively speaking. [He was] alert and awake, paranoid with an inverted [sense of] logic, very angry, with latent aggression, and threatening. ’", "It further appears from the medical records that he continued to be very angry and vocal while he was restrained by the belt. At 2.45 p.m. it was noted that ‘ a lot of pent-up anger and feelings of injustice appeared, [the applicant] seemed to be seriously deteriorating and had latent aggression ’. The foot strap was released after a few hours and visits to the toilet were permitted. At around 11.00 p.m. it was decided that he was still potentially dangerous to other people and [still] had pent-up anger. After a conversation with the doctor on 9 February 2013 he was assessed as being calm and cooperative, and he was freed on the same day at 12.05 p.m.", "...", "Concerning the course of the events leading up to the use of physical restraint on 7 February 2013, the witness [H.H.] stated, among other things, that there had been threats against her personally from [the applicant] and he had been very abusive towards the staff. [The applicant] was seriously angry; he seemed to have a lot of pent-up anger and was very aggressive. His aggression and tension were of a nature which caused the witness to fear that [everything] would go terribly wrong and escalate into violence and that someone would get hurt. The witness decided that there was a significant risk of [the applicant] resorting to violence. The witness stated that she already had a detailed knowledge of the course of [the applicant ’ s] illness and treatment over the years, and she knew that [he] had previously assaulted staff and other patients in psychiatric wards, which was, in part, what he had been sentenced for. Among other things, there had been an aggravated assault on a carer. Thus, she knew that [the applicant] might react violently if he was feeling bad.", "...", "Likewise, on 8 February 2013 there was, according to H.H., the chief physician, a course of events leading up to the physical restraint, during which time she tried to withdraw in order not to increase [the applicant ’ s] aggression.", "Furthermore, on the basis of the medical records [and] the statements of M.H.L. and the chief physician H.H. about [the applicant ’ s] behaviour in the course of the events leading up to and during the two instances of physical restraint, together with the Medico-Legal Council ’ s statement, the court considers that the instances of physical restraint and the duration [of those instances] were necessary in order to avoid [the applicant] subjecting others to an immediate risk of [harm to] body or health.", "Consequently, [the State Administration ] has documented that the conditions under section 14(2)( i ) of Act no. 1729 of 2 December 2010 on [the Use of] Coercion in Psychiatry were fulfilled for both the instance of physical restraint from 3 January 2013 to 5 January 2013, and the instance of physical restraint from 8 February 2013 to 9 February 2013, and likewise it has been documented that measures less intrusive than physical restraint were not possible, see the principle of the least intrusive measure in section 4 of the Act.”", "34. The applicant appealed against the judgment, but only in respect of the instance of restraint on 8 February 2013.", "35. By a judgment of 9 November 2017 the High Court of Eastern Denmark ( Østre landsret ) approved the measure whereby the applicant had been restrained, finding that there were no reasons to disregard the chief physician ’ s assessment at the time of the incident, that it had been necessary to strap the applicant to a restraint bed in order to avoid an imminent risk to others, and that while he had been restrained the staff had assessed with sufficient frequency whether the conditions for keeping him restrained were still present. In particular, the court stated:", "“ ... Based on the information before it, including the statement from the Medico ‑ Legal Council, the High Court finds no reasons to overrule the chief physician ’ s assessment, according to which it was necessary to physically restrain [the applicant] to prevent him from subjecting other people to an immediate risk of harm to body or health. Based on the same, the High Court finds that while [the applicant] was physically restrained, medical evaluations were made with sufficient frequency to assess whether the conditions for the measure were still present. Hence, the physical restraint of [the applicant] with a belt as well as wrist and foot straps from 8 February 2013 at 1.15 p.m. to 9 February 2013 at 10.30 a.m. was legal under section 14 of the Act on the Use of Coercion in Psychiatry.”", "36. Leave to appeal to the Supreme Court ( Højesteret ) was refused on 15 March 2018.", "37. In the meantime, on 12 April 2016 the High Court had found that the applicant ’ s sentence could be changed to treatment at a psychiatric hospital (instead of committal), with the possibility of hospitalisation if the chief physician made a decision in this regard.", "38. On 10 December 2018 the High Court revoked the applicant ’ s sentence." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "39. The relevant provisions regulating the use of compulsion in psychiatry are set out in the Act on the Use of Coercion in Psychiatry ( Lov om anvendelse af tvang i psykiatrien ), hereafter “the Mental Health Act” ( Psykiatriloven ). At the relevant time, section 4 provided for the overall framework, and read:", "Section 4", "“1. Compulsion must not be used until everything possible has been done to obtain the patient ’ s voluntary participation. When conditions allow for this, the patient shall have an appropriate reflection period.", "2. The use of compulsion shall be proportionate to what is sought to be achieved by [the use of compulsion]. If less restrictive measures are sufficient, these must be used.", "3. Compulsion shall be used as sparingly as possible and with maximum consideration for the patient, so that there is no unnecessary violation or inconvenience.", "4. Compulsion must not be used to a greater extent than is necessary to achieve the purpose which is sought.", "5. After the cessation of any compulsory measure, the patient shall be offered one or more consultations. The Danish Health Authority is authorised to determine rules in this regard.”", "40. The preparatory notes to section 4 ( Betænkning no. 1109/1987) set out:", "“ To ensure that compulsion is not used until all means of obtaining the patient ’ s consent have been exhausted, section 4(1) provides that the patient ’ s consent shall be sought and that, apart from in acute situations, the patient shall be given an appropriate reflection period in order to take a position on this issue. This may, inter alia, entail encouraging the patient: to let himself be admitted voluntarily; to voluntarily submit to treatment; or to voluntarily refrain from showing a specific type of behaviour.", "If encouraging the patient to participate voluntarily is unsuccessful and the use of compulsion is considered – provided that the conditions for [the use of compulsion] are present – ‘ the principle of the least intrusive measure ’ applies, which shall be observed in connection with any use of compulsion. This specific formulation of the principle of proportionality would apply without any explicit provisions in this regard, but the [drafting] committee, by codifying the rules [which provide] that compulsion must not go beyond the scope of the purpose [sought], and that compulsion in itself must be proportionate to what is sought to be achieved by the [use of] compulsion, wished to underline the importance of compliance with this principle, so that the use of compulsion under this Act is limited to what is strictly necessary. Reference is made to section 4(2) to (4).", "In contrast to the above, the committee considered it superfluous to codify [provisions setting out] that the use of compulsion and force must not be used to punish patients, just as degrading and humiliating treatment is prohibited. When compulsion must be used as sparingly as possible and without causing unnecessary violation or inconvenience, this means that punitive measures and degrading treatment are all the more prohibited, see section 4(3). Patients have a right to be treated equally as fellow human beings, and with all the consideration that their mental illness also requires.”", "41. More detailed requirements for the use of restraint are set out in sections 14 to 16 of the Mental Health Act:", "Section 14", "“1. Only belt[s], wrist and ankle straps and hand control mittens shall be used as measures of compulsory restraint.", "2. Compulsory restraint must only be used to the extent that it is necessary to prevent a patient:", "i ) from exposing himself or others to an imminent risk of harm to body or health,", "...”", "Section 15", "“1. Decisions to use compulsory restraint must be made by a doctor after [he or she] has checked on the patient.", "2. A decision on whether to use wrist or ankle straps in addition to a belt shall, however, be made by the chief physician.", "3. If, in the event of a situation covered by section 14(2)( i ), it would be unsafe to await the doctor ’ s examination, on account of the patient ’ s own safety or the safety of others, the healthcare staff may decide on their own to restrain the patient in question. The doctor shall then be summoned immediately and make a decision as regards the use of compulsory restraint by a belt.”", "Section 16", "“A patient who is restrained by a belt shall have somebody keeping a constant watch [over him or her].”", "42. The preparatory notes to section 14 (Bill L76, submitted on 26 October 1988) set out:", "“Section 14(1) provides an exhaustive list of the measures that are allowed for compulsory restraint when the conditions of subsection 2 are met. No other compulsory measures – other than belt[s], wrist and ankle straps and hand control mittens – may be used.", "If, on the grounds mentioned in section 14(2), it is decided that it is necessary to use a belt made out of leather or fabric, the procedure under section 15 involving prior instructions [from a doctor] shall be followed in every case. This applies to all patients who are admitted to a psychiatric ward ...", "Section 14(2) provides for the substantive circumstances under which compulsory measures may be used.", "Subsection 2( i ) [covers] the most serious cases of imminent risk of harm to body or health ... [and] the largest group of protected persons is provided for here. The rule covers not only restraints used with a view to protecting fellow patients, but also [those used] to protect staff, visitors and all other people who frequent the ward, as well as the patient himself or herself. The rule thus provides the legal basis for intervention in cases of self-destructive behaviour.", "The criterion [for the use of restraint] is danger. For a danger to be considered imminent, it must be specific, present and demonstrable. Danger manifesting itself in destructive actions is not a prerequisite for intervention.”", "43. The preparatory notes to section 14 ( Betænkning no. 1109/1987) set out, inter alia :", "“...", "The criterion is danger. For a danger to be considered imminent, it must be specific, present and demonstrable. However, a latent danger that may manifest itself under certain conditions or circumstances that may occur later will not suffice.”", "44. Under the Mental Health Act, the Danish Health Ministry adopted supplementary rules about compulsory restraint in Act no. 1338 of 2 December 2010 on the use of other kinds of compulsion other than deprivation of liberty in psychiatric wards, such as:", "Section 19", "“...", "3. Prior to the specific use of compulsory restraint, there must be instructions [from a doctor] after the doctor has checked on the patient.", "4. It is a prerequisite for the instructions [from the doctor] that the doctor, on the basis of the patient ’ s present condition, has decided that compulsory restraint is necessary and that the use of other measures, for example increased supervision, has proved to be insufficient or impossible as a consequence of the patient ’ s condition.", "5. A decision on whether wrist or foot straps shall be used in addition to a belt shall be made by the chief physician. In the absence of the chief physician, the decision can be made by another doctor. In such cases, the chief physician shall subsequently review the decision as soon as possible.", "...”", "Section 21", "“1. A patient who is restrained by a belt shall have somebody keeping a constant watch [over him or her].", "2. [A person] keeping a constant watch is a nurse, a carer, or some other qualified staff member put in charge of the situation who does not simultaneously have other work tasks other than caring for the patient or patients restrained by a belt.", "3. The supervision shall be carried out with attention to the patient ’ s wishes and with respect for his or her dignity and self-esteem.", "4. The patient shall have a right to a certain degree of private life, when this is not incompatible with the patient ’ s safety.”", "Section 22", "“...", "4. If, in the case of compulsory restraint, mittens, [or] wrist or foot straps are used, in addition to a belt, the assessments under subsection 1-3 must include a separate assessment of the continued use of these coercive measures.", "...", "9. However, it is always up to the nursing staff to put an end to [the use of] coercion when there is no longer any need to maintain it.”", "45. Various provisions in the Mental Health Act concern the registration and supervision of compulsory restraint:", "Section 20", "“1. Information on any use of compulsion, see sections ... 14 to 17 a ..., shall be noted in the ward ’ s record on [the use of] compulsion, [and] the specific characteristics [of the intervention] and the reason for the intervention shall be indicated. This applies to all instructions under section 18.", "2. The Minister of the Interior and Health determines the specific rules on records on [the use of] compulsion, as well as the registration and reporting of [the use of] compulsion to the hospital authority and the Danish Health Authority. In that connection, the Minister of the Interior and Health may determine that the reports shall contain information about the patient ’ s identity.", "... ”", "Section 21", "“1. The chief physician is continuously responsible for ... compulsory restraint ... not being applied to a greater extent than is necessary.", "...", "4. As long as a compulsory restraint is continued, the medical assessment of the continued use of the compulsory restraint shall be reviewed as often as the conditions allow, but at least four times every 24 hours, which should be evenly spread out, after the decision about the use of the compulsory restraint has been made.", "...”", "46. The requirements for registering the use of a restraint measure are elaborated on in administrative practice note no. 9713 of 20 December 2011 on the completion of records on the use of compulsion (the registration of the use of compulsion in the psychiatric system, including the registration of measures in respect of minors) and the registration of the use of discharge agreements/coordination plans; they state, among other things:", "“2.3. Restraint and the use of straps", "The date and time of the initiation and cessation [of a measure of restraint] must be entered.", "The cessation of restraint by a belt is understood [to mean] that the belt has been released for a longer time than just a short while. If the belt is temporarily released for up to one hour, this must not be registered.", "The name of the prescribing doctor and the staff involved must be entered in the records.", "As regards the supplementary use of straps, this compulsory measure shall be recorded [taking into account the relevant period of time] as a whole, with the start time indicated as the time when the first strap is fastened, and the end time being when the last strap has been released.", "Where straps are employed in the use of compulsion, the name of the chief physician shall be entered [in the records]. Simultaneous restraint by a belt and the use of straps shall be entered in the same form, as the use of straps is regarded as a supplement to the restraint.", "A reason, as specified in section 14 of the Danish Mental Health Act, must be entered in respect of any compulsory measure.", "If the decision about the use of straps is made by another doctor in the absence of the chief physician, the date of the chief physician ’ s subsequent position [on the use of straps] must be entered.", "In connection with the medical assessment four times a day of the continuation of the compulsory restraint, the time [of the assessment] and the doctor ’ s initials shall be entered. The assessment shall be noted in the daily records.”", "47. Various provisions of the Mental Health Act concern the complaints procedure for and judicial review of compulsory restraint.", "Section 34", "“1. As part of every State Administration, a Psychiatric Patients ’ Complaints Board shall be established, consisting of the State Administration ’ s Director as the chairman (see, however, subsection 2) and two board members. The Minister of the Interior and Health appoints a number of members upon recommendations from the Danish Medical Association and the Danish Disabled People ’ s Organisations. The Minister of the Interior and Health also appoints deputy members. Appointments last a period of four years, and [individuals may be] reappointed.", "2. The Director of the State Administration may authorise employees of the State Administration to act as Chairman of the [Psychiatric Patients ’ Complaints] Board.", "3. The State Administration performs the secretarial tasks of the Psychiatric Patients ’ Complaints Board and bears the operating costs of the board, including [the costs of] remunerating the members of the board.”", "Section 35", "“Hospital authorities shall, at the request of a patient or patient counsellor, submit complaints about compulsory admissions, compulsory detention, retransfers, compulsory treatment, compulsory follow-ups after discharge under section 13 d, compulsory restraint, the use of physical force, protective restraint, the use of personal alarm and tracking systems and specific door locks, personal shielding lasting more than 24 consecutive hours, the locking of doors in the ward, compulsory restraint while a person is ambulatory, and the locking of the patient ’ s room in the high-security psychiatric unit (HDU) ( Sikringsanstalten ) under the Zealand region ’ s forensic psychiatric ward, to the Psychiatric Patients ’ Complaints Board at the State Administration.”", "Section 36", "“1. When a case like those mentioned in section 35 is brought before the Psychiatric Patients ’ Complaints Board by the State Administration, the hospital authorities shall forward the documents relating to the case, including a written record of the compulsory measure and a statement from the chief physician. Furthermore, the board shall itself determine the facts of the case and decide on whether to obtain additional statements and so on, and the board may visit the psychiatric ward of the patient in question.", "2. The patient and the patient counsellor have a right to orally present the case to the board. In exceptional cases, where the patient ’ s health or the case proceedings before the board decisively warrant this, the board may decide that the patient should be fully or partially excluded from participating in the proceedings.", "...", "4. The Minister for Health and Affairs relating to the Elderly determines the rules of procedure for the Psychiatric Patients ’ Complaints Boards at the State Administration.”", "Section 37", "“The Psychiatric Patients ’ Complaints Board at the State Administration shall, at the request of the patient or the patient counsellor, bring its decisions as regards ... compulsory restraint ... before the courts, pursuant to the rules of the Danish Administration of Justice Act chapter 43 a.", "...”", "48. The rules on the tasks of the Medico-Legal Council and its composition appear in Act no. 60 of 25 March 1961.", "Section 1", "“The task of the Medico-Legal Council is to make medico-forensic and pharmaceutical assessments for public authorities for the purposes of cases concerning the legal circumstances of individuals. The Minister of Justice may lay down detailed rules determining the authorities that can ask the council to make an assessment and the cases in which such assessments can be requested.”", "Section 2", "“The council is comprised of up to 12 physicians. The council has two divisions, one of which focuses on forensic psychiatric issues, and the other [which focuses] on all other medico-forensic issues. ...”", "49. The Government have provided the following statistical overview of the use of physical restraint in Denmark.", "50. Table 1 shows the prevalence of the use of restraint by a belt and the duration of instances of restraint for each year for the period from 2010 to 2018. The numbers indicate the number of times restraint by a belt was used in the psychiatric system. If a psychiatric patient was restrained by a belt several times in one year, every instance of restraint by a belt is indicated as a separate incident. The table covers only persons who were nineteen years or older at the time when the restraint by a belt was initiated.", "2010", "2011", "2012", "2013", "2014", "2015", "2016", "2017", "2018", "0-3 hours", "945", "849", "1,039", "974", "735", "879", "840", "899", "815", "3-12 hours", "1,507", "1,497", "1,426", "1,554", "1,411", "1,401", "1,300", "1,261", "1,036", "12-24 hours", "958", "1,061", "1,098", "1,060", "1,016", "1,024", "975", "809", "788", "24-48 hours", "551", "657", "712", "743", "672", "533", "496", "344", "391", "48+ hours", "545", "639", "756", "844", "775", "530", "491", "439", "444", "Total", "4,508", "4,704", "5,035", "5,182", "4.617", "4.379", "4.137", "3,756", "3,478", "Source: The Danish Health Data Authority", "51. Table 2 shows the development for the period 2010 to 2018 in the number of persons admitted to psychiatric hospitals and the number of psychiatric admissions. “Persons admitted” covers the number of persons who were admitted to a psychiatric hospital once or several times in a given year. “Admissions” covers each single period of hospitalisation, as the same person might have been hospitalised several times in one year.", "2010", "2011", "2012", "2013", "2014", "2015", "2016", "2017", "2018", "Persons admitted", "23,029", "23,224", "23,749", "24,191", "24,224", "23,875", "23,213", "23,658", "24,052", "Admissions", "44,984", "47,017", "47,909", "49,000", "48,968", "48,485", "46,811", "48,692", "49,304", "Source: The Danish Health Data Authority", "52. As indicated in tables 1 and 2 above, in 2013 there were 49,000 admissions to psychiatric hospitals and 5,182 instances of restraint by a belt. Thus, on average, in 2013 restraint by a belt was used in approximately 10.6% of all hospitalisation cases.", "RELEVANT INTERNATIONAL AND EUROPEAN MATERIAL", "53. The relevant provisions of the United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (A/RES/46/119, 17 December 1991) read:", "Principle 1", "Fundamental freedoms and basic rights", "“...", "2. All persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person.”", "Principle 9", "Treatment", "“1. Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient ’ s health needs and the need to protect the physical safety of others.", "...", "3. Mental health care shall always be provided in accordance with applicable standards of ethics for mental health practitioners, including internationally accepted standards such as the Principles of Medical Ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment, adopted by the United Nations General Assembly. Mental health knowledge and skills shall never be abused.", "...”", "Principle 11", "Consent to treatment", "“...", "11. Physical restraint or involuntary seclusion of a patient shall not be employed except in accordance with the officially approved procedures of the mental health facility and only when it is the only means available to prevent immediate or imminent harm to the patient or others. It shall not be prolonged beyond the period which is strictly necessary for this purpose. All instances of physical restraint or involuntary seclusion, the reasons for them and their nature and extent shall be recorded in the patient ’ s medical record. A patient who is restrained or secluded shall be kept under humane conditions and be under the care and close and regular supervision of qualified members of the staff. A personal representative, if any and if relevant, shall be given prompt notice of any physical restraint or involuntary seclusion of the patient.”", "54. In its report of 4 February 2016 regarding Denmark, the United Nation ’ s Committee Against Torture (CAT/C/DNK/CO/6-7) stated, among other things:", "“40. The Committee is concerned at the frequent recourse to coercive measures, often accompanied by immobilisation of patients, in psychiatric institutions, in spite of the fact that the [mental health Act] stipulates that they should be used as a last resort ...", "41. The State party should:", "(a) Ensure that every competent mental health patient, whether voluntary or involuntary, is fully informed about the treatment to be prescribed, and given the opportunity to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law;", "(b) Revise and tighten regulations with clear and detailed guidance on the exceptional circumstances where the use of restraints may be allowed, with a view to considerably decreasing the recourse thereto in mental health care.”", "55. The relevant parts of Recommendation Rec( 2004)10 of the Committee of Ministers of the Council of Europe to member States concerning the protection of the human rights and dignity of persons with mental disorders, 22 September 2004, read as follows:", "Article 27", "“1. Seclusion or restraint should only be used in appropriate facilities, and in compliance with the principle of least restriction, to prevent imminent harm to the person concerned or others, and in proportion to the risks entailed.", "2. Such measures should only be used under medical supervision, and should be appropriately documented.", "3. In addition:", "i. the person subject to seclusion or restraint should be regularly monitored;", "ii. the reasons for, and duration of, such measures should be recorded in the person ’ s medical records and in a register.", "4. This Article does not apply to momentary restraint.”", "56. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) standards (CPT/Inf/E (2002) 1- Rev. 2010) contain the following rules on restraining patients in psychiatric establishments:", "“Involuntary placement in psychiatric establishments", "Extract from the 8th General Report [CPT/Inf (98) 12]", "47. In any psychiatric establishment, the restraint of agitated and/or violent patients may on occasion be necessary. This is an area of particular concern to the CPT, given the potential for abuse and ill-treatment.", "The restraint of patients should be the subject of a clearly-defined policy. That policy should make clear that initial attempts to restrain agitated or violent patients should, as far as possible, be non-physical (e.g. verbal instruction) and that where physical restraint is necessary, it should in principle be limited to manual control.", "Staff in psychiatric establishments should receive training in both non-physical and manual control techniques vis-à-vis agitated or violent patients. The possession of such skills will enable staff to choose the most appropriate response when confronted by difficult situations, thereby significantly reducing the risk of injuries to patients and staff.", "48. Resort to instruments of physical restraint (straps, strait-jackets, etc.) shall only very rarely be justified and must always be either expressly ordered by a doctor or immediately brought to the attention of a doctor with a view to seeking his approval. If, exceptionally, recourse is had to instruments of physical restraint, they should be removed at the earliest opportunity; they should never be applied, or their application prolonged, as a punishment ...", "...", "50. Every instance of the physical restraint of a patient (manual control, use of instruments of physical restraint, seclusion) should be recorded in a specific register established for this purpose (as well as in the patient ’ s file). The entry should include the times at which the measure began and ended, the circumstances of the case, the reasons for resorting to the measure, the name of the doctor who ordered or approved it, and an account of any injuries sustained by patients or staff.", "This will greatly facilitate both the management of such incidents and the oversight of the extent of their occurrence.”", "The following extract on means of restraint in psychiatric establishments for adults, from the 16th General Report (CPT/Inf (2006) 35), reads:", "“43. As a general rule, a patient should only be restrained as a measure of last resort; an extreme action applied in order to prevent imminent injury or to reduce acute agitation and/or violence ...", "...", "52. Experience has shown that detailed and accurate recording of instances of restraint can provide hospital management with an oversight of the extent of their occurrence and enable measures to be taken, where appropriate, to reduce their incidence.", "Preferably, a specific register should be established to record all instances of recourse to means of restraint. This would be in addition to the records contained within the patient ’ s personal medical file. The entries in the register should include the time at which the measure began and ended; the circumstances of the case; the reasons for resorting to the measure; the name of the doctor who ordered or approved it; and an account of any injuries sustained by patients or staff. Patients should be entitled to attach comments to the register, and should be informed of this; at their request, they should receive a copy of the full entry.”", "57. The CPT has visited Denmark on several occasions and made specific statements about the use of physical restraint in prisons and psychiatric establishments.", "58. In its report from 2002 (CPT/Inf (2002)18), the CPT expressed concern about the physical restraint of patients and recommended that it be reviewed as a matter of urgency (see paragraphs 75-76 of the report).", "59. In its report from 2008 (CPT/Inf (2008)26), the CPT expressed concerns, notably about the use of long-term physical restraint at the high ‑ security psychiatric unit in Nykøbing Sjælland ( Sikringen ), which receives patients who are considered too dangerous to be placed in other closed forensic or civil wards in Denmark. The CPT stressed that means of restraint should only be used as a last resort to prevent the risk of harm to the individual or others, and only when all other reasonable options would fail to satisfactorily contain that risk, and that the duration of the application of means of mechanical restraint should be for the shortest possible time (usually for minutes or a few hours) (see paragraphs 124-127 of the report).", "60. In its response (CPT/Inf (2009)12), the Danish Government did not find that there were grounds for introducing a time-limit for the application of physical restraint, “as this might deprive psychiatric departments and staff of the means to undertake necessary measures for the protection of the patient concerned and other patients, should the patient ’ s condition be unaltered at the expiry of the time limit”. They further submitted that the nursing staff could at any time discontinue physical immobilisation without a doctor ’ s prior assessment when restraint was no longer deemed necessary (see page 48 of the response).", "61. In its report from 2014 (CPT/Inf (2014)25), subsequent to its visit from 4 to 13 February 2014, the CPT stated, among other things:", "“121. As regards the use of immobilisation in psychiatric hospitals, the CPT ’ s delegation noted a constructive attitude among its interlocutors, and an overall acknowledgement both by the central authorities and the staff in the hospitals visited of the need to reduce the resort to immobilisation (and coercion in general). However, despite measures taken to tackle the frequent use and length of immobilisation in psychiatric hospitals, such as increased staff training and certain legislative amendments, there had been no reduction in the registered use of immobilisation in Denmark. On the contrary, the instances of immobilisation, and notably those of prolonged immobilisation (for more than 48 hours), has steadily increased and reached all-time peaks in 2012 and 2013 on a national level. The CPT therefore remains seriously concerned about the frequent and prolonged use of immobilisation in psychiatric hospitals. ...", "In the CPT ’ s view, the duration of the actual means of restraint should be for the shortest possible time (usually minutes to a few hours ), and should always be terminated when the reason for the use of restraint has ceased. The maximum duration of the application of mechanical restraint should ordinarily not exceed 6 hours. As pointed out in the reports on the CPT ’ s 2002 and 2008 visits to Denmark, the Committee considers that applying instruments of physical restraint to psychiatric patients for days on end cannot have any medical justification and amounts to ill-treatment.", "122. According to Section 15 of the Mental Health Act, immobilisation is as a rule to be decided by a doctor. Only in emergency situations could a patient be restrained to a bed with an abdominal belt upon the authorisation of a nurse while the doctor has to be called immediately. During immobilisation, one staff member has to be permanently located near the patient (while as far as possible respecting his/her privacy). The need for continuation of the measure of immobilisation has to be medically assessed at least four times a day in evenly-spaced intervals by a doctor. A second doctor has to authorise the continuation of immobilisation beyond 48 hours; however, such authorisation is thereafter obligatory only once a week. In the Committee ’ s view, a restraint approval based on the patient ’ s physical and mental condition is of little value if it is several days old. Moreover, the documentation examined by the delegation showed that in the case of a patient who had been continually immobilised for a period of 34 days at Amager, authorisation in writing by a second doctor had only been provided twice during the whole period. Indeed, staff was of the opinion that only one such authorisation was required, even if the patient was restrained for more than a month. Existing legal safeguards must be rigorously enforced.", "123. The second doctor ’ s authorisation was usually provided by a psychiatrist from a different ward within the same hospital. In case of disagreement between the treating and the second doctor as to the need for continuing the immobilisation, the law provides that the treating doctor ’ s opinion prevailed. In the Committee ’ s view, such a disagreement is a serious matter and should automatically lead to a referral to a third authority for a decision. An independent scrutiny should not rely on the second doctor ’ s or the patient ’ s ability and willingness to appeal.", "124. The release of an immobilised patient from belt restraint could be authorised by a nurse without consulting a doctor. This is positive, as it helps avoid the measure lasting longer than is absolutely necessary.", "However, the legislative amendments do not explicitly stipulate that the application of immobilisation should stop as soon as the danger of harm has passed and no maximum duration for immobilisation has been introduced. From the documentation examined, the delegation found that patients were frequently immobilised for 47 hours. The frequent termination of immobilisation just before the requirement for the second doctor ’ s assessment may raise questions as to the genuine necessity of applying the measure for the whole 47 hours. Moreover, at Amager, staff told the delegation that the release of a patient from immobilisation depended inter alia on the situation on the ward, such as the presence of other particularly demanding patients, staffing levels and the female/male staff ratio on the shift. Such a state of affairs, if accurate, would not be acceptable.", "125. The CPT again calls upon the Danish authorities to review the legislation and practice of immobilising psychiatric patients and in particular to ensure that immobilisation with a belt:", "- is only used as a last resort to prevent risk of harm to the patient or to others;", "- is applied for the shortest possible time (usually minutes rather than hours) and is always terminated as soon as the danger of harm has passed; the maximum duration should ordinarily not exceed six and under no circumstances exceed 24 hours;", "- is never applied or its application prolonged due to a shortage of staff;", "- is subject to regular review by a second doctor in case of an exceptional prolongation of immobilisation beyond the six hours limit, and thereafter at reasonably frequent intervals; and that in cases of disagreement between the treating and the second doctor about the prolongation of immobilisation, the matter be automatically referred to an independent third authority for decision. The same procedure should apply if the use of mechanical restraint is repeated within 24 hours following the termination of a previous measure of restraint”.", "62. In its report of 7 January 2020 (CPT/Inf (2019)35), subsequent to its visit from 3 to 12 April 2019, the CPT stated, among other things:", "“2. Legislative and countrywide developments in the field of psychiatry", "157. As regards relevant legislative developments, the Danish Mental Health Act (hereinafter “MHA”) as well as the “Executive Order No. 1338 on the use of coercion and deprivation of liberty on psychiatric wards” have been significantly amended since the CPT ’ s 2014 visit. The main changes relevant for the CPT ’ s mandate concern the safeguards surrounding belt restraint and the special restraint measure of “walking restraint” (see paragraphs 179 and 170).", "158. For many years, the CPT ’ s major criticism in the psychiatric field in Denmark has been the very high frequency and long duration of instances of restraint of psychiatric patients, in particular mechanical restraint (fixation with abdominal belt and straps), which had steadily increased over many years and reached all-time peaks in 2012 and 2013. The Danish Government, acknowledging the problem, has for several years now worked towards reducing recourse to coercion in psychiatry. In 2014, it adopted an Action Plan which included, amongst other things, the overall goal of the reduction in the percentage of hospitalised patients subject to coercion on the one hand, and of the total number of instances of mechanical restraint over 48 hours on the other, each by 50% by 2020. In addition, six experimental belt-free units were to be created in psychiatric hospitals. In order to monitor the goal of the 50% reduction in coercion, the Government had further formed a “Task Force for Psychiatry”.", "The CPT acknowledges the considerable efforts made by the Danish authorities over the recent years to reduce recourse to coercion and in particular belt fixation by serious management involvement, the provision of additional health-care staff, increased staff training (e.g. in de-escalation techniques and communication), improved patient involvement, enhanced activities for patients and through the creation of belt-free units in psychiatric hospitals. It is particularly commendable that the total number of instances of belt restraint, the total number of prolonged belt fixations (over 24 and over 48 hours) and the percentage of patients subject to belt restraint have now been reduced significantly at the national level.", "However, according to the national statistics on use of restraint, it appears that belt restraint has at least partly been replaced by other forms of coercion, mainly by “chemical restraint” (i.e. forcible administration of medication for the purpose of controlling a patient ’ s behaviour ). The Danish Health and Medicine Agency ( Sundhedsstyrelsen ) expressed its serious concerns about this “substitution effect” and reiterates its genuine commitment to achieve a long-term reduction in all means of coercion in psychiatry through a continued management focus on that goal, aimed at a long-term “cultural change in psychiatry”.", "The CPT further remains critical that there are still many instances of belt restraint for longer than 24 and even 48 hours. According to the national statistics, there were 408 instances per year of belt fixation for 24 to 48 hours and 439 instances per year of belt fixation for more than 48 hours in the reference period 2017/2018. It is particularly alarming that the delegation again received reports that psychiatric patients had been fixated to a bed for several months in different psychiatric hospitals pending their transfer to Sikringen. In two cases, the patients had apparently been under belt restraint for 10 and 13 months. This is completely unacceptable. Not surprisingly, one of these patients told the delegation that he required training in order to walk again properly after having been released from the belts. The CPT recommends that the Danish authorities take the necessary steps to ensure that patients are never mechanically restrained due to the lack of places at a secure psychiatric hospital.", "In more general terms, the Committee strongly recommends that the Danish authorities continue their efforts to reduce recourse to means of restraint in psychiatric hospitals, and instances of prolonged belt fixation in particular. As pointed out after the CPT ’ s previous visits, fixating psychiatric patients for days on end cannot have any justification and may amount to ill-treatment.", "Further, the utmost care should be taken to ensure that a reduction in recourse to belt fixation is not substituted by a generally increased use of other, similarly or more coercive means of restraint (notably chemical restraint).”", "THE LAW", "Article 3 OF THE CONVENTION", "63. The applicant complained that he had been strapped to a restraint bed on 8 February 2013 in breach of Article 3 of the Convention, which reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Admissibility", "1. Submissions by the parties", "64. The Government submitted that the application should be declared inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "65. The applicant disagreed.", "2. The Court ’ s assessment", "66. The Court finds that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "B. Merits", "1. Submissions by the parties", "(a) The applicant", "67. The applicant maintained that the application of physical restraint against him had been in breach of Article 3.", "68. He reiterated that according to the preparatory notes to section 14 ( Betænkning no. 1109/1987) (see paragraph 43 above), for a danger to be considered imminent, it had to be specific, present and demonstrable. A latent danger that might manifest itself under certain conditions or circumstances that might occur later would not suffice.", "69. In the present case, the applicant submitted that neither the medical records nor the testimonies had established that there had been an imminent danger requiring his physical restraint. Nor had it been established that other less intrusive means like personal shielding and sedative medication had been unsuccessful.", "70. The applicant considered that little weight could be attached to the testimony of M.H.L, and in particular her statement before the City Court about him allegedly having said that he wanted to put a bullet through H.H. ’ s head. That statement was not supported by any daily records or other witnesses. Likewise, H.H. ’ s statement that she was sure that the applicant had been offered a sedative was not supported by any entry in his daily records.", "71. Moreover, the applicant found that the opinion provided by the Medico-Legal Council had very little value, since the council could only consider the prescribing doctor ’ s medical conclusions as to possible danger, the need for treatment and so on, as facts. The applicant therefore alleged that statements by the Medico-Legal Council constituted a medical formality, and that the council had only very rarely found that a use of restraint had not been medically indicated.", "72. In the alternative, the applicant contended that the immobilisation in question, which had lasted twenty-two hours and fifty minutes, had been maintained for longer than had been strictly necessary. He reiterated that this was the longest period of immobilisation by a belt which the Court had ever dealt with. In his opinion, the domestic courts had failed to examine this issue in any particular detail, although the daily records indicated that throughout the whole period while he had been restrained he had been calm, quiet and talkative. There was no mention of violent behaviour, threats or anything like that. Moreover, despite the fact that nurses had been present during the immobilisation and had officially had the authority to discontinue the use of physical restraint in accordance with section 22(9) of Act no. 1338 of 2 December 2010, it appeared that, in the present case, in fact it was only the doctors who had had that authority.", "73. The applicant also found it noteworthy that the decision to release him had been made on 9 February 2013 at 10.30 a.m., whereas he had not actually been released until 12.05 p.m.", "74. Lastly, he reiterated that for more than a decade the CPT had criticised Denmark for the extensive use of mechanical restraint in prisons and psychiatric establishments, and that the United Nation ’ s Committee Against Torture, in its latest report dated 4 February 2016 regarding Denmark, had recommended that the regulations be revised and tightened with clear and detailed guidance on the exceptional circumstances where the use of restraint might be allowed.", "( b ) The Government", "75. The Government contended that there had been no violation of Article 3 of the Convention. Everything had been in full compliance with the Court ’ s case-law on the subject: the decision to physically restrain the applicant on 8 February 2013, the continuous review of the justification for maintaining the use of the restraint measure, the duration of the measure, the constant monitoring of the applicant ’ s condition, the keeping of daily records concerning the restraint measure, and the subsequent judicial review of the lawfulness of that restraint measure.", "76. The Government pointed out that the decision to immobilise the applicant had been based on a medical assessment concluding that he was dangerous to those around him, and had been taken after the use of less restrictive measures to calm him down had failed. They referred in particular to the testimony of the chief physician, H.H., who had described the applicant as being very white in the face, with fierce pent-up anger, paranoid with an inverted sense of logic, threatening, and having latent aggression. Beforehand she had left the applicant ’ s ward several times to give him the opportunity to calm down, and had offered him sedatives, but to no avail. The applicant ’ s behaviour on 8 February 2019 had to be seen in the light of the fact that he had made serious threats against H.H. the previous evening and had made the staff at the psychiatric hospital feel unsafe. Moreover, he had previously assaulted staff and fellow patients at psychiatric wards, and H.H. had known that from experience. The Government also referred to the testimony of M.H.L. and the opinion provided by the Medico-Legal Council.", "77. During the period when the applicant had been restrained a member of staff had kept a constant watch on him, doctors had checked on him four times, and extensive records of all interactions had been kept by staff. The use of restraint had thus been maintained on the basis of thorough and continuous medical assessments, and with continuous monitoring. The doctors had made the measures less restrictive in line with the applicant ’ s recovery, and as soon as the doctor responsible for his treatment had assessed that it was safe to release him, he had been released.", "78. Lastly, the Government reiterated that all relevant aspects concerning the necessity and proportionality of the measure in question had been reviewed by the domestic courts, at two levels of jurisdiction. They had been able to hear testimony from the persons involved and obtain independent medical statements from the Medico-Legal Council. In the Government ’ s view, those courts had therefore been in the best position to assess the course of the events and the medical assessments carried out.", "2. The Court ’ s assessment", "(a) General principles", "79. The Court reiterates that to fall under Article 3 of the Convention, ill-treatment must attain a minimum level of severity. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the gender, age and state of health of the victim (see, among many other authorities, Rooman v. Belgium [GC], no. 18052/11, § 141, 31 January 2019 ).", "80. Further factors include the purpose for which the treatment was inflicted, together with the intention or motivation behind it, as well as its context, such as an atmosphere of heightened tension and emotions (see Gäfgen v. Germany [GC], no. 22978/05, § 88, ECHR 2010).", "81. The Court has recognised the special vulnerability of mentally ill persons in its case-law, and the assessment of whether the treatment or punishment concerned is incompatible with the standards of Article 3 has to take into consideration this vulnerability in particular (see, inter alia, M.S. v. Croatia (no. 2), no. 75450/12, § 96, 19 February 2015, with further references ).", "82. In respect of persons deprived of their liberty, recourse to physical force which has not been made strictly necessary by their own conduct diminishes human dignity and is an infringement of the right set forth in Article 3 of the Convention (ibid., § 97, and Bouyid v. Belgium [GC], no. 23380/09, §§ 100 - 101, ECHR 2015 ).", "83. Furthermore, the Court reiterates that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with. Nevertheless, it is for the medical authorities to decide, on the basis of the recognised rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves, and for whom they are therefore responsible. The established principles of medicine are admittedly, in principle, decisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist ( M.S. v. Croatia (no. 2), cited above, § 98).", "84. In respect of the use of measures of physical restraint on patients in psychiatric hospitals, the developments in contemporary legal standards on seclusion and other forms of coercive and non-consensual measures against patients with psychological or intellectual disabilities in hospitals and all other places of deprivation of liberty require that such measures be employed as a matter of last resort, when their application is the only means available to prevent immediate or imminent harm to the patient or others ( ibid., § 104). Furthermore, the use of such measures must be commensurate with adequate safeguards against any abuse, provide sufficient procedural protection, and be capable of demonstrating sufficient justification that the requirements of ultimate necessity and proportionality have been complied with and that all other reasonable options have failed to satisfactorily contain the risk of harm to the patient or others. It must also be shown that the coercive measure at issue was not prolonged beyond the period which was strictly necessary for that purpose ( ibid., § 105).", "85. Lastly, restrained patients must be under close supervision, and every use of restraint must be properly recorded (see, among other authorities, Bureš v. the Czech Republic, no. 37679/08, §§ 101-103, 18 October 2012)", "(b) Application of the general principles to the present case", "86. The applicant complained that he had been strapped to a restraint bed on 8 February 2013. Alternatively, he complained that the restraint measure had been maintained for longer than had been strictly necessary.", "The Court notes from the outset that there seems to be some uncertainty as to the exact duration of the restraint measure. It is clear that the applicant was strapped to a restraint bed with a belt and wrist and ankle straps on 8 February 2013 at 1.15 p.m. (see paragraph 19 above).", "At 6.55 p.m., one foot strap was released and the applicant was released in connection with toilet visits and personal hygiene (see paragraph 24 above).", "According to the daily records, on 9 February 2013 at 10.30 a.m. B.E. assessed that it was safe to release the applicant from the restraint bed. Having conferred with H.H., it was decided that the applicant should be released at 12.05 p.m. (see paragraph 26 above).", "The Medico-Legal Council referred to the restraint measure having ended at 12 noon and 10.30 a.m. (see paragraph 27 above). The City Court judgment of 24 March 2017 referred to 12.05 p.m. (see paragraph 33 above), and the High Court judgment of 9 November 2017 referred to 10.30 a.m. (see paragraph 35 above).", "The Court will therefore proceed on the assumption that the decision to lift the restraint measure was taken on 9 February 2013 at 10.30 a.m., and executed at 12.05 p.m. The Court notes that the parties are in agreement on that point.", "To sum up, the applicant was strapped to a restraint bed with a belt and wrist and ankle straps during the first 5 hours and 40 minutes. Thereafter, during the following 17 hours and 10 minutes, one foot strap was released and the applicant was released in connection with toilet visits and personal hygiene. Altogether, the measure lasted 22 hours and 50 minutes.", "87. The Court must therefore assess whether the decision to resort to the restraint measure, whether the duration of the restraint measure, and whether the manner in which it was implemented, including supervision, control and recording, complied with the requirements in Article 3 of the Convention, that is whether the use of force was strictly necessary and respected the applicant ’ s human dignity, and did not expose him to pain and suffering in violation of the said Article.", "88. The necessity and justification of the disputed restraint measure was assessed on a number of occasions by various administrative and judicial bodies.", "89. Firstly, it was reviewed by the Psychiatric Patients ’ Complaints Board, which on 21 March 2013 found it unlawful. In the board ’ s view, it had not been documented that the applicant had exposed himself or others to an imminent risk of harm to body or health. However, it is noteworthy that only the applicant was heard by the board. H.H., the chief physician who had made the decision at issue, fell ill, and was therefore not heard by the board; it only had a brief statement from her about the incident (see paragraph 9 above).", "90. Secondly, the use of physical restraint was reviewed in connection with the applicant ’ s complaint against H.H. lodged with the Health Authority. On the basis of a statement by the applicant and a statement by H.H. of 30 August 2014 (see paragraph 14 above), on 19 December 2014 the Health Authority found no grounds for concluding that H.H. had acted with a lack of care or conscientiousness (see paragraph 15 above).", "91. Thirdly, the disputed measure was reviewed by the courts, when the applicant claimed that the State Administration should acknowledge having violated his rights under Article 3 of the Convention and pay him compensation.", "92. The City Court heard evidence from the applicant, H.H. the chief physician, and the healthcare assistant M.H.L. about the disputed use of physical restraint. It also had regard to the applicant ’ s daily records, the decisions by the Psychiatric Patients ’ Complaints Board and the Health Authority, the statement by H.H. of 30 August 2014, and a statement by the Medico-Legal Council of 2 June 2016. On the basis of that evidence, by a judgment of 24 March 2017, the City Court found that the conditions under section 14(2)( i ) of the Mental Health Act had been fulfilled, in that it had been necessary to prevent the applicant from exposing others to an imminent risk of harm to body or health, and less intrusive measures had not been possible (see paragraph 33 above).", "93. On appeal, by a judgment of 9 November 2017, on the basis of the written evidence submitted in the case, the High Court found no reason to disregard H.H. ’ s assessment at the time of the incident, and found that it had been necessary to strap the applicant to a restraint bed in order to avoid an imminent danger to himself or others, and that during the period while he had been restrained the staff had assessed with sufficient frequency whether the conditions for the restraint measure were still present (see paragraph 35 above).", "94. Leave to appeal to the Supreme Court was refused on 15 March 2018.", "95. The Court observes that European and national standards (see “Relevant domestic law” and “Relevant International and European Material”) are unanimous in declaring that physical restraints can be used only exceptionally, as a matter of last resort and when their application is the only means available to prevent immediate or imminent harm to the patient or others (see also, for example, M.S. v. Croatia (no. 2), cited above, § 104, and Bureš v. the Czech Republic, cited above, § 95).", "96. In line with these standards, the domestic courts carefully examined the case and confirmed that there had been a sufficient basis for the chief physician H.H. ’ s decision to strap the applicant to a restraint bed on 8 February 2013 at 1.15 p.m. on the grounds that this was necessary and proportionate to prevent him from subjecting the staff and the patients at the psychiatric hospital to an imminent risk of harm to body or health. Among other things, it was emphasised that on the previous evening the applicant had been angry and frustrated and had said “we have to do something about her”, which the staff had perceived as a threat against H.H. The following morning, he had had a “lot of pent-up anger”, notably when being told by H.H. that he could not go on day release while he was so angry. There had been three attempts to either enter into a dialogue with the applicant or leave him alone in order to let him calm down (see, in particular, paragraphs 14 and 19 above), but after one and a half hours he had still been extremely angry and considered to be a danger to those around him. At 1.15 p.m. on 8 February 2013 his “aggression and tension [had been] building up to such an extent that [H.H. had not] dared to [leave] him [un]restrained by a belt. [She] had felt that [everything] would go terribly wrong and escalate into violence, and that someone would get hurt”. H.H. had known the applicant and his illness well, including the fact that he had been sentenced to committal to a psychiatric hospital in 2005 and had previously assaulted staff and other patients in psychiatric wards.", "97. Before the City Court H.H. stated that she was “entirely sure that the applicant had been offered a sedative before being physically restrained with the belt” (see paragraph 30 above). Before the Court the applicant contested that he had been offered a sedative by H.H. He emphasised that this was not supported by any entry in his daily records. Before the Court the applicant also maintained that “personal shielding” (section 18 d of the Mental Health Act) could have been used as a less intrusive measure. The Court cannot see that these issues were specifically relied on by the applicant before the domestic courts, which may explain why they were not separately addressed by the City Court and the High Court. It is not for the Court to speculate as to whether a sedative was offered or not, or whether, having regard to the information about the applicant ’ s state and behaviour, a sedative or “personal shielding” could and should have been resorted to as an alternative to the measure applied. It observes, though, that the City Court in general stated “that it has been documented that measures less intrusive than physical restraint were not possible, see the principle of the least intrusive measure in section 4 of the Act” (see paragraph 33 above).", "98. The Court is thus satisfied that it was demonstrated that the immobilisation of the applicant was employed as a matter of last resort, and was the only means available to prevent immediate or imminent harm to others (see paragraph 84 above).", "99. The applicant submitted that for more than a decade the CPT had criticised Denmark for the extensive use of physical restraint in prisons and psychiatric institutions, and that the United Nation ’ s Committee Against Torture, in its report of 4 February 2016, had expressed concern “ at the frequent recourse to coercive measures, often accompanied by immobilisation of patients, in psychiatric institutions, in spite of the fact that the Psychiatric Act stipulates that they should be used as a last resort” (see paragraphs 54 and 61 above in particular).", "100. The Court is always attentive to positions held by other international institutions such as the CPT and the United Nation ’ s Committee Against Torture. It will be recalled though that the Court performs a conceptually different role from the one assigned to the CPT, whose responsibility does not entail pronouncing on whether a certain situation amounts to inhuman or degrading treatment or punishment within the meaning of Article 3 (see, for example, Muršić v. Croatia [GC], no. 7334/13, §113, 20 October 2016). Likewise, in the report of 4 February 2016 regarding Denmark (see paragraph 54 above), the United Nation ’ s Committee Against Torture expressed its general concern rather than its concern in a specific case or a concrete hospital.", "101. Finally, in cases arising from individual petitions, the Court ’ s task is not to review the relevant legislation or an impugned practice in the abstract. Instead, it must confine itself, as far as possible, without losing sight of the general context, to examining the issues raised by the case before it ( see, for example, Donohoe v. Ireland, no. 19165/08, § 73, 12 December 2013; Julin v. Estonia, cited above, § 126; Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § § 69-70, 20 October 2011; Taxquet v. Belgium [GC], no. 926/05, § 83 in fine, ECHR 2010; and Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, § 90, 31 July 2008).", "102. The Court will now proceed to examine the continuation and duration of the physical restraint measure. The Court recalls in this context that it is not sufficient that the decision to resort to the restraint measure was “strictly necessary” to prevent an immediate and imminent risk of harm to other persons. In addition, it is also a requirement that the restraint measure is not prolonged beyond the period which was “strictly necessary” (see paragraph 84 above), and that it is for the State to demonstrate convincingly that this condition was met.", "103. The applicant pointed out that he had been strapped to the restraint bed for almost twenty-three hours, which was the longest period of immobilisation by a belt which the Court had ever dealt with.", "104. The Court therefore finds it appropriate to compare the present case with some previous cases in which it found that strapping a person to a restraint bed had been in violation of Article 3 of the Convention.", "At the outset, the Court reiterates that the applicant in the present case was suffering from paranoid schizophrenia and had been sentenced to committal to a psychiatric hospital owing to five incidents of violence against civil servants acting in their official functions. Furthermore, as concluded above, the decision by the chief physician at the hospital to strap the applicant to a restraint bed on 8 February 2013 was found to be necessary in order to prevent him from exposing others to violence.", "The case at hand should thus be distinguished from cases on the physical restraint of prisoners, where the Court has stated that strapping a person to a restraint bed – in the absence of medical reasons – is a measure which should rarely be applied for more than a few hours, see, for example, Julin v. Estonia (nos. 16563/08 and 3 others, § 127, 29 May 2012). In that case, the applicant had already been locked in a single-occupancy disciplinary cell before he was placed in a restraint bed for nine hours.", "It may also be distinguished from Tali v. Estonia (no. 66393/10, §§ 81 ‑ 82, 13 February 2014), where a measure whereby the applicant was strapped to a restraint bed for three hours and forty minutes, when implemented along with other measures such as his placement in a single ‑ occupancy disciplinary cell and the use of physical force, handcuffs, pepper spray and telescopic batons, amounted to inhuman and degrading treatment.", "In both cases, the Court emphasised that restraint should never be used as a means of punishment, but rather to avoid self-injury or serious danger to other persons or prison security.", "The case at hand can also be distinguished from M.S. v Croatia (cited above), where the Court found that physical restraint for fifteen hours was the principal element that appeared worrying (ibid., §§ 99-100). However, it should be reiterated that, unlike the applicant in the present case, Mrs M.S. was not confined to a psychiatric hospital owing to a criminal conviction for violence. She went to see her family doctor, who sent her to the emergency health service, which prescribed hospitalisation. She was immediately, against her will, admitted to a psychiatric clinic, where, on the same day, she was strapped to a restraint bed. Moreover, her alleged aggression was only indicated in her record after the measure had already been used, and the records did not suggest that she had attempted to attack anyone. In addition, she had physical health problems and complained of pain in her back several times during the period while she was restrained.", "Lastly, the present case can be distinguished from Bureš v. the Czech Republic (cited above), where the applicant was a fragile man of slight build who was suffering from a mental illness. He was taken to a sobering-up centre in a state of intoxication and was immediately strapped to a restraint bed for several hours due to alleged “restlessness”. His subsequent restraint was justified by his allegedly aggressive behaviour towards a male nurse, but there were no reports of this to the police, and there were no details about the nature of the attack anywhere in the case file. In addition, due to the restraint, Mr Bureš suffered severe bilateral paresis of the elbow nerves.", "105. It follows that the present case is distinguishable from the cases so far examined by the Court, and that it cannot be concluded that the duration of almost twenty-three hours for the applicant to be strapped to the restraint bed is, per se, sufficient to find a violation of Article 3. It will depend on whether the continuation and duration of the measure of physical restraint in respect of the applicant was the only means available to prevent immediate or imminent harm to himself or others (see, M.S. v Croatia, cited above, § 104).", "106. The domestic courts confirmed that the continuation and duration of the physical restraint measure in respect of the applicant had been necessary and proportionate to prevent him from subjecting others to an imminent risk of harm to body or health. It was undisputed that a social and healthcare assistant had been present with the applicant throughout the period while he had been restrained, and that the observations of those assistants had regularly been entered in his daily records. Moreover, doctors had been to see the applicant four times.", "107. From the applicant ’ s daily records, it was apparent that H.H. had been to see the applicant at 2.45 p.m. and he had still had a great deal of pent-up anger. He had appeared to have latent aggression. At 6.55 p.m. Doctor B.E. had found that the applicant appeared more “quiet” and talkative, and had therefore decided to release one ankle strap and allow the applicant to be released in connection with toilet visits and personal hygiene. Thus, after less than six hours the measure was relaxed. Despite that progress, at 10.46 p.m. B.E. had decided that the applicant was still potentially dangerous to other people because of his “instinctive anger”. The following day, on 9 February 2013 at 6 a.m. M.O., a carer, had written that the applicant had slept throughout the night. At 10.30 a.m. B.E. had decided that it was safe to release the applicant from the restraint bed, and following a discussion with H.H. the applicant had been released at 12.05 p.m.", "108. On the basis of the information before them, including the statement from the Medico-Legal Council, the domestic courts were confident that during the period when the applicant had been physically restrained, medical evaluations had been carried out with sufficient frequency to assess whether the conditions for the restraint measure were still present.", "109. The Court reiterates that the domestic courts had the benefit of direct contact with all the persons concerned, and that the assessment of whether the use of restraint in respect of the applicant was necessary was first and foremost a medical assessment (see M.S. v Croatia, cited above, § 98, and, mutatis mutandis, Herczegfalvy v. Austria, no. 10533/83, § 82, 24 September 1992).", "110. Nevertheless, in the Court ’ s view, the domestic courts were silent on several issues, which were crucial for the assessment of whether the continuation of the restraint, and its duration for almost twenty-three hours, was “strictly necessary” to prevent immediate or imminent harm to others.", "111. Firstly, the Court notes that although at 6.55 p.m. Doctor B.E. found that the applicant appeared more “quiet” and talkative, and therefore decided to release one ankle strap and allow the applicant to be released in connection with toilet visits and personal hygiene, at 10.46 p.m., that is approximately four hours later, he nevertheless maintained the immobilisation, because he found that the applicant was still “potentially” dangerous to other people because of his instinctive anger. The Court recalls in this respect that a “potential” danger does not suffice to establish that a danger is immediate or imminent. That was also specified in the preparatory notes to section 14 of the Mental Health Act (see paragraph 43 above), which stated that “for a danger to be considered imminent, it must be specific, present and demonstrable. However, a latent danger that may manifest itself under certain conditions or circumstances that may occur later will not suffice.”", "112. Secondly, between 8 February 2013 at 10.46 p.m. and the following day, 9 February 2013, at 10.30 a.m., that is a period of almost twelve hours, the applicant was not attended to by a doctor. It is not disputed between the parties, as written by M.O. in the applicant ’ s daily records at 6 a.m., “that the evening had been quiet and the applicant had slept throughout the night”, or that there was always a social and healthcare assistant present with the applicant, but it remains the fact that in the end it was a doctor who took the decision to release him and that there was no danger assessment carried out by a doctor for almost twelve hours.", "113. Thirdly, although B.E. had decided that it was safe to release the applicant on 9 February 2013 at 10.30 a.m., he was actually not released until 12.05 p.m., that is until H.H. had been consulted. Accordingly, the physical restraint was prolonged by one hour and thirty-five minutes without any explanation for this delay.", "114. In these specific circumstances, in particular having regard to the available information about the applicant ’ s state during the evening and night of 8 February 2013, and the delay in releasing him de facto on 9 February 2013, and the domestic courts ’ failure to specifically address these issues, the Court cannot conclude that it has been sufficiently proven that the continuation and the duration of the restraint measure for almost twenty-three hours was strictly necessary and respected the applicant ’ s human dignity, and did not expose him to pain and suffering in violation of Article 3 of the Convention (see M.S. v. Croatia, cited above, § 105).", "115. It follows that there has been a violation of Article 3 of the Convention.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "116. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "117. The applicant claimed 40,000 Euros (EUR) in compensation for non ‑ pecuniary damage relating to the alleged violation of Article 3 of the Convention.", "118. The Government submitted that the claim was excessive.", "119. The Court considers it undeniable that the applicant sustained non ‑ pecuniary damage on account of the violation of Article 3 of the Convention. Making its assessment on an equitable basis as required by Article 41 of the Convention, it awards EUR 10,000 under this head.", "B. Costs and expenses in the domestic proceedings", "120. The applicant claimed reimbursement of the costs and expenses incurred in the domestic proceedings, amounting to 146,500 Danish Kroner (DKK) (equal to approximately EUR 19,700), which had been paid by his insurance company.", "121. The Government emphasised that the applicant had not paid the said costs, nor was he liable to pay them.", "122. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, for example, Dudgeon v. the United Kingdom (Article 50), 24 February 1983, § 22, Series A no. 59). The Court further notes that the costs of the domestic proceedings may be awarded if they are incurred by an applicant in order to try to prevent the violation found by the Court or to obtain redress therefor (see, among other authorities, Lopata v. Russia, no. 72250/01, § 168, 13 July 2010).", "123. In the present case, it is not in dispute between the parties that the costs claimed were indeed paid by the applicant ’ s insurance company. Accordingly, the Court makes no award in respect of the costs incurred in the domestic proceedings.", "C. Costs and expenses before the Court", "124. The applicant claimed the costs and expenses incurred in the Convention proceedings in the amount of DKK 131,981 (equal to approximately EUR 17,700), corresponding to legal fees for a total of 57 hours of work, carried out by his representative, and to translation costs in the amount of DKK 6,937 inclusive of VAT, (equal to approximately EUR 930).", "125. The Government found the amount excessive and noted that the applicant had been granted legal aid under the Danish Legal Aid Act ( Lov 1999-12-20 nr. 940 om retshjælp til indgivelse og førelse af klagesager for internationale klageorganer i henhold til menneskerettighedskonventioner ) and that the Department of Civil Affairs had notified the applicant of a provisional grant of legal aid up to DKK 40,000 (equal to approximately EUR 5,400). In the Government ’ s view that sum was sufficient to cover the legal costs related to the case before the Court.", "126. In the present case, the applicant has provisionally been granted DKK 40,000 under the Danish Legal Aid Act. However, it is uncertain whether the applicant will subsequently be granted additional legal aid by the Ministry of Justice and how a dispute between the parties about the applicant ’ s outstanding claim for legal aid is to be decided. Therefore, the Court finds it necessary to assess and decide the applicant ’ s claim for costs and expenses.", "127. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession, the above criteria, and awards made in comparable cases against Denmark (see, among others, Tim Henrik Bruun Hansen v. Denmark, no. 51072/15, § 92, 9 July 2019 and Osman v. Denmark, no. 38058/09, § 88, 14 June 2011), and the fact that the applicant has already been paid DKK 40,000 under the Danish Legal Aid Act, the Court considers it reasonable to award the sum of EUR 4,000 covering the costs for the proceedings before the Court, including the legal fee and translation costs.", "D. Default interest", "128. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant was born in 1956 in Ruse, where he lived until December 2002 and where his half-sister and his father’s second wife, his only close relatives, also live. On 20 December 1990 a panel of occupational physicians declared him unfit to work. The panel found that as a result of being diagnosed with schizophrenia in 1975, the applicant had a 90% degree of disablement but did not require assistance. He is in receipt of an invalidity pension on that account.", "A. The applicant’s placement under partial guardianship and placement in a social care home for people with mental disorders", "10. On an unspecified date in 2000, at the request of the applicant’s two relatives, the Ruse regional prosecutor applied to the Ruse Regional Court ( Окръжен съд ) for a declaration of total legal incapacity in respect of the applicant. In a judgment of 20 November 2000, the court declared the applicant to be partially incapacitated on the grounds that he had been suffering from simple schizophrenia since 1975, and that his ability to manage his own affairs and interests and to realise the consequences of his own acts had been impaired. The court found that the applicant’s condition was not so serious as to warrant a declaration of total incapacity. It observed, in particular, that during the period from 1975 to 2000 he had been admitted to a psychiatric hospital on several occasions. The court took into account an expert medical report produced in the course of the proceedings and interviewed the applicant. Furthermore, according to certain other people it interviewed, the applicant had sold all his possessions, begged for a living, spent all his money on alcohol and became aggressive whenever he drank.", "11. That judgment was upheld in a judgment of 12 April 2001 by the Veliko Tarnovo Court of Appeal ( Апелативен съд ) on an appeal by the applicant, and was subsequently transmitted to the Ruse Municipal Council on 7 June 2001 for the appointment of a guardian.", "12. Since the applicant’s family members had refused to take on any guardianship responsibilities, on 23 May 2002 the Municipal Council appointed Ms R.P., a council officer, as the applicant’s guardian until 31 December 2002.", "13. On 29 May 2002 R.P. asked the Ruse social services to place the applicant in a social care home for people with mental disorders. She appended to the application form a series of documents including a psychiatric diagnosis. Social services drew up a welfare report on the applicant, noting on 23 July 2002 that he was suffering from schizophrenia, that he lived alone in a small, run-down annexe to his half-sister’s house and that his half-sister and his father’s second wife had stated that they did not wish to act as his guardian. The requirements for placement in a social care home were therefore deemed to be fulfilled.", "14. On 10 December 2002 a welfare-placement agreement was signed between R.P. and the social care home for adults with mental disorders near the village of Pastra in the municipality of Rila (“the Pastra social care home”), an institution under the responsibility of the Ministry of Labour and Social Policy. The applicant was not informed of the agreement.", "15. Later that day, the applicant was taken by ambulance to the Pastra social care home, some 400 km from Ruse. Before the Court, he stated that he had not been told why he was being placed in the home or for how long; the Government did not dispute this.", "16. On 14 December 2002, at the request of the Director of the Pastra social care home, the applicant was registered as having his home address in the municipality of Rila. The residence certificate stated that his address had been changed for the purpose of his “permanent supervision”. According to the most recent evidence submitted in February 2011, the applicant was still living in the home at that time.", "17. On 9 September 2005 the applicant’s lawyer requested the Rila Municipal Council to appoint a guardian for her client. In a letter dated 16 September 2005, she was informed that the Municipal Council had decided on 2 February 2005 to appoint the Director of the Pastra social care home as the applicant’s guardian.", "B. The applicant’s stay in the Pastra social care home", "1. Provisions of the placement agreement", "18. The agreement signed between the guardian R.P. and the Pastra social care home on 10 December 2002 (see paragraph 14 above) did not mention the applicant’s name. It stated that the home was to provide food, clothing, medical services, heating and, obviously, accommodation, in return for payment of an amount determined by law. It appears that the applicant’s entire invalidity pension was transferred to the home to cover that amount. The agreement stipulated that 80% of the sum was to be used as payment for the services provided and the remaining 20% put aside for personal expenses. According to the information in the case file, the applicant’s invalidity pension, as updated in 2008, amounted to 130 Bulgarian levs (BGN – approximately 65 euros (EUR)). The agreement did not specify the duration of the provision of the services in question.", "2. Description of the site", "19. The Pastra social care home is located in an isolated area of the Rila mountains in south-west Bulgaria. It is accessible via a dirt track from the village of Pastra, the nearest locality 8 km away.", "20. The home, built in the 1920s, comprises three buildings, where its residents, all male, are housed according to the state of their mental health. According to a report produced by the Social Assistance Agency in April 2009, there were seventy-three people living in the home, one was in hospital and two had absconded. Among the residents, twenty-three were entirely lacking legal capacity, two were partially lacking capacity and the others enjoyed full legal capacity. Each building has a yard surrounded by a high metal fence. The applicant was placed in block 3 of the home, reserved for residents with the least serious health problems, who were able to move around the premises and go alone to the nearest village with prior permission.", "21. According to the applicant, the home was decaying, dirty and rarely heated in winter and, as a result, he and the other residents were obliged to sleep in their coats during winter. The applicant shared a room measuring 16 sq. m with four other residents and the beds were practically side by side. He had only a bedside table in which to store his clothes, but he preferred to keep them in his bed at night for fear that they might be stolen and replaced with old clothes. The home’s residents did not have their own items of clothing because clothes were not returned to the same people after being washed.", "3. Diet and hygiene and sanitary conditions", "22. The applicant asserted that the food provided at the home was insufficient and of poor quality. He had no say in the choice of meals and was not allowed to help prepare them.", "23. Access to the bathroom, which was unhealthy and decrepit, was permitted once a week. The toilets in the courtyard, which were unhygienic and in a very poor state of repair, consisted of holes in the ground covered by dilapidated shelters. Each toilet was shared by at least eight people. Toiletries were available only sporadically.", "4. Recent developments", "24. In their memorial before the Grand Chamber, the Government stated that renovation work had been carried out in late 2009 in the part of the home where the applicant lived, including the sanitary facilities. The home now had central heating. The diet was varied and regularly included fruit and vegetables as well as meat. Residents had access to television, books and games. The State provided them all with clothes. The applicant did not dispute these assertions.", "5. Journeys undertaken by the applicant", "25. The home’s management kept hold of the applicant’s identity papers, allowing him to leave the home only with special permission from the Director. He regularly went to the village of Pastra. It appears that during the visits he mainly provided domestic help to villagers or carried out tasks at the village restaurant.", "26. Between 2002 and 2006 the applicant returned to Ruse three times on leave of absence. Each trip was authorised for a period of about ten days. The journey cost BGN 60 (approximately EUR 30), which was paid to the applicant by the home’s management.", "27. The applicant returned to Pastra before the end of his authorised period of leave after his first two visits to Ruse. According to a statement made by the Director of the home to the public prosecutor’s office on an unspecified date, the applicant came back early because he was unable to manage his finances and had no accommodation.", "28. The third period of leave was authorised from 15 to 25 September 2006. After the applicant failed to return on the scheduled date, the Director of the home wrote to the Ruse municipal police on 13 October 2006, asking them to search for the applicant and transfer him to Sofia, where employees of the home would be able to collect him and take him back to Pastra. On 19 October 2006 the Ruse police informed the Director that the applicant’s whereabouts had been discovered but that the police could not transfer him because he was not the subject of a wanted notice. He was driven back to the social care home on 31 October 2006, apparently by staff of the home.", "6. Opportunities for cultural and recreational activities", "29. The applicant had access to a television set, several books and a chessboard in a common room at the home until 3 p.m., after which the room was kept locked. The room was not heated in winter and the residents kept their coats, hats and gloves on when inside. No other social, cultural or sports activities were available.", "7. Correspondence", "30. The applicant submitted that the staff at the social care home had refused to supply him with envelopes for his correspondence and that, as he did not have access to his own money, he could not buy any either. The staff would ask him to give them any sheets of paper he wished to post so that they could put them in envelopes and send them off for him.", "8. Medical treatment", "31. It appears from a medical certificate of 15 June 2005 (see paragraph 37 below) that, following his placement in the home in 2002, the applicant was given anti-psychotic medication (carbamazepine (600 mg)) under the monthly supervision of a psychiatrist.", "32. In addition, at the Grand Chamber hearing the applicant’s representatives stated that their client had been in stable remission since 2006 and had not undergone any psychiatric treatment in recent years.", "C. Assessment of the applicant’s social skills during his stay in Pastra and conclusions of the psychiatric report drawn up at his lawyer’s request", "33. Once a year, the Director of the social care home and the home’s social worker drew up evaluation reports on the applicant’s behaviour and social skills. The reports indicated that the applicant was uncommunicative, preferred to stay on his own rather than join in group activities, refused to take his medication and had no close relatives to visit while on leave of absence. He was not on good terms with his half-sister and nobody was sure whether he had anywhere to live outside the social care home. The reports concluded that it was impossible for the applicant to reintegrate into society, and set the objective of ensuring that he acquired the necessary skills and knowledge for social resettlement and, in the long term, reintegration into his family. It appears that he was never offered any therapy to that end.", "34. The case file indicates that in 2005 the applicant’s guardian asked the Municipal Council to grant a social allowance to facilitate his reintegration into the community. Further to that request, on 30 December 2005 the municipal social assistance department carried out a “social assessment” ( социална оценка ) of the applicant, which concluded that he was incapable of working, even in a sheltered environment, and had no need for training or retraining, and that in those circumstances he was entitled to a social allowance to cover the costs of his transport, subsistence and medication. On 7 February 2007 the municipal social assistance department granted the applicant a monthly allowance of BGN 16.50 (approximately EUR 8). On 3 February 2009 the allowance was increased to BGN 19.50 (approximately EUR 10).", "35. In addition, at his lawyer’s request, the applicant was examined on 31 August 2006 by Dr V.S., a different psychiatrist from the one who regularly visited the social care home, and by a psychologist, Ms I.A. The report drawn up on that occasion concluded that the diagnosis of schizophrenia given on 15 June 2005 (see paragraph 37 below) was inaccurate in that the patient did not display all the symptoms of that condition. It stated that, although the applicant had suffered from the condition in the past, he had not shown any signs of aggression at the time of the examination but rather a suspicious attitude and a slight tendency towards “verbal aggression”; that he had not undergone any treatment for the condition between 2002 and 2006; and that his health had visibly stabilised. The report noted that no risk of deterioration of his mental health had been observed and stated that, in the opinion of the home’s Director, the applicant was capable of reintegrating into society.", "36. According to the report, the applicant’s stay in the Pastra social care home was very damaging to his health and it was desirable that he should leave the home, otherwise he was at risk of developing “institutionalisation syndrome” the longer he stayed there. The report added that it would be more beneficial to his mental health and social development to allow him to integrate into community life with as few restrictions as possible, and that the only aspect to monitor was his tendency towards alcohol abuse, which had been apparent prior to 2002. In the view of the experts who had examined the applicant, the behaviour of an alcohol-dependent person could have similar characteristics to that of a person with schizophrenia; accordingly, vigilance was required in the applicant’s case and care should be taken not to confuse the two conditions.", "D. The applicant’s attempts to obtain release from partial guardianship", "37. On 25 November 2004 the applicant, through his lawyer, asked the public prosecutor’s office to apply to the Regional Court to have his legal capacity restored. On 2 March 2005 the public prosecutor requested the Pastra social care home to send him a doctor’s opinion and other medical certificates concerning the applicant’s disorders in preparation for a possible application to the courts for restoration of his legal capacity. Further to that request, the applicant was admitted to a psychiatric hospital from 31 May to 15 June 2005 for a medical assessment. In a certificate issued on the latter date, the doctors attested that the applicant showed symptoms of schizophrenia. As his health had not deteriorated since he had been placed in the home in 2002, the regime to which he was subject there had remained unchanged. He had been on maintenance medication since 2002 under the monthly supervision of a psychiatrist. A psychological examination had revealed that he was agitated, tense and suspicious. His communication skills were poor and he was unaware of his illness. He had said that he wanted to leave the home at all costs. The doctors did not express an opinion either on his capacity for resettlement or on the need to keep him in the Pastra social care home.", "38. On 10 August 2005 the regional prosecutor refused to bring an action for restoration of the applicant’s legal capacity on the grounds that, in the opinion of the doctors, the Director of the Pastra social care home and the home’s social worker, the applicant was unable to cope on his own, and that the home, where he could undergo medical treatment, was the most suitable place for him to live. The applicant’s lawyer challenged the refusal to bring the action, arguing that her client should have the opportunity to assess by himself whether or not, having regard to the living conditions at the home, it was in his interests to remain there. She pointed out that the enforced continuation of his stay in the home, on the pretext of providing him with treatment in his own interests, amounted in practice to a deprivation of liberty, a situation that was unacceptable. A person could not be placed in an institution without his or her consent. In accordance with the legislation in force, anyone under partial guardianship was free to choose his or her place of residence, with the guardian’s agreement. The choice of residence was therefore not a matter within the competence of the prosecution service. Despite those objections, the regional prosecutor’s refusal was upheld on 11 October 2005 by the appellate prosecutor, and subsequently on 29 November 2005 by the Chief Public Prosecutor’s Office at the Supreme Court of Cassation.", "39. On 9 September 2005 the applicant, through his lawyer, asked the mayor of Rila to bring a court action for his release from partial guardianship. In a letter of 16 September 2005, the mayor of Rila refused his request, stating that there was no basis for such an action in view of the medical certificate of 15 June 2005, the opinions of the Director and the social worker, and the conclusions reached by the public prosecutor’s office. On 28 September 2005 the applicant’s lawyer applied to the Dupnitsa District Court for judicial review of the mayor’s decision, under Article 115 of the Family Code (“the FC”) (see paragraph 49 below). In a letter of 7 October 2005, the District Court stated that since the applicant was partially lacking legal capacity he was required to submit a valid form of authority certifying that his lawyer was representing him, and that it should be specified whether his guardian had intervened in the procedure. On an unspecified date the applicant’s lawyer submitted a copy of the form of authority signed by the applicant. She also requested that the guardian join the proceedings as an interested party or that an ad hoc representative be appointed. On 18 January 2006 the court held a hearing at which the representative of the mayor of Rila objected that the form of authority was invalid as it had not been countersigned by the guardian. The guardian, who was present at the hearing, stated that he was not opposed to the applicant’s application, but that the latter’s old-age pension was insufficient to meet his needs and that, accordingly, the Pastra social care home was the best place for him to live.", "40. The Dupnitsa District Court gave judgment on 10 March 2006. As to the admissibility of the application for judicial review, it held that, although the applicant had instructed his lawyer to represent him, she was not entitled to act on his behalf since the guardian had not signed the form of authority. However, it held that the guardian’s endorsement of the application at the public hearing had validated all the procedural steps taken by the lawyer, and that the application was therefore admissible. As to the merits, the court dismissed the application, finding that the guardian had no legitimate interest in contesting the mayor’s refusal, given that he could apply independently and directly for the applicant to be released from partial guardianship. Since the judgment was not subject to appeal, it became final.", "41. Lastly, the applicant asserted that he had made several oral requests to his guardian to apply for his release from partial guardianship and to allow him to leave the home. However, his requests had always been refused.", "I. State liability", "62. The State and Municipalities Responsibility for Damage Act 1988 ( Закон за отговорността на държавата и общините за вреди – title amended in 2006) provides in section 2(1) that the State is liable for damage caused to private individuals as a result of a judicial decision ordering certain types of detention where the decision has been set aside as having no legal basis.", "63. Section 1(1) of the same Act provides that the State and municipalities are liable for damage caused to private individuals and other legal entities as a result of unlawful decisions, acts or omissions by their own authorities or officials while discharging their administrative duties.", "64. In a number of decisions, various domestic courts have found this provision to be applicable to the damage suffered by prisoners as a result of poor conditions or inadequate medical treatment in prison and have, where appropriate, partly or fully upheld claims for compensation brought by the persons concerned (реш. от 26.01.2004 г. по гр. д. № 959/2003, ВКС, IV г. о. and реш. № 330 от 7.08.2007 г. по гр. д. № 92/2006, ВКС, IV г. о.).", "65. There are no court decisions in which the above position has been found to apply to allegations of poor living conditions in social care homes.", "66. Moreover, it appears from the domestic courts’ case-law that, under section 1(1) of the Act in question, anyone whose health has deteriorated because bodies under the authority of the Ministry of Health have failed in their duty to provide a regular supply of medication may hold the administrative authorities liable and receive compensation (реш. № 211 от 27.05.2008 г. по гр. д. № 6087/2007, ВКС, V г. о.).", "67. Lastly, the State and its authorities are subject to the ordinary rules on tortious liability for other forms of damage resulting, for example, from the death of a person under guardianship while absconding from a social care home for adults with a mental deficiency, on the ground that the staff of the home had failed to discharge their duty of permanent supervision (реш. № 693 от 26.06.2009 г. по гр. д. № 8/2009, ВКС, III г. о.).", "J. Arrest by the police under the Ministry of the Interior Act 2006", "68. Under this Act, the police are, inter alia, authorised to arrest anyone who, on account of severe mental disturbance and through his or her conduct, poses a threat to public order or puts his or her own life in manifest danger (section 63(1)-(3)). The person concerned may challenge the lawfulness of the arrest before a court, which must give an immediate ruling (section 63(4)).", "69. Furthermore, the police’s responsibilities include searching for missing persons (section 139(3)).", "K. Information submitted by the applicant about searches for persons who have absconded from social care homes for adults with mental disorders", "70. The Bulgarian Helsinki Committee conducted a survey of police stations regarding searches for people who had absconded from social care homes of this type. It appears from the survey that there is no uniform practice. Some police officers said that when they were asked by employees of a home to search for a missing person, they carried out the search and took the person to the police station, before informing the home. Other officers explained that they searched for the person but, not being empowered to perform an arrest, simply notified the staff of the home, who took the person back themselves.", "L. Statistics submitted by the applicant on judicial proceedings concerning deprivation of legal capacity", "71. The Bulgarian Helsinki Committee obtained statistics from 8 regional courts on the outcome of proceedings for restoration of legal capacity between January 2002 and September 2009. During this period 677 persons were deprived of legal capacity. Proceedings to restore capacity were instituted in 36 cases: 10 of them ended with the lifting of the measure; total incapacitation was changed to partial incapacitation in 8 cases; the applications were rejected in 4 cases; the courts discontinued the proceedings in 7 cases; and the other cases are still pending." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Legal status of persons placed under partial guardianship and their representation before the courts", "42. Section 5 of the Persons and Family Act of 9 August 1949 provides that persons who are unable to look after their own interests on account of mental illness or mental deficiency must be entirely deprived of legal capacity and declared legally incapable. Adults with milder forms of such disorders are to be partially incapacitated. Persons who are entirely deprived of legal capacity are placed under full guardianship ( настойничество ), whereas those who are partially incapacitated are placed under partial guardianship ( попечителство – literally “trusteeship”). In accordance with sections 4 and 5 of the Act, persons under partial guardianship may not perform legal transactions without their guardian’s consent. They may, however, carry out ordinary acts forming part of everyday life and have access to the resources obtained in consideration for their work. Accordingly, the guardian of a partially incapacitated person cannot independently perform legal transactions that are binding on that person. This means that contracts signed only by the guardian, without the consent of the person partially lacking legal capacity, are invalid.", "43. Under Article 16 § 2 of the Code of Civil Procedure (“the CCP”), persons under full guardianship are represented before the courts by their guardian. Persons under partial guardianship, however, are entitled to take part in court proceedings, but require their guardian’s consent. Accordingly, the guardian of a partially incapacitated person does not perform the role of a legal representative. The guardian cannot act on behalf of the person under partial guardianship, but may express agreement or disagreement with the person’s individual transactions (Сталев, Ж., Българско гражданско процесуално право, София, 2006 г., стр. 171). In particular, a person under partial guardianship may instruct a lawyer provided that the form of authority is signed by the guardian (ibid., стр. 173).", "B. Procedure for placement under partial guardianship", "44. There are two stages to the procedure for placing a person under partial guardianship: the declaration of partial incapacity and the appointment of a guardian.", "1. Declaration of partial incapacity by the courts", "45. The first stage involves a judicial procedure which at the material time was governed by Articles 275 to 277 of the 1952 CCP, which have been reproduced unchanged in Articles 336 to 340 of the new 2007 CCP. A declaration of partial incapacity may be sought by the person’s spouse or close relatives, by the public prosecutor or by any other interested party. The court reaches its decision after examining the person concerned at a public hearing – or, failing that, after forming a first-hand impression of the person’s condition – and interviewing the person’s close relatives. If the statements thus obtained are insufficient, the court may have recourse to other evidence, such as an expert medical assessment. According to domestic case-law, an assessment must be ordered where the court is unable to conclude from any other information in the file that the request for deprivation of legal capacity is unfounded (Решение на ВС № 1538 от 21.VIII.1961 г. по гр. д. № 5408/61 г.; Решение на ВС № 593 от 4.III.1967 г. по гр. д. № 3218/1966 г.).", "2. Appointment of a guardian by the administrative authorities", "46. The second stage involves an administrative procedure for the appointment of a guardian, which at the material time was governed by Chapter X (Articles 109 to 128) of the 1985 FC; these provisions have been reproduced, with only minor amendments, in Articles 153 to 174 of the new 2009 FC. The administrative stage is conducted by an authority referred to as “the guardianship authority”, namely the mayor or any other municipal council officer designated by him or her.", "47. The guardian should preferably be appointed from among the relatives of the person concerned who are best able to defend his or her interests.", "C. Review of measures taken by the guardian and possibility of replacement", "48. Measures taken by the guardian are subject to review by the guardianship authority. At the authority’s request, the guardian must report on his or her activities. If any irregularities are observed, the authority may request that they be rectified or may order the suspension of the measures in question (see Articles 126 § 2 and 125 of the 1985 FC, and Articles 170 and 171 §§ 2 and 3, of the 2009 FC). It is unclear from domestic law whether persons under partial guardianship may apply to the mayor individually or through another party to suspend measures taken by the guardian.", "49. Decisions by the mayor, as the guardianship authority, and any refusal by the mayor to appoint a guardian or to take other steps provided for in the FC are, for their part, amenable to judicial review. They may be challenged by interested parties or the public prosecutor before the district court, which gives a final decision on the merits (Article 115 of the 1985 FC). This procedure allows close relatives to request a change of guardian in the event of a conflict of interests (Решение на ВС № 1249 от 23.XII.1993 г. по гр. д. № 897/93 г.). According to domestic case-law, fully incapacitated persons are not among the “interested parties” entitled to initiate such proceedings (Определение № 5771 от 11.06.2003 г. на ВАС по адм. д. № 9248/2002). There is no domestic case-law showing that a partially incapacitated person is authorised to do so.", "50. Furthermore, the guardianship authority may at any time replace a guardian who fails to discharge his or her duties (Article 113 of the 1985 FC). By Article 116 of the 1985 FC, a person cannot be appointed as a guardian where there is a conflict of interests between that person and the person under partial guardianship. Article 123 of the 1985 FC provides that a deputy guardian is to be appointed where the guardian is unable to discharge his or her duties or where there is a conflict of interests. In both cases, the guardianship authority may also appoint an ad hoc representative.", "D. Procedure for restoration of legal capacity", "51. By virtue of Article 277 of the 1952 CCP, this procedure is similar to the partial-guardianship procedure. It is open to anyone entitled to apply for a person to be placed under partial guardianship, and also to the guardianship authority and the guardian. The above-mentioned provision has been reproduced in Article 340 of the 2007 CCP. On 13 February 1980 the Plenary Supreme Court delivered a decision (no. 5/79) aimed at clarifying certain questions concerning the procedure for deprivation of legal capacity. Paragraph 10 of the decision refers to the procedure for restoration of legal capacity and reads as follows:", "“The rules applicable in the procedure for restoration of legal capacity are the same as those governing the procedure for deprivation of capacity (Articles 277 and 275 §§ 1 and 2 of the CCP). The persons who requested the measure or the close relatives are treated as respondent parties in the procedure. There is nothing to prevent the party that applied for a person to be deprived of legal capacity from requesting the termination of the measure if circumstances have changed.", "Persons under partial guardianship may request, either individually or with the consent of their guardian, that the measure be lifted. They may also ask the guardianship authority or the guardianship council to bring an action under Article 277 of the CCP in the regional court which deprived them of legal capacity. In such cases, they must show that the application is in their interests by producing a medical certificate. In the context of such an action, they will be treated as the claimant. Where the guardian of a partially incapacitated person, the guardianship authority or the guardianship council (in the case of a fully incapacitated person) refuses to bring an action for restoration of legal capacity, the incapacitated person may ask the public prosecutor to do so (Постановление № 5/79 от 13.II.1980 г., Пленум на ВС).”", "52. In addition, the Government cited a case in which proceedings for the review of the legal status of a person entirely deprived of legal capacity had been instituted at the guardian’s request and the person had been released from guardianship (Решение № 1301 от 12.11.2008 г. на ВКС по гр. Д. № 5560/2007 г., V г.о.).", "E. Validity of contracts signed by representatives of incapacitated persons", "53. Section 26(2) of the Obligations and Contracts Act 1950 provides that contracts that are in breach of the law or have been entered into in the absence of consent are deemed null and void.", "54. In accordance with section 27 of the same Act, contracts entered into by representatives of persons deprived of legal capacity in breach of the applicable rules are deemed voidable. A ground of incurable nullity may be raised on any occasion, whereas a ground of voidability may be raised only by means of a court action. The right to raise a ground of voidability becomes time-barred after a period of three years from the date of release from partial guardianship if a guardian is not appointed. In other cases, the period in question begins to run from the date on which a guardian is appointed (section 32(2), in conjunction with section 115(1)(e), of the above-mentioned Act; see also Решение на ВС № 668 от 14.III.1963 г. по гр. д. № 250/63 г., I г. о., Решение на Окръжен съд – Стара Загора от 2.2.2010 г. по т. д. № 381/2009 г. на I състав, Решение на Районен съд Стара Загора № 459 от 19.5.2009 г. по гр. д. № 1087/2008).", "F. Place of residence of legally incapacitated persons", "55. By virtue of Articles 120 and 122 § 3 of the 1985 FC, persons deprived of legal capacity are deemed to reside at the home address of their guardian unless “exceptional reasons” require them to live elsewhere. Where the place of residence is changed without the guardian’s consent, the guardian may request the district court to order the person’s return to the official address. By Article 163 §§ 2 and 3 of the 2009 FC, before reaching a decision in such cases, the court is required to interview the person under guardianship. If it finds that there are “exceptional reasons”, it must refuse to order the person’s return and must immediately inform the municipal social assistance department so that protective measures can be taken.", "56. The district court’s order may be appealed against to the president of the regional court, although its execution cannot be stayed.", "G. Placement of legally incapacitated persons in social care homes for adults with mental disorders", "57. Under the Social Assistance Act 1998, social assistance is available to people who, for medical and social reasons, are incapable of meeting their basic needs on their own through work, through their own assets or with the help of persons required by law to care for them (section 2 of the Act). Social assistance consists of the provision of various financial benefits, benefits in kind and social services, including placement in specialised institutions. Such benefits are granted on the basis of an individual assessment of the needs of the persons concerned and in accordance with their wishes and personal choices (section 16(2)).", "58. By virtue of the implementing regulations for the Social Assistance Act 1998 ( Правилник за прилагане на Закона за социално подпомагане ), three categories of institutions are defined as “specialised institutions” for the provision of social services: (1) children’s homes (homes for children deprived of parental care, homes for children with physical disabilities, homes for children with a mental deficiency); (2) homes for adults with disabilities (homes for adults with a mental deficiency, homes for adults with mental disorders, homes for adults with physical disabilities, homes for adults with sensory disorders, homes for adults with dementia); and (3) old people’s homes (Regulation 36(3)). Social services are provided in specialised institutions where it is no longer possible to receive them in the community (Regulation 36(4)). Under domestic law, placement of a legally incapacitated person in a social care home is not regarded as a form of deprivation of liberty.", "59. Similarly, in accordance with Decree no. 4 of 16 March 1999 on the conditions for obtaining social services ( Наредба № 4 за условията и реда за извършване на социални услуги ), adults with mental deficiencies are placed in specialised social care homes if it is impossible to provide them with the necessary medical care in a family environment (Articles 12, point (4), and 27 of the Decree). Article 33 § 1, point (3), of the Decree provides that when a person is placed in a social care home, a medical certificate concerning the person’s state of health must be produced. By Article 37 § 1 of the Decree, a placement agreement for the provision of social services is signed between the specialised institution and the person concerned or his or her legal representative, on the basis of a model approved by the Ministry of Labour and Social Policy. The person may be transferred to another home or may leave the institution in which he or she has been placed: (1) at his or her request or at the request of his or her legal representative, submitted in writing to the director of the institution; (2) if there is a change in the state of his or her mental and/or physical health such that it no longer corresponds to the profile of the home; (3) in the event of failure to pay the monthly social welfare contribution for more than one month; (4) in the event of systematic breaches of the institution’s internal rules; or (5) in the event of a confirmed addiction to narcotic substances.", "60. Furthermore, the system governing admission to a psychiatric hospital for compulsory medical treatment is set out in the Health Act 2005, which replaced the Public Health Act 1973.", "H. Appointment of an ad hoc representative in the event of a conflict of interests", "61. Article 16 § 6 of the CCP provides that, in the event of a conflict of interests between a person being represented and the representative, the court is to appoint an ad hoc representative. The Bulgarian courts have applied this provision in certain situations involving a conflict of interests between minors and their legal representative. Thus, the failure to appoint an ad hoc representative has been found to amount to a substantial breach of the rules governing paternity proceedings (Решение на ВС № 297 от 15.04.1987 г. по гр. д. № 168/87 г., II г. о.), disputes between adoptive and biological parents (Решение на ВС № 1381 от 10.05.1982 г. по гр. д. № 954/82 г., II г. о.) or property disputes (Решение № 643 от 27.07.2000 г. на ВКС по гр. д. № 27/2000 г., II г. о.; Определение на ОС – Велико Търново от 5.11.2008 г. по в. ч. гр. д. № 963/2008).", "III. RELEVANT INTERNATIONAL INSTRUMENTS", "A. Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106)", "72. This convention came into force on 3 May 2008. It was signed by Bulgaria on 27 September 2007 but has yet to be ratified. The relevant parts of the Convention provide:", "Article 12 Equal recognition before the law", "“1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.", "2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.", "3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.", "4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.", "5. Subject to the provisions of this Article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.”", "Article 14 Liberty and security of person", "“1. States Parties shall ensure that persons with disabilities, on an equal basis with others:", "(a) Enjoy the right to liberty and security of person;", "(b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.", "2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.”", "B. Recommendation No. R (99) 4 of the Committee of Ministers of the Council of Europe on principles concerning the legal protection of incapable adults (adopted on 23 February 1999)", "73. The relevant parts of this Recommendation read as follows.", "Principle 2 – Flexibility in legal response", "“1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal response to be made to different degrees of incapacity and various situations.", "...", "4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.”", "Principle 3 – Maximum preservation of capacity", "“1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.", "2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so.", "...”", "Principle 6 – Proportionality", "“1. Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned.", "2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention.”", "Principle 13 – Right to be heard in person", "“The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.”", "Principle 14 – Duration, review and appeal", "“1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews.", "...", "3. There should be adequate rights of appeal.”", "C. Reports on visits to Bulgaria by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)", "1. The CPT’s report on its visit from 16 to 22 December 2003, published on 24 June 2004", "74. This report outlines the situation of persons placed by the public authorities in social care homes for people with mental disorders or mental deficiency, which are under the authority of the Ministry of Labour and Social Policy. Part II.4 of the report is devoted to the Pastra social care home.", "75. The CPT noted that the home’s official capacity was 105; it had 92 registered male residents, of whom 86 were present at the time of the visit. Two residents had absconded and the others were on home leave. Some 90% of the residents were suffering from schizophrenia and the remainder had a mental deficiency. The majority had spent many years in the institution, discharges being quite uncommon.", "76. According to the CPT’s findings, the premises of the Pastra social care home were in a deplorable state of repair and hygiene and the home was inadequately heated.", "77. In particular, the buildings did not have running water. The residents washed in cold water in the yard and were often unshaven and dirty. The bathroom, to which they had access once a week, was rudimentary and dilapidated.", "78. The toilets, likewise located in the yard, consisted of decrepit shelters with holes dug in the ground. They were in an execrable state and access to them was dangerous. Furthermore, basic toiletries were rarely available.", "79. The report notes that the provision of food was inadequate. Residents received three meals a day, including 750 g of bread. Milk and eggs were never on offer, and fresh fruit and vegetables were rarely available. No provision was made for special diets.", "80. The only form of treatment at the home consisted of the provision of medication. The residents, who were treated as chronic psychiatric patients in need of maintenance therapy, were registered as outpatients with a psychiatrist in Dupnitsa. The psychiatrist visited the home once every two to three months, and also on request. In addition, residents could be taken to the psychiatrist – who held weekly surgeries in the nearby town of Rila – if changes in their mental condition were observed. All residents underwent a psychiatric examination twice a year, which was an occasion for them to have their medication reviewed and, if necessary, adjusted. Nearly all residents received psychiatric medication, which was recorded on a special card and administered by the nurses.", "81. Apart from the administration of medication, no therapeutic activities were organised for residents, who led passive, monotonous lives.", "82. The CPT concluded that these conditions had created a situation which could be said to amount to inhuman and degrading treatment. It requested the Bulgarian authorities to replace the Pastra social care home as a matter of urgency. In their response of 13 February 2004, the Bulgarian authorities acknowledged that the home was not in conformity with European care standards. They stated that it would be closed as a priority and that the residents would be transferred to other institutions.", "83. The CPT further observed, in part II.7 of its report, that in most cases placement of people with mental disabilities in a specialised institution led to a de facto deprivation of liberty. The placement procedure should therefore be accompanied by appropriate safeguards, among them an objective medical, and in particular psychiatric, assessment. It was also essential that these persons should have the right to bring proceedings by which the lawfulness of their placement could be decided speedily by a court. The CPT recommended that such a right be guaranteed in Bulgaria (see paragraph 52 of the report).", "2. The CPT’s report on its visit from 10 to 21 September 2006, published on 28 February 2008", "84. In this report the CPT again recommended that provision be made for the introduction of judicial review of the lawfulness of placement in a social care home (see paragraphs 176-77 of the report).", "85. It also recommended that efforts be made to ensure that the placement of residents in homes for people with mental disorders and/or deficiency conformed fully to the letter and spirit of the law. Contracts for the provision of social services should specify the legal rights of residents, including the possibilities for lodging complaints with an outside authority. Furthermore, residents who were incapable of understanding the contracts should receive appropriate assistance (see paragraph 178 of the report).", "86. Lastly, the CPT urged the Bulgarian authorities to take the necessary steps to avoid conflicts of interests arising from the appointment of an employee of a social care home as the guardian of a resident of the same institution (see paragraph 179 of the report).", "87. The CPT made a further visit to the Pastra social care home during its periodic visit to Bulgaria in October 2010.", "IV. COMPARATIVE LAW", "A. Access to a court for restoration of legal capacity", "88. A comparative study of the domestic law of twenty Council of Europe member States indicates that in the vast majority of cases (Croatia, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Luxembourg, Monaco, Poland, Portugal, Romania, Slovakia, Sweden, Switzerland and Turkey) the law entitles anyone who has been deprived of legal capacity to apply directly to the courts for discontinuation of the measure.", "89. In Ukraine, people who have been partially deprived of legal capacity may themselves apply for the measure to be lifted; this does not apply to those who have been declared fully incapable, who may nevertheless challenge before a court any measures taken by their guardian.", "90. Judicial proceedings for the discontinuation of an order depriving a person of legal capacity cannot be instituted directly by the person concerned in Latvia (where an application may be made by the public prosecutor or the guardianship council) or in Ireland.", "B. Placement of legally incapacitated persons in a specialised institution", "91. A comparative-law study of the legislation of twenty States Parties to the Convention shows that there is no uniform approach in Europe to the question of placement of legally incapacitated persons in specialised institutions, particularly as regards the authority competent to order the placement and the guarantees afforded to the person concerned. It may nevertheless be observed that in some countries (Austria, Estonia, Finland, France, Germany, Greece, Poland, Portugal and Turkey) the decision to place a person in a home on a long-term basis against his or her will is taken directly or approved by a judge.", "92. Other legal systems (Belgium, Denmark, Hungary, Ireland, Latvia, Luxembourg, Monaco and the United Kingdom) authorise the guardian, close relatives or the administrative authorities to decide on placement in a specialised institution without a judge’s approval being necessary. It also appears that in all the above-mentioned countries, the placement is subject to a number of substantive requirements, relating in particular to the person’s health, the existence of a danger or risk and/or the production of medical certificates. In addition, the obligation to interview or consult the person concerned on the subject of the placement, the setting of a time-limit by law or by the courts for the termination or review of the placement, and the possibility of legal assistance are among the safeguards provided in several national legal systems.", "93. In certain countries (Denmark, Estonia, Germany, Greece, Hungary, Ireland, Latvia, Poland, Slovakia, Switzerland and Turkey) the possibility of challenging the initial placement order before a judicial body is available to the person concerned without requiring the guardian’s consent.", "94. Lastly, several States (Denmark, Estonia, Finland, Germany, Greece, Ireland, Latvia, Poland, Switzerland and Turkey) directly empower the person concerned to apply periodically for judicial review of the lawfulness of the continued placement.", "95. It should also be noted that many countries’ laws on legal capacity or placement in specialised institutions have recently been amended (Austria: 2007; Denmark: 2007; Estonia: 2005; Finland: 1999; France: 2007; Germany: 1992; Greece: 1992; Hungary: 2004; Latvia: 2006; Poland: 2007; Ukraine: 2000; United Kingdom: 2005) or are in the process of being amended (Ireland). These legislative reforms are designed to increase the legal protection of persons lacking legal capacity by affording them either the right of direct access to court for a review of their status, or additional safeguards when they are placed in specialised institutions against their will.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "96. The applicant submitted that his placement in the Pastra social care home was in breach of Article 5 § 1 of the Convention.", "Article 5 § 1 provides:", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "(a) the lawful detention of a person after conviction by a competent court;", "(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;", "(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;", "(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;", "(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;", "(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”", "A. Preliminary remarks", "97. The Grand Chamber observes that the Government maintained before it the objection they raised before the Chamber, alleging failure to exhaust domestic remedies in respect of the complaint under Article 5 § 1.", "98. The objection was based on the following arguments. Firstly, the applicant could at any time have applied personally to a court for restoration of his legal capacity, under Article 277 of the Code of Civil Procedure (“the CCP”), and release from guardianship would have allowed him to leave the home of his own accord. Secondly, his close relatives had not availed themselves of the possibility open to some of them, under Articles 113 and 115 of the Family Code (“the FC”), of asking the guardianship authority to replace his guardian. According to the Government, in the event of a refusal the applicants’ relatives could have applied to a court, which would have considered the merits of the request and, if appropriate, appointed a new guardian, who would then have been able to terminate the placement agreement. The Government also submitted in substance that the applicant’s close relatives could have challenged the contract signed between the guardian R.P. and the Pastra social care home. Lastly, they indicated that the applicant himself could have requested the guardianship authority to appoint an ad hoc representative on account of his alleged conflict of interests with his guardian, with a view to requesting to leave the institution and establish his home elsewhere (Article 123 § 1 of the FC).", "99. The Grand Chamber observes that in its admissibility decision of 29 June 2010 the Chamber found that this objection raised questions that were closely linked to those arising in relation to the applicant’s complaint under Article 5 § 4 and therefore joined the objection to its examination of the merits under that provision.", "100. In addition, finding that the question whether there had been a “deprivation of liberty” within the meaning of Article 5 § 1 in the present case was closely linked to the merits of the complaint under that provision, the Chamber likewise joined that issue to its examination of the merits. The Grand Chamber sees no reason to call into question the Chamber’s findings on these issues.", "B. Whether the applicant was deprived of his liberty within the meaning of Article 5 § 1", "1. The parties’ submissions", "(a) The applicant", "101. The applicant contended that, although under domestic law placement of people with mental disorders in a social care institution was regarded as “voluntary”, his transfer to the Pastra social care home constituted a deprivation of liberty. He maintained that, as in Storck v. Germany (no. 61603/00, ECHR 2005-V), the objective and subjective elements of detention were present in his case.", "102. With regard to the nature of the measure, the applicant submitted that living in a social care home in a remote mountain location amounted to physical isolation from society. He could not have chosen to leave on his own initiative since, having no identity papers or money, he would soon have faced the risk of being stopped by the police for a routine check, a widespread practice in Bulgaria.", "103. Absences from the social care home were subject to permission. The distance of approximately 420 km between the institution and his home town and the fact that he had no access to his invalidity pension had made it impossible for him to travel to Ruse more than three times. The applicant further submitted that he had been denied permission to travel on many other occasions by the home’s management. He added that, in accordance with a practice with no legal basis, residents who left the premises for longer than the authorised period were treated as fugitives and were searched for by the police. He stated in that connection that on one occasion the police had arrested him in Ruse and that, although they had not taken him back to the home, the fact that the Director had asked for him to be located and transferred back had amounted to a decisive restriction on his right to personal liberty. He stated that he had been arrested and detained by the police pending the arrival of staff from the home to collect him, without being informed of the grounds for depriving him of his liberty. Since he had been transferred back under duress, it was immaterial that those involved had been employees of the home.", "104. The applicant further noted that his placement in the home had already lasted more than eight years and that his hopes of leaving one day were futile, as the decision had to be approved by his guardian.", "105. As to the consequences of his placement, the applicant highlighted the severity of the regime to which he was subject. His occupational activities, treatment and movements had been subject to thorough and practical supervision by the home’s employees. He had been required to follow a strict daily routine, getting up, going to bed and eating at set times. He had had no free choice as to his clothing, the preparation of his meals, participation in cultural events or the development of relations with other people, including intimate relationships as the home’s residents were all men. He had been allowed to watch television in the morning only. Accordingly, his stay in the home had caused a perceptible deterioration in his well-being and the onset of institutionalisation syndrome, in other words the inability to reintegrate into the community and lead a normal life.", "106. With regard to the subjective element, the applicant submitted that his situation differed from that examined in H.M. v. Switzerland (no. 39187/98, ECHR 2002-II), in which the applicant had consented to her placement in a nursing home. He himself had never given such consent. His guardian at the time, Ms R.P. (see paragraph 12 above), had not consulted him on the placement and, moreover, he did not even know her; nor had he been informed of the existence of the placement agreement of 10 December 2002 (see paragraph 14 above), which he had never signed. Those circumstances reflected a widespread practice in Bulgaria whereby once people were deprived of legal capacity, even partially, they were deemed incapable of expressing their wishes. In addition, it was clear from the medical documents that the applicant’s desire to leave the home had been interpreted not as a freely expressed wish, but rather as a symptom of his mental illness.", "107. Lastly, in H.M. v. Switzerland (cited above) the authorities had based their decision to place the applicant in a nursing home on a thorough examination showing that the living conditions in her own home had severely deteriorated as a result of her lack of cooperation with a social welfare authority. By contrast, the applicant in the present case had never been offered and had never refused alternative social care at home.", "(b) The Government", "108. In their written observations before the Chamber, the Government accepted that the circumstances of the case amounted to a “deprivation of liberty” within the meaning of Article 5 § 1 of the Convention. However, at the hearing and in the proceedings before the Grand Chamber, they contended that Article 5 was not applicable. They observed in that connection that the applicant had not been compulsorily admitted to a psychiatric institution by the public authorities under the Public Health Act, but had been housed in a social care home at his guardian’s request, on the basis of a civil-law agreement and in accordance with the rules on social assistance. Thus, persons in need of assistance, including those with mental disorders, could request various social and medical services, either directly or through their representatives, under the Social Assistance Act 1998 (see paragraphs 57-60 above). Homes for adults with mental disorders offered a wide range of services of this kind and placement in such institutions could not be seen as a deprivation of liberty.", "109. As to the particular circumstances of the case, the Government emphasised that the applicant had never expressly and consciously objected to his placement in the home, and it could not therefore be concluded that the measure had been involuntary. Furthermore, he had been free to leave the home at any time.", "110. In addition, the applicant had been encouraged to work in the village restaurant to the best of his abilities and had been granted leave of absence on three occasions. The reason he had twice returned from Ruse before the end of his authorised period of leave (see paragraph 27 above) was his lack of accommodation. The Government further submitted that the applicant had never been brought back to the home by the police. They acknowledged that in September 2006 the Director had been obliged to ask the police to search for him because he had not come back (see paragraph 28 above). However, it was clear from the case of Dodov v. Bulgaria (no. 59548/00, 17 January 2008) that the State had a positive obligation to take care of people housed in social care homes. In the Government’s submission, the steps taken by the Director had formed part of this duty of protection.", "111. The Government further observed that the applicant had lacked legal capacity and had not had the benefit of a supportive family environment, accommodation or sufficient resources to lead an independent life. Referring in that connection to the judgments in H.M. v. Switzerland (cited above) and Nielsen v. Denmark (28 November 1988, Series A no. 144), they submitted that the applicant’s placement in the home was simply a protective measure taken in his interests alone and constituted an appropriate response to a social and medical emergency; such a response could not be viewed as involuntary.", "(c) The third party", "112. Interights made the following general observations. It stated that it had carried out a survey of practices regarding placement of people with mental disorders in specialised institutions in central and east European countries. According to the conclusions of the survey, in most cases placement in such institutions could be regarded as amounting to a de facto deprivation of liberty.", "113. Social care homes were often located in rural or mountainous areas which were not easily accessible. Where they were situated near urban areas, they were surrounded by high walls or fences and the gates were kept locked. As a rule, residents were able to leave the premises only with the express permission of the director of the home, and for a limited period. In cases of unauthorised leave, the police had the power to search for and return the persons concerned. The same restrictive regime applied to all residents, without any distinction according to legal status – whether they had full, partial or no legal capacity – and in the view of Interights this was a decisive factor. No consideration at all was given to whether the placement was voluntary or involuntary.", "114. Regarding the analysis of the subjective aspect of the placement, Interights submitted that the consent of the persons concerned was a matter requiring careful attention. Thorough efforts should be made to ascertain their true wishes, notwithstanding any declaration of legal incapacity that might have been made in their case. Interights contended that in reality, when faced with a choice between a precarious, homeless existence and the relative security offered by a social care home, incapable persons in central and east European countries might opt for the latter solution, simply because no alternative services were offered by the State’s social welfare system. That did not mean, however, that the persons concerned could be said to have freely consented to the placement.", "2. The Court’s assessment", "(a) General principles", "115. The Court reiterates that the difference between deprivation of liberty and restrictions on liberty of movement, the latter being governed by Article 2 of Protocol No. 4, is merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends (see Guzzardi v. Italy, 6 November 1980, §§ 92-93, Series A no. 39). In order to determine whether someone has been deprived of his liberty, the starting-point must be his specific situation and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question (see Storck, cited above, § 71, and Guzzardi, cited above, § 92).", "116. In the context of deprivation of liberty on mental-health grounds, the Court has held that a person could be regarded as having been “detained” even during a period when he was in an open hospital ward with regular unescorted access to the unsecured hospital grounds and the possibility of unescorted leave outside the hospital (see Ashingdane v. the United Kingdom, 28 May 1985, § 42, Series A no. 93).", "117. Furthermore, in relation to the placement of mentally disordered persons in an institution, the Court has held that the notion of deprivation of liberty does not only comprise the objective element of a person’s confinement in a particular restricted space for a not negligible length of time. A person can only be considered to have been deprived of his liberty if, as an additional subjective element, he has not validly consented to the confinement in question (see Storck, cited above, § 74).", "118. The Court has found that there was a deprivation of liberty in circumstances such as the following: (a) where the applicant, who had been declared legally incapable and admitted to a psychiatric hospital at his legal representative’s request, had unsuccessfully attempted to leave the hospital (see Shtukaturov v. Russia, no. 44009/05, § 108, ECHR 2008); (b) where the applicant had initially consented to her admission to a clinic but had subsequently attempted to escape (see Storck, cited above, § 76); and (c) where the applicant was an adult incapable of giving his consent to admission to a psychiatric institution which, nonetheless, he had never attempted to leave (see H.L. v. the United Kingdom, no. 45508/99, §§ 89-94, ECHR 2004-IX).", "119. The Court has also held that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, §§ 64 ‑ 65, Series A no. 12), especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action (see H.L. v. the United Kingdom, cited above, § 90).", "120. In addition, the Court has had occasion to observe that the first sentence of Article 5 § 1 must be construed as laying down a positive obligation on the State to protect the liberty of those within its jurisdiction. Otherwise, there would be a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The State is therefore obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge (see Storck, cited above, § 102). Thus, having regard to the particular circumstances of the cases before it, the Court has held that the national authorities’ responsibility was engaged as a result of detention in a psychiatric hospital at the request of the applicant’s guardian (see Shtukaturov, cited above) and detention in a private clinic (see Storck, cited above).", "(b) Application of these principles in the present case", "121. The Court observes at the outset that it is unnecessary in the present case to determine whether, in general terms, any placement of a legally incapacitated person in a social care institution constitutes a “deprivation of liberty” within the meaning of Article 5 § 1. In some cases, the placement is initiated by families who are also involved in the guardianship arrangements and is based on civil-law agreements signed with an appropriate social care institution. Accordingly, any restrictions on liberty in such cases are the result of actions by private individuals and the authorities’ role is limited to supervision. The Court is not called upon in the present case to rule on the obligations that may arise under the Convention for the authorities in such situations.", "122. It observes that there are special circumstances in the present case. No members of the applicant’s family were involved in his guardianship arrangements, and the duties of guardian were assigned to a State official (Ms R.P.), who negotiated and signed the placement agreement with the Pastra social care home without any contact with the applicant, whom she had in fact never met. The placement agreement was implemented in a State-run institution by social services, which likewise did not interview the applicant (see paragraphs 12-15 above). The applicant was never consulted about his guardian’s choices, even though he could have expressed a valid opinion and his consent was necessary in accordance with the Persons and Family Act 1949 (see paragraph 42 above). That being so, he was not transferred to the Pastra social care home at his request or on the basis of a voluntary private-law agreement on admission to an institution to receive social assistance and protection. The Court considers that the restrictions complained of by the applicant are the result of various steps taken by public authorities and institutions through their officials, from the initial request for his placement in an institution and throughout the implementation of the relevant measure, and not of acts or initiatives by private individuals. Although there is no indication that the applicant’s guardian acted in bad faith, the above considerations set the present case apart from Nielsen (cited above), in which the applicant’s mother committed her son, a minor, to a psychiatric institution in good faith, which prompted the Court to find that the measure in question entailed the exercise of exclusive custodial rights over a child who was not capable of expressing a valid opinion.", "123. The applicant’s placement in the social care home can therefore be said to have been attributable to the national authorities. It remains to be determined whether the restrictions resulting from that measure amounted to a “deprivation of liberty” within the meaning of Article 5.", "124. With regard to the objective aspect, the Court observes that the applicant was housed in a block which he was able to leave, but emphasises that the question whether the building was locked is not decisive (see Ashingdane, cited above, § 42). While it is true that the applicant was able to go to the nearest village, he needed express permission to do so (see paragraph 25 above). Moreover, the time he spent away from the home and the places where he could go were always subject to controls and restrictions.", "125. The Court further notes that between 2002 and 2009 the applicant was granted leave of absence for three short visits (of about ten days) to Ruse (see paragraphs 26-28 above). It cannot speculate as to whether he could have made more frequent visits had he asked to do so. Nevertheless, it observes that such leave of absence was entirely at the discretion of the home’s management, who kept the applicant’s identity papers and administered his finances, including transport costs (see paragraphs 25-26 above). Furthermore, it would appear to the Court that the home’s location in a mountain region far away from Ruse (some 400 km) made any journey difficult and expensive for the applicant in view of his income and his ability to make his own travel arrangements.", "126. The Court considers that this system of leave of absence and the fact that the management kept the applicant’s identity papers placed significant restrictions on his personal liberty.", "127. Moreover, it is not disputed that when the applicant did not return from leave of absence in 2006, the home’s management asked the Ruse police to search for and return him (see paragraph 28 above). The Court can accept that such steps form part of the responsibilities assumed by the management of a home for people with mental disorders towards its residents. It further notes that the police did not escort the applicant back and that he has not proved that he was arrested pending the arrival of staff from the home. Nevertheless, since his authorised period of leave had expired, the staff returned him to the home without regard for his wishes.", "128. Accordingly, although the applicant was able to undertake certain journeys, the factors outlined above lead the Court to consider that, contrary to what the Government maintained, he was under constant supervision and was not free to leave the home without permission whenever he wished. With reference to the Dodov case (cited above), the Government maintained that the restrictions in issue had been necessary in view of the authorities’ positive obligations to protect the applicant’s life and health. The Court notes that, in the above-mentioned case, the applicant’s mother suffered from Alzheimer’s disease and that, as a result, her memory and other mental capacities had progressively deteriorated, to the extent that the nursing home staff had been instructed not to leave her unattended. In the present case, however, the Government have not shown that the applicant’s state of health was such as to put him at immediate risk, or to require the imposition of any special restrictions to protect his life and limb.", "129. As regards the duration of the measure, the Court observes that it was not specified and was thus indefinite since the applicant was listed in the municipal registers as having his permanent address at the home, where he still remains (having lived there for more than eight years). This period is sufficiently lengthy for him to have felt the full adverse effects of the restrictions imposed on him.", "130. As to the subjective aspect of the measure, it should be noted that, contrary to the requirements of domestic law (see paragraph 42 above), the applicant was not asked to give his opinion on his placement in the home and never explicitly consented to it. Instead, he was taken to Pastra by ambulance and placed in the home without being informed of the reasons for or duration of that measure, which had been taken by his officially assigned guardian. The Court observes in this connection that there are situations where the wishes of a person with impaired mental faculties may validly be replaced by those of another person acting in the context of a protective measure and that it is sometimes difficult to ascertain the true wishes or preferences of the person concerned. However, the Court has already held that the fact that a person lacks legal capacity does not necessarily mean that he is unable to comprehend his situation (see Shtukaturov, cited above, § 108). In the present case, domestic law attached a certain weight to the applicant’s wishes and it appears that he was well aware of his situation. The Court notes that, at least from 2004, the applicant explicitly expressed his desire to leave the Pastra social care home, both to psychiatrists and through his applications to the authorities to have his legal capacity restored and to be released from guardianship (see paragraphs 37-41 above).", "131. These factors set the present case apart from H.M. v. Switzerland (cited above), in which the Court found that there had been no deprivation of liberty as the applicant had been placed in a nursing home purely in her own interests and, after her arrival there, had agreed to stay. In that connection the Government have not shown that in the present case, on arrival at the Pastra social care home or at any later date, the applicant agreed to stay there. That being so, the Court is not convinced that the applicant consented to the placement or accepted it tacitly at a later stage and throughout his stay.", "132. Having regard to the particular circumstances of the present case, especially the involvement of the authorities in the decision to place the applicant in the home and its implementation, the rules on leave of absence, the duration of the placement and the applicant’s lack of consent, the Court concludes that the situation under examination amounts to a deprivation of liberty within the meaning of Article 5 § 1 of the Convention. Accordingly, that provision is applicable.", "C. Whether the applicant’s placement in the Pastra social care home was compatible with Article 5 § 1", "1. The parties’ submissions", "(a) The applicant", "133. The applicant submitted that, since he had not consented to his placement in the Pastra social care home and had not signed the agreement drawn up between his guardian and the home, the agreement was in breach of the Persons and Family Act. He added that he had not been informed of the agreement’s existence at the time of his placement and that he had remained unaware of it for a long time afterwards. Nor had he had any opportunity to challenge this step taken by his guardian. Although the guardian had been required by Article 126 of the FC to report on her activities to the guardianship authority (the mayor), the latter was not empowered to take any action against her. Furthermore, no report had ever been drawn up in respect of the applicant, and his guardians had never been called to account for that shortcoming.", "134. The applicant further argued that his placement in a home for people with mental disorders did not fall within any of the grounds on which deprivation of liberty could be justified for the purposes of Article 5. The measure in question had not been justified by the need to ensure public safety or by the inability of the person concerned to cope outside the institution. In support of that contention, the applicant argued that the Director of the home had deemed him capable of integrating into the community and that attempts had been made to bring him closer to his family, albeit to no avail. Accordingly, the authorities had based their decision to place him in the home on the simple fact that his family were not prepared to take care of him and he needed social assistance. They had not examined whether the necessary assistance could be provided through alternative measures that were less restrictive of his personal liberty. Such measures were, moreover, quite conceivable since Bulgarian legislation made provision for a wide range of social services, such as personal assistance, social rehabilitation centres and special allowances and pensions. The authorities had thus failed to strike a fair balance between the applicant’s social needs and his right to liberty. It would be arbitrary, and contrary to the purpose of Article 5, for detention to be based on purely social considerations.", "135. Should the Court take the view that the placement fell within the scope of Article 5 § 1 (e), by which persons of unsound mind could be deprived of their liberty, the applicant submitted that the national authorities had not satisfied the requirements of that provision. In the absence of a recent psychiatric assessment, it was clear that his placement in the home had not pursued the aim of providing him with medical treatment and had been based solely on medical documents produced in the context of the proceedings for his legal incapacitation. The documents had been issued approximately a year and a half beforehand and had not strictly concerned his placement in an institution for people with mental disorders. Relying on Varbanov v. Bulgaria (no. 31365/96, § 47, ECHR 2000-X), the applicant stated that he had been placed in the Pastra social care home without having undergone any assessment of his mental health at that time.", "(b) The Government", "136. The Government submitted that the applicant’s placement in the home complied with domestic law as the guardian had signed an agreement whereby the applicant was to receive social services in his own interests. She had therefore acted in accordance with her responsibilities and had discharged her duty to protect the person under partial guardianship.", "137. Bearing in mind that the sole purpose of the placement had been to provide the applicant with social services under the Social Assistance Act and not to administer compulsory medical treatment, the Government submitted that this measure was not governed by Article 5 § 1 (e) of the Convention. In that connection, the authorities had taken into account his financial and family situation, that is to say, his lack of resources and the absence of close relatives able to assist him on a day-to-day basis.", "138. The Government noted at the same time that the applicant could in any event be regarded as a “person of unsound mind” within the meaning of Article 5 § 1 (e). The medical assessment carried out during the proceedings for his legal incapacitation in 2000 showed clearly that he was suffering from mental disorders and that it was therefore legitimate for the authorities to place him in an institution for people with similar problems. Lastly, relying on the Ashingdane judgment (cited above, § 44), the Government submitted that there was an adequate link between the reason given for the placement, namely the applicant’s state of health, and the institution in which he had been placed. Accordingly, they contended that the measure in issue had not been in breach of Article 5 § 1 (e).", "(c) The third party", "139. On the basis of the study referred to in paragraphs 112 to 114 above, Interights submitted that in central and east European countries, the placement of mentally disordered persons in a social care home was viewed solely in terms of social protection and was governed by contractual law. Since such placements were not regarded as a form of deprivation of liberty under domestic law, the procedural safeguards available in relation to involuntary psychiatric confinement were not applicable.", "140. Interights contended that situations of this nature were comparable to that examined in H.L. v. the United Kingdom (cited above), in which criticism had been levelled at the system prior to 2007 in the United Kingdom, whereby the common-law doctrine of necessity had permitted the “informal” detention of compliant incapacitated persons with mental disorders. The Court had held that the lack of any fixed procedural rules on the admission and detention of such persons was striking. In its view, the contrast between this dearth of regulation and the extensive network of safeguards applicable to formal psychiatric committals covered by mental-health legislation was significant. In the absence of a formalised admission procedure, indicating who could propose admission, for what reasons and on what basis, and given the lack of indication as to the length of the detention or the nature of treatment or care, the hospital’s health-care professionals had assumed full control of the liberty and treatment of a vulnerable incapacitated person solely on the basis of their own clinical assessments completed as and when they saw fit. While not doubting that those professionals had acted in good faith and in the applicant’s best interests, the Court had observed that the very purpose of procedural safeguards was to protect individuals against any misjudgments and professional lapses (ibid., §§ 120-21).", "141. Interights urged the Court to remain consistent with that approach and to find that in the present case the informal nature of admission to and continued detention in a social care home was at odds with the guarantees against arbitrariness under Article 5. The courts had not been involved at any stage of the proceedings and no other independent body had been assigned the task of monitoring the institutions in question. The lack of regulation coupled with the vulnerability of mentally disordered persons facilitated abuses of fundamental rights in a context of extremely limited supervision.", "142. The third party further submitted that, in most cases of this kind, placements were automatic as there were few possibilities of alternative social assistance. It contended that the authorities should be under a practical obligation to provide for appropriate measures that were less restrictive of personal liberty but were nonetheless capable of ensuring medical care and social services for mentally disordered persons. This would be a means of applying the principle that the rights guaranteed by the Convention should not be theoretical or illusory but practical and effective.", "2. The Court’s assessment", "(a) General principles", "143. The Court reiterates that in order to comply with Article 5 § 1, the detention in issue must first of all be “lawful”, including the observance of a procedure prescribed by law; in this respect the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. It requires in addition, however, that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness (see Herczegfalvy v. Austria, 24 September 1992, § 63, Series A no. 244). Furthermore, the detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is in conformity with national law; it must also be necessary in the circumstances (see Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000-III).", "144. In addition, sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds of deprivation of liberty; such a measure will not be lawful unless it falls within one of those grounds (ibid., § 49; see also, in particular, Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008, and Jendrowiak v. Germany, no. 30060/04, § 31, 14 April 2011).", "145. As regards the deprivation of liberty of mentally disordered persons, an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33; Shtukaturov, cited above, § 114; and Varbanov, cited above, § 45).", "146. As to the second of the above conditions, the detention of a mentally disordered person may be necessary not only where the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him, for example, causing harm to himself or other persons (see Hutchison Reid v. the United Kingdom, no. 50272/99, § 52, ECHR 2003 ‑ IV).", "147. The Court further reiterates that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the “detention” of a person as a mental-health patient will be “lawful” for the purposes of Article 5 § 1 (e) only if effected in a hospital, clinic or other appropriate institution authorised for that purpose (see Ashingdane, cited above, § 44, and Pankiewicz v. Poland, no. 34151/04, §§ 42-45, 12 February 2008). However, subject to the foregoing, Article 5 § 1 (e) is not in principle concerned with suitable treatment or conditions (see Ashingdane, cited above, § 44, and Hutchison Reid, cited above, § 49).", "(b) Application of these principles in the present case", "148. In examining whether the applicant’s placement in the Pastra social care home was lawful for the purposes of Article 5 § 1, the Court must ascertain whether the measure in question complied with domestic law, whether it fell within the scope of one of the exceptions provided for in sub-paragraphs (a) to (f) of Article 5 § 1 to the rule of personal liberty, and, lastly, whether it was justified on the basis of one of those exceptions.", "149. On the basis of the relevant domestic instruments (see paragraphs 57-59 above), the Court notes that Bulgarian law envisages placement in a social care institution as a protective measure taken at the request of the person concerned and not a coercive one ordered on one of the grounds listed in sub-paragraphs (a) to (f) of Article 5 § 1. However, in the particular circumstances of the instant case, the measure in question entailed significant restrictions on personal freedom giving rise to a deprivation of liberty with no regard for the applicant’s will or wishes (see paragraphs 121-32 above).", "150. As to whether a procedure prescribed by law was followed, the Court notes firstly that under domestic law the guardian of a person partially lacking legal capacity is not empowered to take legal steps on that person’s behalf. Any contracts drawn up in such cases are valid only when signed together by the guardian and the person under partial guardianship (see paragraph 42 above). The Court therefore concludes that the decision by the applicant’s guardian R.P. to place him in a social care home for people with mental disorders without having obtained his prior consent was invalid under Bulgarian law. This conclusion is in itself sufficient for the Court to establish that the applicant’s deprivation of liberty was contrary to Article 5.", "151. In any event, the Court considers that that measure was not lawful within the meaning of Article 5 § 1 of the Convention since it was not justified on the basis of any of sub-paragraphs (a) to (f).", "152. The applicant accepted that the authorities had acted mainly on the basis of the arrangements governing social assistance (see paragraph 134 above). However, he argued that the restrictions imposed amounted to a deprivation of liberty which had not been warranted by any of the exceptions provided for in sub-paragraphs (a) to (f) of Article 5 § 1 to the rule of personal liberty. The Government contended that the applicant’s placement in the home had been intended solely to protect his interest in receiving social care (see paragraphs 136-37 above). However, they stated that should the Court decide that Article 5 § 1 was applicable, the measure in question should be held to comply with sub-paragraph (e) in view of the applicant’s mental disorder (see paragraph 138 above).", "153. The Court notes that the applicant was eligible for social assistance as he had no accommodation and was unable to work as a result of his illness. It takes the view that, in certain circumstances, the welfare of a person with mental disorders might be a further factor to take into account, in addition to medical evidence, in assessing whether it is necessary to place the person in an institution. However, the objective need for accommodation and social assistance must not automatically lead to the imposition of measures involving deprivation of liberty. The Court considers that any protective measure should reflect as far as possible the wishes of persons capable of expressing their will. Failure to seek their opinion could give rise to situations of abuse and hamper the exercise of the rights of vulnerable persons. Therefore, any measure taken without prior consultation of the interested person will as a rule require careful scrutiny.", "154. The Court is prepared to accept that the applicant’s placement in the home was the direct consequence of the state of his mental health, the declaration of his partial incapacity and his placement under partial guardianship. Some six days after being appointed as the applicant’s guardian, Ms R.P., without knowing him or meeting him, decided on the strength of the file to ask social services to place him in a home for people with mental disorders. Social services, for their part, likewise referred to the applicant’s mental health in finding that the request should be granted. It seems clear to the Court that if the applicant had not been deprived of legal capacity on account of his mental disorder, he would not have been deprived of his liberty. Therefore, the present case should be examined under sub-paragraph (e) of Article 5 § 1.", "155. It remains to be determined whether the applicant’s placement in the home satisfied the requirements laid down in the Court’s case-law concerning the detention of mentally disordered persons (see the principles outlined in paragraph 145 above). In this connection, the Court reiterates that in deciding whether an individual should be detained as a “person of unsound mind”, the national authorities are to be recognised as having a certain discretion since it is in the first place for them to evaluate the evidence adduced before them in a particular case; the Court’s task is to review under the Convention the decisions of those authorities (see Winterwerp, cited above, § 40, and Luberti v. Italy, 23 February 1984, § 27, Series A no. 75).", "156. In the instant case it is true that the expert medical report produced in the course of the proceedings for the applicant’s legal incapacitation referred to the disorders from which he was suffering. However, the relevant examination took place before November 2000, whereas the applicant was placed in the Pastra social care home on 10 December 2002 (see paragraphs 10 and 14 above). More than two years thus elapsed between the expert psychiatric assessment relied on by the authorities and the applicant’s placement in the home, during which time his guardian did not check whether there had been any change in his condition and did not meet or consult him. Unlike the Government (see paragraph 138 above), the Court considers that this period is excessive and that a medical opinion issued in 2000 cannot be regarded as a reliable reflection of the state of the applicant’s mental health at the time of his placement. It should also be noted that the national authorities were not under any legal obligation to order a psychiatric report at the time of the placement. The Government explained in that connection that the applicable provisions were those of the Social Assistance Act and not those of the Health Act (see paragraphs 57-60 and 137 above). Nevertheless, in the Court’s view, the lack of a recent medical assessment would be sufficient to conclude that the applicant’s placement in the home was not lawful for the purposes of Article 5 § 1 (e).", "157. As a subsidiary consideration, the Court observes that the other requirements of Article 5 § 1 (e) were not satisfied in the present case either. As regards the need to justify the placement by the severity of the disorder, it notes that the purpose of the 2000 medical report was not to examine whether the applicant’s state of health required his placement in a home for people with mental disorders, but solely to determine the issue of his legal protection. While it is true that Article 5 § 1 (e) authorises the confinement of a person suffering from a mental disorder even where no medical treatment is necessarily envisaged (see Hutchison Reid, cited above, § 52), such a measure must be properly justified by the seriousness of the person’s condition in the interests of ensuring his or her own protection or that of others. In the present case, however, it has not been established that the applicant posed a danger to himself or to others, for example because of his psychiatric condition; the simple assertion by certain witnesses that he became aggressive when he drank (see paragraph 10 above) cannot suffice for this purpose. Nor have the authorities reported any acts of violence on the applicant’s part during his time in the Pastra social care home.", "158. The Court also notes deficiencies in the assessment of whether the disorders warranting the applicant’s confinement still persisted. Although he was under the supervision of a psychiatrist (see paragraph 31 above), the aim of such supervision was not to provide an assessment at regular intervals of whether he still needed to be kept in the Pastra social care home for the purposes of Article 5 § 1 (e). Indeed, no provision was made for such an assessment under the relevant legislation.", "159. Having regard to the foregoing, the Court observes that the applicant’s placement in the home was not ordered “in accordance with a procedure prescribed by law” and that his deprivation of liberty was not justified by sub-paragraph (e) of Article 5 § 1. Furthermore, the Government have not indicated any of the other grounds listed in sub-paragraphs (a) to (f) which might have justified the deprivation of liberty in issue in the present case.", "160. There has therefore been a violation of Article 5 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION", "161. The applicant complained that he had been unable to have the lawfulness of his placement in the Pastra social care home reviewed by a court.", "He relied on Article 5 § 4 of the Convention, which provides:", "“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”", "A. The parties’ submissions", "1. The applicant", "162. The applicant submitted that domestic law did not provide for any specific remedies in respect of his situation, such as a periodic judicial review of the lawfulness of his placement in a home for people with mental disorders. He added that, since he was deemed incapable of taking legal action on his own, domestic law did not afford him the possibility of applying to a court for permission to leave the Pastra social care home. He stated that he had likewise been unable to seek to have the placement agreement terminated, in view of the conflict of interests with his guardian, who at the same time was the Director of the home.", "163. The applicant further noted that he had not been allowed to apply to the courts to initiate the procedure provided for in Article 277 of the CCP (see paragraph 51 above) and that, moreover, such action would not have led to a review of the lawfulness of his deprivation of liberty but solely to a review of the conditions justifying partial guardianship in his case.", "164. He further submitted that the procedure provided for in Articles 113 and 115 of the FC (see paragraphs 49-50 above) in theory afforded his close relatives the right to ask the mayor to replace the guardian or to compel the mayor to terminate the placement agreement. However, this had been an indirect remedy not accessible to him, since his half-sister and his father’s second wife had not been willing to initiate such a procedure.", "2. The Government", "165. The Government submitted that, since the purpose of the applicant’s placement in the home had been to provide social services, he could at any time have asked for the placement agreement to be terminated without the courts needing to be involved. In their submission, in so far as the applicant alleged a conflict of interests with his guardian, he could have relied on Article 123 § 1 of the FC (see paragraph 50 above) and requested the guardianship authority to appoint an ad hoc representative, who could then have consented to a change of permanent residence.", "166. The Government further contended that the applicant’s close relatives had not availed themselves of the possibility open to some of them under Articles 113 and 115 of the FC of requesting the guardianship authority to replace his guardian or of challenging steps taken by the latter. They added that in the event of a refusal, his relatives could have appealed to a court, which would have considered the merits of the case and, if appropriate, appointed a new guardian, who could then have terminated the placement agreement. This, in the Government’s submission, would have enabled them to challenge in substance the agreement signed between Ms R.P. and the Pastra social care home.", "167. Lastly, the Government submitted that an action for restoration of legal capacity (under Article 277 of the CCP – see paragraph 51 above) constituted a remedy for the purposes of Article 5 § 4 since, if a sufficient improvement in the applicant’s health had been observed and he had been released from guardianship, he would have been free to leave the home.", "B. The Court’s assessment", "1. General principles", "168. The Court reiterates that Article 5 § 4 entitles detained persons to institute proceedings for a review of compliance with the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty. The notion of “lawfulness” under paragraph 4 of Article 5 has the same meaning as in paragraph 1, so that a detained person is entitled to a review of the “lawfulness” of his detention in the light not only of the requirements of domestic law but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the “lawful” detention of a person according to Article 5 § 1 (see E. v. Norway, 29 August 1990, § 50, Series A no. 181-A). The reviewing “court” must not have merely advisory functions but must have the competence to “decide” the “lawfulness” of the detention and to order release if the detention is unlawful (see Ireland v. the United Kingdom, 18 January 1978, § 200, Series A no. 25; Weeks v. the United Kingdom, 2 March 1987, § 61, Series A no. 114; Chahal v. the United Kingdom, 15 November 1996, § 130, Reports of Judgments and Decisions 1996 ‑ V; and A. and Others v. the United Kingdom [GC], no. 3455/05, § 202, ECHR 2009).", "169. The forms of judicial review satisfying the requirements of Article 5 § 4 may vary from one domain to another, and will depend on the type of deprivation of liberty in issue. It is not the Court’s task to inquire into what would be the most appropriate system in the sphere under examination (see Shtukaturov, cited above, § 123).", "170. Nevertheless, Article 5 § 4 guarantees a remedy that must be accessible to the person concerned and must afford the possibility of reviewing compliance with the conditions to be satisfied if the detention of a person of unsound mind is to be regarded as “lawful” for the purposes of Article 5 § 1 (e) (see Ashingdane, cited above, § 52). The Convention requirement for an act of deprivation of liberty to be amenable to independent judicial scrutiny is of fundamental importance in the context of the underlying purpose of Article 5 of the Convention to provide safeguards against arbitrariness. What is at stake is both the protection of the physical liberty of individuals and their personal security (see Varbanov, cited above, § 58). In the case of detention on the ground of mental illness, special procedural safeguards may be called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves (see, among other authorities, Winterwerp, cited above, § 60).", "171. Among the principles emerging from the Court’s case-law under Article 5 § 4 concerning “persons of unsound mind” are the following:", "(a) a person detained for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings “at reasonable intervals” before a court to put in issue the “lawfulness” – within the meaning of the Convention – of his detention;", "(b) Article 5 § 4 requires the procedure followed to have a judicial character and to afford the individual concerned guarantees appropriate to the kind of deprivation of liberty in question; in order to determine whether proceedings provide adequate guarantees, regard must be had to the particular nature of the circumstances in which they take place;", "(c) the judicial proceedings referred to in Article 5 § 4 need not always be attended by the same guarantees as those required under Article 6 § 1 for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation (see Megyeri v. Germany, 12 May 1992, § 22, Series A no. 237-A).", "2. Application of these principles in the present case", "172. The Court observes that the Government have not indicated any domestic remedy capable of affording the applicant the direct opportunity to challenge the lawfulness of his placement in the Pastra social care home and the continued implementation of that measure. It also notes that the Bulgarian courts were not involved at any time or in any way in the placement and that the domestic legislation does not provide for automatic periodic judicial review of placement in a home for people with mental disorders. Furthermore, since the applicant’s placement in the home is not recognised as a deprivation of liberty in Bulgarian law (see paragraph 58 above), there is no provision for any domestic legal remedies by which to challenge its lawfulness in terms of a deprivation of liberty. In addition, the Court notes that, according to the domestic courts’ practice, the validity of the placement agreement could have been challenged on the ground of lack of consent only on the guardian’s initiative (see paragraph 54 above).", "173. In so far as the Government referred to the procedure for restoration of legal capacity under Article 277 of the CCP (see paragraph 167 above), the Court notes that the purpose of this procedure would not have been to examine the lawfulness of the applicant’s placement per se, but solely to review his legal status (see paragraphs 233-46 below). The Government also referred to the procedures for reviewing steps taken by the guardian (see paragraphs 165-66 above). The Court considers it necessary to determine whether such remedies could have given rise to a judicial review of the lawfulness of the placement as required by Article 5 § 4.", "174. In this connection, it notes that the 1985 FC entitled close relatives of a person under partial guardianship to challenge decisions by the guardianship authority, which in turn was required to review steps taken by the guardian – including the placement agreement – and to replace the latter in the event of failure to discharge his or her duties (see paragraphs 48-50 above). However, the Court notes that those remedies were not directly accessible to the applicant. Moreover, none of the persons theoretically entitled to make use of them displayed any intention of acting in Mr Stanev’s interests, and he himself was unable to act on his own initiative without their approval.", "175. It is uncertain whether the applicant could have requested the mayor to demand explanations from the guardian or to suspend the implementation of the placement agreement on the ground that it was invalid. In any event, it appears that since he had been partially deprived of legal capacity, the law did not entitle him to apply of his own motion to the courts to challenge steps taken by the mayor (see paragraph 49 above); this was not disputed by the Government.", "176. The same conclusion applies as regards the possibility for the applicant to ask the mayor to replace his guardian temporarily with an ad hoc representative on the basis of an alleged conflict of interests and then to apply for the termination of the placement agreement. The Court observes in this connection that the mayor has discretion to determine whether there is a conflict of interests (see paragraph 50 above). Lastly, it does not appear that the applicant could have applied of his own motion to the courts for a review on the merits in the event of the mayor’s refusal to take such action.", "177. The Court therefore concludes that the remedies referred to by the Government were either inaccessible to the applicant or were not judicial in nature. Furthermore, none of them can give rise to a direct review of the lawfulness of the applicant’s placement in the Pastra social care home in terms of domestic law and the Convention.", "178. Having regard to those considerations, the Court dismisses the Government’s objection of failure to exhaust domestic remedies (see paragraphs 97-99 above) and finds that there has been a violation of Article 5 § 4 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION", "179. The applicant submitted that he had not been entitled to compensation for the alleged violations of his rights under Article 5 §§ 1 and 4 of the Convention.", "He relied on Article 5 § 5, which provides:", "“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”", "A. The parties’ submissions", "180. The applicant submitted that the circumstances in which unlawful detention could give rise to compensation were exhaustively listed in the State Responsibility for Damage Act 1988 (see paragraphs 62-67 above) and that his own situation was not covered by any of them. He further complained that there were no legal remedies by which compensation could be claimed for a violation of Article 5 § 4.", "181. The Government maintained that the compensation procedure under the 1988 Act could have been initiated if the applicant’s placement in the home had been found to have no legal basis. Since the placement had been found to be consistent with domestic law and with his own interests, he had not been able to initiate the procedure in question.", "B. The Court’s assessment", "182. The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (see Wassink v. the Netherlands, 27 September 1990, § 38, Series A no. 185-A, and Houtman and Meeus v. Belgium, no. 22945/07, § 43, 17 March 2009). The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Convention institutions. In this connection, the effective enjoyment of the right to compensation guaranteed by Article 5 § 5 must be ensured with a sufficient degree of certainty (see Ciulla v. Italy, 22 February 1989, § 44, Series A no. 148; Sakık and Others v. Turkey, 26 November 1997, § 60, Reports 1997-VII; and N.C. v. Italy [GC], no. 24952/94, § 49, ECHR 2002-X).", "183. Turning to the present case, the Court observes that, regard being had to its finding of a violation of paragraphs 1 and 4 of Article 5, paragraph 5 is applicable. It must therefore ascertain whether, prior to the present judgment, the applicant had an enforceable right at domestic level to compensation for damage, or whether he will have such a right following the adoption of this judgment.", "184. The Court reiterates in this connection that in order to find a violation of Article 5 § 5, it has to establish that the finding of a violation of one of the other paragraphs of Article 5 could not give rise, either before or after the Court’s judgment, to an enforceable claim for compensation before the domestic courts (see Brogan and Others v. the United Kingdom, 29 November 1988, §§ 66-67, Series A no. 145-B).", "185. Having regard to the case-law cited above, the Court considers that it must first be determined whether the violation of Article 5 §§ 1 and 4 found in the present case could have given rise, before the delivery of this judgment, to an entitlement to compensation before the domestic courts.", "186. As regards the violation of Article 5 § 1, the Court observes that section 2(1) of the State Responsibility for Damage Act 1988 provides for compensation for damage resulting from a judicial decision ordering certain types of detention where the decision has been set aside as having no legal basis (see paragraph 62 above). However, that was not the case in this instance. It appears from the case file that the Bulgarian judicial authorities have not at any stage found the measure to have been unlawful or otherwise in breach of Article 5 of the Convention. Moreover, the Government’s line of argument has been that the applicant’s placement in the home was in accordance with domestic law. The Court therefore concludes that the applicant was unable to claim any compensation under the above-mentioned provision in the absence of an acknowledgment by the national authorities that the placement was unlawful.", "187. As to the possibility under section 1 of the same Act of claiming compensation for damage resulting from unlawful acts by the authorities (see paragraph 63 above), the Court observes that the Government have not produced any domestic decisions indicating that that provision is applicable to cases involving the placement of people with mental disorders in social care homes on the basis of civil-law agreements.", "188. Furthermore, since no judicial remedy by which to review the lawfulness of the placement was available under Bulgarian law, the applicant could not have invoked State liability as a basis for receiving compensation for the violation of Article 5 § 4.", "189. The question then arises whether the judgment in the present case, in which violations of paragraphs 1 and 4 of Article 5 have been found, will entitle the applicant to claim compensation under Bulgarian law. The Court observes that it does not appear from the relevant legislation that any such remedy exists; nor, indeed, have the Government submitted any arguments to prove the contrary.", "190. It has therefore not been shown the applicant was able to avail himself prior to the Court’s judgment in the present case, or will be able to do so after its delivery, of a right to compensation for the violation of Article 5 §§ 1 and 4.", "191. There has therefore been a violation of Article 5 § 5.", "IV. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 13", "192. The applicant complained that the living conditions in the Pastra social care home were poor and that no effective remedy was available under Bulgarian law in respect of that complaint. He relied on Article 3 of the Convention taken alone and in conjunction with Article 13. These provisions are worded as follows:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 13", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. Preliminary objection of failure to exhaust domestic remedies", "193. In their memorial before the Grand Chamber, the Government for the first time raised an objection of failure to exhaust domestic remedies in respect of the complaint under Article 3 of the Convention. They submitted that the applicant could have obtained compensation for the living conditions in the home by bringing an action under the State Responsibility for Damage Act 1988.", "194. The Court reiterates that, in accordance with Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see N.C. v. Italy, cited above, § 44). Where an objection of failure to exhaust domestic remedies is raised out of time for the purposes of Rule 55, an estoppel arises and the objection must accordingly be dismissed (see Velikova v. Bulgaria, no. 41488/98, § 57, ECHR 2000-VI, and Tanrıbilir v. Turkey, no. 21422/93, § 59, 16 November 2000).", "195. In the present case the Government have not cited any circumstances justifying their failure to raise the objection in question at the time of the Chamber’s examination of the admissibility of the case.", "196. That being so, the Court observes that the Government are estopped from raising this objection, which must accordingly be dismissed.", "B. Merits of the complaint under Article 3 of the Convention", "1. The parties’ submissions", "197. The applicant submitted that the poor living conditions in the Pastra social care home, in particular the inadequate food, the deplorable sanitary conditions, the lack of heating, the enforced medical treatment, the overcrowded bedrooms and the absence of therapeutic and cultural activities, amounted to treatment prohibited by Article 3.", "198. He observed that the Government had already acknowledged in 2004 that such living conditions did not comply with the relevant European standards and had undertaken to make improvements (see paragraph 82 above). However, the conditions had remained unchanged, at least until late 2009.", "199. In their observations before the Chamber, the Government acknowledged the deficiencies in the living conditions at the home. They explained that the inadequate financial resources set aside for institutions of this kind formed the main obstacle to ensuring the requisite minimum standard of living. They also stated that, following an inspection by the Social Assistance Agency, the authorities had resolved to close the Pastra social care home and to take steps to improve living conditions for its residents. In the Government’s submission, since the living conditions were the same for all the home’s residents and there had been no intention to inflict ill-treatment, the applicant had not been subjected to degrading treatment.", "200. Before the Grand Chamber the Government stated that renovation work had been carried out in late 2009 in the part of the home where the applicant lived (see paragraph 24 above).", "2. The Court’s assessment", "(a) General principles", "201. Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 90, ECHR 2000-XI, and Poltoratskiy v. Ukraine, no. 38812/97, § 130, ECHR 2003-V).", "202. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see Kudła, cited above, § 91, and Poltoratskiy, cited above, § 131).", "203. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV). Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance or driving them to act against their will or conscience (see Jalloh v. Germany [GC], no. 54810/00, § 68, ECHR 2006-IX). In this connection, the question whether such treatment was intended to humiliate or debase the victim is a factor to be taken into account, although the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 (see Peers v. Greece, no. 28524/95, §§ 67, 68 and 74, ECHR 2001-III, and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI).", "204. The suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. Yet it cannot be said that deprivation of liberty in itself raises an issue under Article 3 of the Convention. Nevertheless, under that Article the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (see Kudła, cited above, §§ 92-94).", "205. When assessing the conditions of a deprivation of liberty under Article 3 of the Convention, account has to be taken of their cumulative effects and the duration of the measure in question (see Kalashnikov, cited above, §§ 95 and 102; Kehayov v. Bulgaria, no. 41035/98, § 64, 18 January 2005; and Iovchev v. Bulgaria, no. 41211/98, § 127, 2 February 2006). In this connection an important factor to take into account, besides the material conditions, is the detention regime. In assessing whether a restrictive regime may amount to treatment contrary to Article 3 in a given case, regard must be had to the particular conditions, the stringency of the regime, its duration, the objective pursued and its effects on the person concerned (see Kehayov, cited above, § 65).", "(b) Application of these principles in the present case", "206. In the present case the Court has found that the applicant’s placement in the Pastra social care home – a situation for which the domestic authorities must be held responsible – amounts to a deprivation of liberty within the meaning of Article 5 of the Convention (see paragraph 132 above). It follows that Article 3 is applicable to the applicant’s situation, seeing that it prohibits the inhuman and degrading treatment of anyone in the care of the authorities. The Court would emphasise that the prohibition of ill-treatment in Article 3 applies equally to all forms of deprivation of liberty, and in particular makes no distinction according to the purpose of the measure in issue; it is immaterial whether the measure entails detention ordered in the context of criminal proceedings or admission to an institution with the aim of protecting the life or health of the person concerned.", "207. The Court notes at the outset that, according to the Government, the building in which the applicant lives was renovated in late 2009, resulting in an improvement in his living conditions (see paragraph 200 above); the applicant did not dispute this. The Court therefore considers that the applicant’s complaint should be taken to refer to the period between 2002 and 2009. The Government have not denied that during that period the applicant’s living conditions corresponded to his description, and have also acknowledged that, for economic reasons, there were certain deficiencies in that regard (see paragraphs 198-99 above).", "208. The Court observes that although the applicant shared a room measuring 16 sq. m with four other residents, he enjoyed considerable freedom of movement both inside and outside the home, a fact likely to lessen the adverse effects of a limited sleeping area (see Valašinas v. Lithuania, no. 44558/98, § 103, ECHR 2001-VIII).", "209. Nevertheless, other aspects of the applicant’s physical living conditions are a considerable cause for concern. In particular, it appears that the food was insufficient and of poor quality. The building was inadequately heated and in winter the applicant had to sleep in his coat. He was able to have a shower once a week in an unhygienic and dilapidated bathroom. The toilets were in an execrable state and access to them was dangerous, according to the findings by the CPT (see paragraphs 21, 22, 23, 78 and 79 above). In addition, the home did not return clothes to the same people after they were washed (see paragraph 21 above), which was likely to arouse a feeling of inferiority in the residents.", "210. The Court cannot overlook the fact that the applicant was exposed to all the above-mentioned conditions for a considerable period of approximately seven years. Nor can it ignore the findings of the CPT, which, after visiting the home, concluded that the living conditions there at the relevant time could be said to amount to inhuman and degrading treatment. Despite being aware of those findings, during the period from 2002 to 2009 the Government did not act on their undertaking to close down the institution (see paragraph 82 above). The Court considers that the lack of financial resources cited by the Government is not a relevant argument to justify keeping the applicant in the living conditions described (see Poltoratskiy, cited above, § 148).", "211. It would nevertheless emphasise that there is no suggestion that the national authorities deliberately intended to inflict degrading treatment. However, as noted above (see paragraph 203), the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3.", "212. In conclusion, while noting the improvements apparently made to the Pastra social care home since late 2009, the Court considers that, taken as a whole, the living conditions to which the applicant was exposed during a period of approximately seven years amounted to degrading treatment.", "213. There has therefore been a violation of Article 3 of the Convention.", "C. Merits of the complaint under Article 13 taken in conjunction with Article 3", "1. The parties’ submissions", "214. The applicant submitted that no domestic remedies, including the claim for compensation envisaged in the State Responsibility for Damage Act 1988, had been accessible to him without his guardian’s consent. He pointed out in that connection that he had not had a guardian for a period of more than two years, between the end of Ms R.P.’s designated term on 31 December 2002 (see paragraph 12 above) and the appointment of a new guardian on 2 February 2005 (see paragraph 17 above). Moreover, his new guardian was also the Director of the social care home. There would therefore have been a conflict of interests between the applicant and his guardian in the event of any dispute concerning the living conditions at the home, and the applicant could not have expected the guardian to support his allegations.", "215. In the Government’s submission, an action for restoration of legal capacity (see paragraphs 51-52 above) constituted a remedy by which the applicant could have secured a review of his status and, in the event of being released from partial guardianship, he could have left the social care home and ceased to endure the living conditions about which he complained.", "216. The Government added that the applicant could have complained directly about the living conditions at the Pastra social care home by bringing an action under section 1 of the State Responsibility for Damage Act 1988 (see paragraphs 62-67 above).", "2. The Court’s assessment", "217. The Court refers to its settled case-law to the effect that Article 13 guarantees the existence of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law (see McGlinchey and Others v. the United Kingdom, no. 50390/99, § 62, ECHR 2003 ‑ V).", "218. Where, as in the present case, the Court has found a breach of Article 3, compensation for the non-pecuniary damage flowing from the breach should in principle be part of the range of available remedies (ibid., § 63; and Iovchev, cited above, § 143).", "219. In the instant case the Court observes that section 1(1) of the State Responsibility for Damage Act 1988 has indeed been interpreted by the domestic courts as being applicable to damage suffered by prisoners as a result of poor detention conditions (see paragraphs 63-64 above). However, according to the Government’s submissions, the applicant’s placement in the Pastra social care home is not regarded as detention under domestic law (see paragraphs 108-11 above). Therefore, he would not have been entitled to compensation for the poor living conditions in the home. Moreover, there are no judicial precedents in which this provision has been found to apply to allegations of poor conditions in social care homes (see paragraph 65 above), and the Government have not adduced any arguments to prove the contrary. Having regard to those considerations, the Court concludes that the remedies in question were not effective within the meaning of Article 13.", "220. As to the Government’s reference to the procedure for restoration of legal capacity (see paragraph 215 above), the Court considers that, even assuming that as a result of that remedy the applicant had been able to have his legal capacity restored and to leave the home, he would not have been awarded any compensation for his treatment during his placement there. Accordingly, the remedy in question did not afford appropriate redress.", "221. There has therefore been a violation of Article 13 of the Convention taken in conjunction with Article 3.", "V. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "222. The applicant alleged that Bulgarian law had not afforded him the possibility of applying to a court for restoration of his legal capacity. He relied on Article 6 § 1 of the Convention, the relevant parts of which read:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "A. Preliminary remarks", "223. The Grand Chamber observes that the Government have maintained before it the objection they raised before the Chamber alleging failure to exhaust domestic remedies. The objection was based on Article 277 of the CCP, which, according to the Government, entitled the applicant to apply personally to the courts for restoration of his legal capacity.", "224. The Grand Chamber notes that in its admissibility decision of 29 June 2010 the Chamber observed that the applicant disputed the accessibility of the remedy which, according to the Government, would have enabled him to obtain a review of his legal status and that that argument underpinned his complaint under Article 6 § 1. The Chamber thus joined the Government’s objection to its examination of the merits of the complaint in question. The Grand Chamber sees no reason to depart from the Chamber’s conclusion.", "B. Merits", "1. The parties’ submissions", "225. The applicant maintained that he had been unable personally to institute proceedings for restoration of his legal capacity under Article 277 of the CCP and that this was borne out by the Supreme Court’s decision no. 5/79 (see paragraph 51 above). In support of that argument, he submitted that the Dupnitsa District Court had declined to examine his application for judicial review of the mayor’s refusal to bring such proceedings, on the ground that the guardian had not countersigned the form of authority (see paragraphs 39-40 above).", "226. In addition, although an action for restoration of legal capacity had not been accessible to him, the applicant had attempted to bring such an action through the public prosecutor’s office, the mayor and his guardian (the Director of the home). However, since no application to that end had been lodged with the courts, all his attempts had failed. Accordingly, the applicant had never had the opportunity to have his case heard by a court.", "227. The Government submitted that Article 277 of the CCP had offered the applicant direct access to a court at any time to have his legal status reviewed. They pointed out that, contrary to what the applicant alleged, the Supreme Court’s decision no. 5/79 had interpreted Article 277 of the CCP as meaning that persons partially deprived of legal capacity could apply directly to the courts to be released from guardianship. The only condition for making such an application was the production of evidence of an improvement in their condition. However, as was indicated by the medical assessment carried out at the public prosecutor’s request (see paragraph 37 above), which had concluded that the applicant’s condition still persisted and that he was incapable of looking after his own interests, it was clear that the applicant had not had any such evidence available. The Government thus concluded that the applicant had not attempted to apply to the court on his own because he had been unable to substantiate his application.", "228. The Government further observed that the courts regularly considered applications for restoration of legal capacity submitted, for example, by a guardian (see paragraph 52 above).", "2. The Court’s assessment", "(a) General principles", "229. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18). This “right to a court”, of which the right of access is an aspect, may be relied on by anyone who considers on arguable grounds that an interference with the exercise of his or her civil rights is unlawful and complains that no possibility was afforded to submit that claim to a court meeting the requirements of Article 6 § 1 (see, inter alia, Roche v. the United Kingdom [GC], no. 32555/96, § 117, ECHR 2005-X, and Salontaji-Drobnjak v. Serbia, no. 36500/05, § 132, 13 October 2009).", "230. The right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access “by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals” (see Ashingdane, cited above, § 57). In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (ibid.; see also, among many other authorities, Cordova v. Italy, no. 40877/98, § 54, ECHR 2003-I, and the recapitulation of the relevant principles in Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294-B).", "231. Furthermore, the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly true for the guarantees enshrined in Article 6, in view of the prominent place held in a democratic society by the right to a fair trial with all the guarantees under that Article (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 45, ECHR 2001-VIII).", "232. Lastly, the Court observes that in most of the cases before it involving “persons of unsound mind”, the domestic proceedings have concerned their detention and were thus examined under Article 5 of the Convention. However, it has consistently held that the “procedural” guarantees under Article 5 §§ 1 and 4 of the Convention are broadly similar to those under Article 6 § 1 (see, for instance, Winterwerp, cited above, § 60; Sanchez-Reisse v. Switzerland, 21 October 1986, §§ 51 and 55, Series A no. 107; Kampanis v. Greece, 13 July 1995, § 47, Series A no. 318-B; and Ilijkov v. Bulgaria, no. 33977/96, § 103, 26 July 2001). In the Shtukaturov case (cited above, § 66), in determining whether or not the incapacitation proceedings had been fair, the Court had regard, mutatis mutandis, to its case-law under Article 5 §§ 1 (e) and 4 of the Convention.", "(b) Application of these principles in the present case", "233. The Court observes at the outset that in the present case none of the parties disputed the applicability of Article 6 to proceedings for restoration of legal capacity. The applicant, who has been partially deprived of legal capacity, complained that Bulgarian law did not afford him direct access to a court to apply to have his capacity restored. The Court has had occasion to clarify that proceedings for restoration of legal capacity are directly decisive for the determination of “civil rights and obligations” (see Matter v. Slovakia, no. 31534/96, § 51, 5 July 1999). Article 6 § 1 of the Convention is therefore applicable in the instant case.", "234. It remains to be determined whether the applicant’s access to court was restricted and, if so, whether the restriction pursued a legitimate aim and was proportionate to it.", "235. The Court notes firstly that the parties differed as to whether a legally incapacitated person had locus standi to apply directly to the Bulgarian courts for restoration of legal capacity; the Government argued that this was the case, whereas the applicant maintained the contrary.", "236. The Court accepts the applicant’s argument that, in order to make an application to a Bulgarian court, a person under partial guardianship is required to seek the support of the persons referred to in Article 277 of the 1952 CCP (which has become Article 340 of the 2007 CCP). The list of persons entitled to apply to the courts under Bulgarian law does not explicitly include a person under partial guardianship (see paragraphs 45 and 51 above).", "237. With regard to the Supreme Court’s 1980 decision (see paragraph 51 above), the Court observes that, although the fourth sentence of paragraph 10 of the decision, read in isolation, might give the impression that a person under partial guardianship has direct access to a court, the Supreme Court explains further on that, where the guardian of a partially incapacitated person and the guardianship authority refuse to institute proceedings for restoration of legal capacity, the person concerned may request the public prosecutor to do so. In the Court’s view, the need to seek the intervention of the public prosecutor is scarcely reconcilable with direct access to court for persons under partial guardianship in so far as the decision to intervene is left to the prosecutor’s discretion. It follows that the Supreme Court’s 1980 decision cannot be said to have clearly affirmed the existence of such access in Bulgarian law.", "238. The Court further notes that the Government have not produced any court decisions showing that persons under partial guardianship have been able to apply of their own motion to a court to have the measure lifted; however, they have shown that at least one application for restoration of legal capacity has been successfully brought by the guardian of a fully incapacitated person (see paragraph 52 above).", "239. The Court thus considers it established that the applicant was unable to apply for restoration of his legal capacity other than through his guardian or one of the persons listed in Article 277 of the CCP.", "240. The Court would also emphasise that, as far as access to court is concerned, domestic law makes no distinction between those who are entirely deprived of legal capacity and those who, like the applicant, are only partially incapacitated. Moreover, domestic legislation does not provide for any possibility of automatic periodic review of whether the grounds for placing a person under guardianship remain valid. Lastly, in the applicant’s case the measure in question was not limited in time.", "241. Admittedly, the right of access to the courts is not absolute and requires by its very nature that the State should enjoy a certain margin of appreciation in regulating the sphere under examination (see Ashingdane, cited above, § 57). In addition, the Court acknowledges that restrictions on a person’s procedural rights, even where the person has been only partially deprived of legal capacity, may be justified for the person’s own protection, the protection of the interests of others and the proper administration of justice. However, the importance of exercising these rights will vary according to the purpose of the action which the person concerned intends to bring before the courts. In particular, the right to ask a court to review a declaration of incapacity is one of the most important rights for the person concerned since such a procedure, once initiated, will be decisive for the exercise of all the rights and freedoms affected by the declaration of incapacity, not least in relation to any restrictions that may be placed on the person’s liberty (see also Shtukaturov, cited above, § 71). The Court therefore considers that this right is one of the fundamental procedural rights for the protection of those who have been partially deprived of legal capacity. It follows that such persons should in principle enjoy direct access to the courts in this sphere.", "242. However, the State remains free to determine the procedure by which such direct access is to be realised. At the same time, the Court considers that it would not be incompatible with Article 6 for national legislation to provide for certain restrictions on access to court in this sphere, with the sole aim of ensuring that the courts are not overburdened with excessive and manifestly ill-founded applications. Nevertheless, it seems clear that this problem may be solved by other, less restrictive means than automatic denial of direct access, for example by limiting the frequency with which applications may be made or introducing a system for prior examination of their admissibility on the basis of the file.", "243. The Court further observes that eighteen of the twenty national legal systems studied in this context provide for direct access to the courts for any partially incapacitated persons wishing to have their status reviewed. In seventeen States such access is open even to those declared fully incapable (see paragraphs 88-90 above). This indicates that there is now a trend at European level towards granting legally incapacitated persons direct access to the courts to seek restoration of their capacity.", "244. The Court is also obliged to note the growing importance which international instruments for the protection of people with mental disorders are now attaching to granting them as much legal autonomy as possible. It refers in this connection to the United Nations Convention of 13 December 2006 on the Rights of Persons with Disabilities and to Recommendation No. R (99) 4 of the Committee of Ministers of the Council of Europe on principles concerning the legal protection of incapable adults, which recommend that adequate procedural safeguards be put in place to protect legally incapacitated persons to the greatest extent possible, to ensure periodic reviews of their status and to make appropriate remedies available (see paragraphs 72-73 above).", "245. In the light of the foregoing, in particular the trends emerging in national legislation and the relevant international instruments, the Court considers that Article 6 § 1 of the Convention must be interpreted as guaranteeing in principle that anyone who has been declared partially incapable, as is the applicant’s case, has direct access to a court to seek restoration of his or her legal capacity.", "246. In the instant case the Court has observed that direct access of this kind is not guaranteed with a sufficient degree of certainty by the relevant Bulgarian legislation. That finding is sufficient for it to conclude that there has been a violation of Article 6 § 1 of the Convention in respect of the applicant.", "247. The above conclusion dispenses the Court from examining whether the indirect legal remedies referred to by the Government provided the applicant with sufficient guarantees that his case would be brought before a court.", "248. The Court therefore dismisses the Government’s objection of failure to exhaust domestic remedies (see paragraph 223 above) and concludes that there has been a violation of Article 6 § 1 of the Convention.", "VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 13", "249. The applicant alleged that the restrictive guardianship regime, including his placement in the Pastra social care home and the physical living conditions there, had amounted to unjustified interference with his right to respect for his private life and home. He submitted that Bulgarian law had not afforded him a sufficient and accessible remedy in that respect. He relied on Article 8 of the Convention taken alone and in conjunction with Article 13.", "Article 8 provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "250. The applicant maintained in particular that the guardianship regime had not been geared to his individual case but had entailed restrictions automatically imposed on anyone who had been declared incapable by a judge. He added that the fact of having to live in the Pastra social care home had effectively barred him from taking part in community life and from developing relations with persons of his choosing. The authorities had not attempted to find alternative therapeutic solutions in the community or to take measures that were less restrictive of his personal liberty, with the result that he had developed “institutionalisation syndrome”, that is, the loss of social skills and individual personality traits.", "251. The Government contested those allegations.", "252. Having regard to its conclusions under Articles 3, 5, 6 and 13 of the Convention, the Court considers that no separate issue arises under Article 8 of the Convention taken alone and/or in conjunction with Article 13. It is therefore unnecessary to examine this complaint.", "VII. ARTICLES 46 AND 41 OF THE CONVENTION", "A. Article 46 of the Convention", "253. The relevant parts of Article 46 of the Convention read as follows:", "“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.", "2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”", "254. The Court reiterates that by Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects (see Menteş and Others v. Turkey (Article 50), 24 July 1998, § 24, Reports 1998-IV; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; and Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004-I). The Court further notes that it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order to discharge its obligation under Article 46 of the Convention (see Scozzari and Giunta, cited above; Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I; and Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005-IV).", "255. However, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V, and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 148, 17 September 2009).", "256. In the instant case the Court considers that it is necessary, in view of its finding of a violation of Article 5, to indicate individual measures for the execution of this judgment. It observes that it has found a violation of that Article on account of the failure to comply with the requirement that any deprivation of liberty must be “in accordance with a procedure prescribed by law” and the lack of justification for the applicant’s deprivation of liberty under sub-paragraph (e) or any of the other sub-paragraphs of Article 5 § 1. It has also noted deficiencies in the assessment of the presence and persistence of any disorders warranting placement in a social care home (see paragraphs 148-60 above).", "257. The Court considers that in order to redress the effects of the breach of the applicant’s rights, the authorities should ascertain whether he wishes to remain in the home in question. Nothing in this judgment should be seen as an obstacle to his continued placement in the Pastra social care home or any other home for people with mental disorders if it is established that he consents to the placement. However, should the applicant object to such placement, the authorities should re-examine his situation without delay in the light of the findings of this judgment.", "258. The Court notes that it has also found a violation of Article 6 § 1 on account of the lack of direct access to a court for a person who has been partially deprived of legal capacity with a view to seeking its restoration (see paragraphs 233-48 above). Having regard to that finding, the Court recommends that the respondent State envisage the necessary general measures to ensure the effective possibility of such access.", "B. Article 41 of the Convention", "259. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "1. Damage", "260. The applicant did not submit any claims in respect of pecuniary damage but sought 64,000 euros (EUR) for non-pecuniary damage.", "261. He asserted in particular that he had endured poor living conditions in the social care home and claimed a sum of EUR 14,000 on that account. In respect of his placement in the Pastra social care home, he stated that he had experienced feelings of anxiety, distress and frustration ever since that measure had begun to be implemented in December 2002. His enforced placement in the home had also had a significant impact on his life as he had been removed from his social environment and subjected to a very restrictive regime, making it harder for him to reintegrate into the community. He submitted that although there was no comparable case-law concerning unlawful detention in a social care home for people with mental disorders, regard should be had to the just satisfaction awarded by the Court in cases involving unlawful detention in psychiatric institutions. He referred, for example, to the judgments in Gajcsi v. Hungary (no. 34503/03, §§ 28-30, 3 October 2006) and Kayadjieva v. Bulgaria (no. 56272/00, § 57, 28 September 2006), while noting that he had been deprived of his liberty for a considerably longer period than the applicants in the above-mentioned cases. He submitted that a sum of EUR 30,000 would constitute an equitable award on that account. Lastly, he added that his lack of access to the courts to seek a review of his legal status had restricted the exercise of a number of freedoms in the sphere of his private life, causing additional non-pecuniary damage, for which an award of EUR 20,000 could provide redress.", "262. The Government submitted that the applicant’s claims were excessive and unfounded. They argued that if the Court were to make any award in respect of non-pecuniary damage, it should not exceed the amounts awarded in judgments against Bulgaria concerning compulsory psychiatric admission. The Government referred to the judgments in Kayadjieva (cited above, § 57), Varbanov (cited above, § 67), and Kepenerov v. Bulgaria (no. 39269/98, § 42, 31 July 2003).", "263. The Court observes that it has found violations of several provisions of the Convention in the present case, namely Articles 3, 5 (§§ 1, 4 and 5), 6 and 13. It considers that the applicant must have endured suffering as a result of his placement in the home, which began in December 2002 and is still ongoing, his inability to secure a judicial review of that measure and his lack of access to a court to apply for release from partial guardianship. This suffering undoubtedly aroused in him a feeling of helplessness and anxiety. The Court further considers that the applicant sustained non-pecuniary damage on account of the degrading living conditions he had to endure for more than seven years.", "264. Ruling on an equitable basis, as required by Article 41 of the Convention, the Court considers that the applicant should be awarded an aggregate sum of EUR 15,000 in respect of non-pecuniary damage.", "2. Costs and expenses", "265. The applicant did not submit any claims in respect of costs and expenses.", "3. Default interest", "266. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant was born in 1956 in Ruse, where he lived until December 2002 and where his half-sister and his father’s second wife, his only close relatives, also live. On 20 December 1990 a panel of occupational physicians declared him unfit to work. The panel found that as a result of being diagnosed with schizophrenia in 1975, the applicant had a 90% degree of disablement but did not require assistance. He is in receipt of an invalidity pension on that account.", "A. The applicant’s placement under partial guardianship and placement in a social care home for people with mental disorders", "10. On an unspecified date in 2000, at the request of the applicant’s two relatives, the Ruse regional prosecutor applied to the Ruse Regional Court ( Окръжен съд ) for a declaration of total legal incapacity in respect of the applicant. In a judgment of 20 November 2000, the court declared the applicant to be partially incapacitated on the grounds that he had been suffering from simple schizophrenia since 1975, and that his ability to manage his own affairs and interests and to realise the consequences of his own acts had been impaired. The court found that the applicant’s condition was not so serious as to warrant a declaration of total incapacity. It observed, in particular, that during the period from 1975 to 2000 he had been admitted to a psychiatric hospital on several occasions. The court took into account an expert medical report produced in the course of the proceedings and interviewed the applicant. Furthermore, according to certain other people it interviewed, the applicant had sold all his possessions, begged for a living, spent all his money on alcohol and became aggressive whenever he drank.", "11. That judgment was upheld in a judgment of 12 April 2001 by the Veliko Tarnovo Court of Appeal ( Апелативен съд ) on an appeal by the applicant, and was subsequently transmitted to the Ruse Municipal Council on 7 June 2001 for the appointment of a guardian.", "12. Since the applicant’s family members had refused to take on any guardianship responsibilities, on 23 May 2002 the Municipal Council appointed Ms R.P., a council officer, as the applicant’s guardian until 31 December 2002.", "13. On 29 May 2002 R.P. asked the Ruse social services to place the applicant in a social care home for people with mental disorders. She appended to the application form a series of documents including a psychiatric diagnosis. Social services drew up a welfare report on the applicant, noting on 23 July 2002 that he was suffering from schizophrenia, that he lived alone in a small, run-down annexe to his half-sister’s house and that his half-sister and his father’s second wife had stated that they did not wish to act as his guardian. The requirements for placement in a social care home were therefore deemed to be fulfilled.", "14. On 10 December 2002 a welfare-placement agreement was signed between R.P. and the social care home for adults with mental disorders near the village of Pastra in the municipality of Rila (“the Pastra social care home”), an institution under the responsibility of the Ministry of Labour and Social Policy. The applicant was not informed of the agreement.", "15. Later that day, the applicant was taken by ambulance to the Pastra social care home, some 400 km from Ruse. Before the Court, he stated that he had not been told why he was being placed in the home or for how long; the Government did not dispute this.", "16. On 14 December 2002, at the request of the Director of the Pastra social care home, the applicant was registered as having his home address in the municipality of Rila. The residence certificate stated that his address had been changed for the purpose of his “permanent supervision”. According to the most recent evidence submitted in February 2011, the applicant was still living in the home at that time.", "17. On 9 September 2005 the applicant’s lawyer requested the Rila Municipal Council to appoint a guardian for her client. In a letter dated 16 September 2005, she was informed that the Municipal Council had decided on 2 February 2005 to appoint the Director of the Pastra social care home as the applicant’s guardian.", "B. The applicant’s stay in the Pastra social care home", "1. Provisions of the placement agreement", "18. The agreement signed between the guardian R.P. and the Pastra social care home on 10 December 2002 (see paragraph 14 above) did not mention the applicant’s name. It stated that the home was to provide food, clothing, medical services, heating and, obviously, accommodation, in return for payment of an amount determined by law. It appears that the applicant’s entire invalidity pension was transferred to the home to cover that amount. The agreement stipulated that 80% of the sum was to be used as payment for the services provided and the remaining 20% put aside for personal expenses. According to the information in the case file, the applicant’s invalidity pension, as updated in 2008, amounted to 130 Bulgarian levs (BGN – approximately 65 euros (EUR)). The agreement did not specify the duration of the provision of the services in question.", "2. Description of the site", "19. The Pastra social care home is located in an isolated area of the Rila mountains in south-west Bulgaria. It is accessible via a dirt track from the village of Pastra, the nearest locality 8 km away.", "20. The home, built in the 1920s, comprises three buildings, where its residents, all male, are housed according to the state of their mental health. According to a report produced by the Social Assistance Agency in April 2009, there were seventy-three people living in the home, one was in hospital and two had absconded. Among the residents, twenty-three were entirely lacking legal capacity, two were partially lacking capacity and the others enjoyed full legal capacity. Each building has a yard surrounded by a high metal fence. The applicant was placed in block 3 of the home, reserved for residents with the least serious health problems, who were able to move around the premises and go alone to the nearest village with prior permission.", "21. According to the applicant, the home was decaying, dirty and rarely heated in winter and, as a result, he and the other residents were obliged to sleep in their coats during winter. The applicant shared a room measuring 16 sq. m with four other residents and the beds were practically side by side. He had only a bedside table in which to store his clothes, but he preferred to keep them in his bed at night for fear that they might be stolen and replaced with old clothes. The home’s residents did not have their own items of clothing because clothes were not returned to the same people after being washed.", "3. Diet and hygiene and sanitary conditions", "22. The applicant asserted that the food provided at the home was insufficient and of poor quality. He had no say in the choice of meals and was not allowed to help prepare them.", "23. Access to the bathroom, which was unhealthy and decrepit, was permitted once a week. The toilets in the courtyard, which were unhygienic and in a very poor state of repair, consisted of holes in the ground covered by dilapidated shelters. Each toilet was shared by at least eight people. Toiletries were available only sporadically.", "4. Recent developments", "24. In their memorial before the Grand Chamber, the Government stated that renovation work had been carried out in late 2009 in the part of the home where the applicant lived, including the sanitary facilities. The home now had central heating. The diet was varied and regularly included fruit and vegetables as well as meat. Residents had access to television, books and games. The State provided them all with clothes. The applicant did not dispute these assertions.", "5. Journeys undertaken by the applicant", "25. The home’s management kept hold of the applicant’s identity papers, allowing him to leave the home only with special permission from the Director. He regularly went to the village of Pastra. It appears that during the visits he mainly provided domestic help to villagers or carried out tasks at the village restaurant.", "26. Between 2002 and 2006 the applicant returned to Ruse three times on leave of absence. Each trip was authorised for a period of about ten days. The journey cost BGN 60 (approximately EUR 30), which was paid to the applicant by the home’s management.", "27. The applicant returned to Pastra before the end of his authorised period of leave after his first two visits to Ruse. According to a statement made by the Director of the home to the public prosecutor’s office on an unspecified date, the applicant came back early because he was unable to manage his finances and had no accommodation.", "28. The third period of leave was authorised from 15 to 25 September 2006. After the applicant failed to return on the scheduled date, the Director of the home wrote to the Ruse municipal police on 13 October 2006, asking them to search for the applicant and transfer him to Sofia, where employees of the home would be able to collect him and take him back to Pastra. On 19 October 2006 the Ruse police informed the Director that the applicant’s whereabouts had been discovered but that the police could not transfer him because he was not the subject of a wanted notice. He was driven back to the social care home on 31 October 2006, apparently by staff of the home.", "6. Opportunities for cultural and recreational activities", "29. The applicant had access to a television set, several books and a chessboard in a common room at the home until 3 p.m., after which the room was kept locked. The room was not heated in winter and the residents kept their coats, hats and gloves on when inside. No other social, cultural or sports activities were available.", "7. Correspondence", "30. The applicant submitted that the staff at the social care home had refused to supply him with envelopes for his correspondence and that, as he did not have access to his own money, he could not buy any either. The staff would ask him to give them any sheets of paper he wished to post so that they could put them in envelopes and send them off for him.", "8. Medical treatment", "31. It appears from a medical certificate of 15 June 2005 (see paragraph 37 below) that, following his placement in the home in 2002, the applicant was given anti-psychotic medication (carbamazepine (600 mg)) under the monthly supervision of a psychiatrist.", "32. In addition, at the Grand Chamber hearing the applicant’s representatives stated that their client had been in stable remission since 2006 and had not undergone any psychiatric treatment in recent years.", "C. Assessment of the applicant’s social skills during his stay in Pastra and conclusions of the psychiatric report drawn up at his lawyer’s request", "33. Once a year, the Director of the social care home and the home’s social worker drew up evaluation reports on the applicant’s behaviour and social skills. The reports indicated that the applicant was uncommunicative, preferred to stay on his own rather than join in group activities, refused to take his medication and had no close relatives to visit while on leave of absence. He was not on good terms with his half-sister and nobody was sure whether he had anywhere to live outside the social care home. The reports concluded that it was impossible for the applicant to reintegrate into society, and set the objective of ensuring that he acquired the necessary skills and knowledge for social resettlement and, in the long term, reintegration into his family. It appears that he was never offered any therapy to that end.", "34. The case file indicates that in 2005 the applicant’s guardian asked the Municipal Council to grant a social allowance to facilitate his reintegration into the community. Further to that request, on 30 December 2005 the municipal social assistance department carried out a “social assessment” ( социална оценка ) of the applicant, which concluded that he was incapable of working, even in a sheltered environment, and had no need for training or retraining, and that in those circumstances he was entitled to a social allowance to cover the costs of his transport, subsistence and medication. On 7 February 2007 the municipal social assistance department granted the applicant a monthly allowance of BGN 16.50 (approximately EUR 8). On 3 February 2009 the allowance was increased to BGN 19.50 (approximately EUR 10).", "35. In addition, at his lawyer’s request, the applicant was examined on 31 August 2006 by Dr V.S., a different psychiatrist from the one who regularly visited the social care home, and by a psychologist, Ms I.A. The report drawn up on that occasion concluded that the diagnosis of schizophrenia given on 15 June 2005 (see paragraph 37 below) was inaccurate in that the patient did not display all the symptoms of that condition. It stated that, although the applicant had suffered from the condition in the past, he had not shown any signs of aggression at the time of the examination but rather a suspicious attitude and a slight tendency towards “verbal aggression”; that he had not undergone any treatment for the condition between 2002 and 2006; and that his health had visibly stabilised. The report noted that no risk of deterioration of his mental health had been observed and stated that, in the opinion of the home’s Director, the applicant was capable of reintegrating into society.", "36. According to the report, the applicant’s stay in the Pastra social care home was very damaging to his health and it was desirable that he should leave the home, otherwise he was at risk of developing “institutionalisation syndrome” the longer he stayed there. The report added that it would be more beneficial to his mental health and social development to allow him to integrate into community life with as few restrictions as possible, and that the only aspect to monitor was his tendency towards alcohol abuse, which had been apparent prior to 2002. In the view of the experts who had examined the applicant, the behaviour of an alcohol-dependent person could have similar characteristics to that of a person with schizophrenia; accordingly, vigilance was required in the applicant’s case and care should be taken not to confuse the two conditions.", "D. The applicant’s attempts to obtain release from partial guardianship", "37. On 25 November 2004 the applicant, through his lawyer, asked the public prosecutor’s office to apply to the Regional Court to have his legal capacity restored. On 2 March 2005 the public prosecutor requested the Pastra social care home to send him a doctor’s opinion and other medical certificates concerning the applicant’s disorders in preparation for a possible application to the courts for restoration of his legal capacity. Further to that request, the applicant was admitted to a psychiatric hospital from 31 May to 15 June 2005 for a medical assessment. In a certificate issued on the latter date, the doctors attested that the applicant showed symptoms of schizophrenia. As his health had not deteriorated since he had been placed in the home in 2002, the regime to which he was subject there had remained unchanged. He had been on maintenance medication since 2002 under the monthly supervision of a psychiatrist. A psychological examination had revealed that he was agitated, tense and suspicious. His communication skills were poor and he was unaware of his illness. He had said that he wanted to leave the home at all costs. The doctors did not express an opinion either on his capacity for resettlement or on the need to keep him in the Pastra social care home.", "38. On 10 August 2005 the regional prosecutor refused to bring an action for restoration of the applicant’s legal capacity on the grounds that, in the opinion of the doctors, the Director of the Pastra social care home and the home’s social worker, the applicant was unable to cope on his own, and that the home, where he could undergo medical treatment, was the most suitable place for him to live. The applicant’s lawyer challenged the refusal to bring the action, arguing that her client should have the opportunity to assess by himself whether or not, having regard to the living conditions at the home, it was in his interests to remain there. She pointed out that the enforced continuation of his stay in the home, on the pretext of providing him with treatment in his own interests, amounted in practice to a deprivation of liberty, a situation that was unacceptable. A person could not be placed in an institution without his or her consent. In accordance with the legislation in force, anyone under partial guardianship was free to choose his or her place of residence, with the guardian’s agreement. The choice of residence was therefore not a matter within the competence of the prosecution service. Despite those objections, the regional prosecutor’s refusal was upheld on 11 October 2005 by the appellate prosecutor, and subsequently on 29 November 2005 by the Chief Public Prosecutor’s Office at the Supreme Court of Cassation.", "39. On 9 September 2005 the applicant, through his lawyer, asked the mayor of Rila to bring a court action for his release from partial guardianship. In a letter of 16 September 2005, the mayor of Rila refused his request, stating that there was no basis for such an action in view of the medical certificate of 15 June 2005, the opinions of the Director and the social worker, and the conclusions reached by the public prosecutor’s office. On 28 September 2005 the applicant’s lawyer applied to the Dupnitsa District Court for judicial review of the mayor’s decision, under Article 115 of the Family Code (“the FC”) (see paragraph 49 below). In a letter of 7 October 2005, the District Court stated that since the applicant was partially lacking legal capacity he was required to submit a valid form of authority certifying that his lawyer was representing him, and that it should be specified whether his guardian had intervened in the procedure. On an unspecified date the applicant’s lawyer submitted a copy of the form of authority signed by the applicant. She also requested that the guardian join the proceedings as an interested party or that an ad hoc representative be appointed. On 18 January 2006 the court held a hearing at which the representative of the mayor of Rila objected that the form of authority was invalid as it had not been countersigned by the guardian. The guardian, who was present at the hearing, stated that he was not opposed to the applicant’s application, but that the latter’s old-age pension was insufficient to meet his needs and that, accordingly, the Pastra social care home was the best place for him to live.", "40. The Dupnitsa District Court gave judgment on 10 March 2006. As to the admissibility of the application for judicial review, it held that, although the applicant had instructed his lawyer to represent him, she was not entitled to act on his behalf since the guardian had not signed the form of authority. However, it held that the guardian’s endorsement of the application at the public hearing had validated all the procedural steps taken by the lawyer, and that the application was therefore admissible. As to the merits, the court dismissed the application, finding that the guardian had no legitimate interest in contesting the mayor’s refusal, given that he could apply independently and directly for the applicant to be released from partial guardianship. Since the judgment was not subject to appeal, it became final.", "41. Lastly, the applicant asserted that he had made several oral requests to his guardian to apply for his release from partial guardianship and to allow him to leave the home. However, his requests had always been refused.", "I. State liability", "62. The State and Municipalities Responsibility for Damage Act 1988 ( Закон за отговорността на държавата и общините за вреди – title amended in 2006) provides in section 2(1) that the State is liable for damage caused to private individuals as a result of a judicial decision ordering certain types of detention where the decision has been set aside as having no legal basis.", "63. Section 1(1) of the same Act provides that the State and municipalities are liable for damage caused to private individuals and other legal entities as a result of unlawful decisions, acts or omissions by their own authorities or officials while discharging their administrative duties.", "64. In a number of decisions, various domestic courts have found this provision to be applicable to the damage suffered by prisoners as a result of poor conditions or inadequate medical treatment in prison and have, where appropriate, partly or fully upheld claims for compensation brought by the persons concerned (реш. от 26.01.2004 г. по гр. д. № 959/2003, ВКС, IV г. о. and реш. № 330 от 7.08.2007 г. по гр. д. № 92/2006, ВКС, IV г. о.).", "65. There are no court decisions in which the above position has been found to apply to allegations of poor living conditions in social care homes.", "66. Moreover, it appears from the domestic courts’ case-law that, under section 1(1) of the Act in question, anyone whose health has deteriorated because bodies under the authority of the Ministry of Health have failed in their duty to provide a regular supply of medication may hold the administrative authorities liable and receive compensation (реш. № 211 от 27.05.2008 г. по гр. д. № 6087/2007, ВКС, V г. о.).", "67. Lastly, the State and its authorities are subject to the ordinary rules on tortious liability for other forms of damage resulting, for example, from the death of a person under guardianship while absconding from a social care home for adults with a mental deficiency, on the ground that the staff of the home had failed to discharge their duty of permanent supervision (реш. № 693 от 26.06.2009 г. по гр. д. № 8/2009, ВКС, III г. о.).", "J. Arrest by the police under the Ministry of the Interior Act 2006", "68. Under this Act, the police are, inter alia, authorised to arrest anyone who, on account of severe mental disturbance and through his or her conduct, poses a threat to public order or puts his or her own life in manifest danger (section 63(1)-(3)). The person concerned may challenge the lawfulness of the arrest before a court, which must give an immediate ruling (section 63(4)).", "69. Furthermore, the police’s responsibilities include searching for missing persons (section 139(3)).", "K. Information submitted by the applicant about searches for persons who have absconded from social care homes for adults with mental disorders", "70. The Bulgarian Helsinki Committee conducted a survey of police stations regarding searches for people who had absconded from social care homes of this type. It appears from the survey that there is no uniform practice. Some police officers said that when they were asked by employees of a home to search for a missing person, they carried out the search and took the person to the police station, before informing the home. Other officers explained that they searched for the person but, not being empowered to perform an arrest, simply notified the staff of the home, who took the person back themselves.", "L. Statistics submitted by the applicant on judicial proceedings concerning deprivation of legal capacity", "71. The Bulgarian Helsinki Committee obtained statistics from 8 regional courts on the outcome of proceedings for restoration of legal capacity between January 2002 and September 2009. During this period 677 persons were deprived of legal capacity. Proceedings to restore capacity were instituted in 36 cases: 10 of them ended with the lifting of the measure; total incapacitation was changed to partial incapacitation in 8 cases; the applications were rejected in 4 cases; the courts discontinued the proceedings in 7 cases; and the other cases are still pending." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Legal status of persons placed under partial guardianship and their representation before the courts", "42. Section 5 of the Persons and Family Act of 9 August 1949 provides that persons who are unable to look after their own interests on account of mental illness or mental deficiency must be entirely deprived of legal capacity and declared legally incapable. Adults with milder forms of such disorders are to be partially incapacitated. Persons who are entirely deprived of legal capacity are placed under full guardianship ( настойничество ), whereas those who are partially incapacitated are placed under partial guardianship ( попечителство – literally “trusteeship”). In accordance with sections 4 and 5 of the Act, persons under partial guardianship may not perform legal transactions without their guardian’s consent. They may, however, carry out ordinary acts forming part of everyday life and have access to the resources obtained in consideration for their work. Accordingly, the guardian of a partially incapacitated person cannot independently perform legal transactions that are binding on that person. This means that contracts signed only by the guardian, without the consent of the person partially lacking legal capacity, are invalid.", "43. Under Article 16 § 2 of the Code of Civil Procedure (“the CCP”), persons under full guardianship are represented before the courts by their guardian. Persons under partial guardianship, however, are entitled to take part in court proceedings, but require their guardian’s consent. Accordingly, the guardian of a partially incapacitated person does not perform the role of a legal representative. The guardian cannot act on behalf of the person under partial guardianship, but may express agreement or disagreement with the person’s individual transactions (Сталев, Ж., Българско гражданско процесуално право, София, 2006 г., стр. 171). In particular, a person under partial guardianship may instruct a lawyer provided that the form of authority is signed by the guardian (ibid., стр. 173).", "B. Procedure for placement under partial guardianship", "44. There are two stages to the procedure for placing a person under partial guardianship: the declaration of partial incapacity and the appointment of a guardian.", "1. Declaration of partial incapacity by the courts", "45. The first stage involves a judicial procedure which at the material time was governed by Articles 275 to 277 of the 1952 CCP, which have been reproduced unchanged in Articles 336 to 340 of the new 2007 CCP. A declaration of partial incapacity may be sought by the person’s spouse or close relatives, by the public prosecutor or by any other interested party. The court reaches its decision after examining the person concerned at a public hearing – or, failing that, after forming a first-hand impression of the person’s condition – and interviewing the person’s close relatives. If the statements thus obtained are insufficient, the court may have recourse to other evidence, such as an expert medical assessment. According to domestic case-law, an assessment must be ordered where the court is unable to conclude from any other information in the file that the request for deprivation of legal capacity is unfounded (Решение на ВС № 1538 от 21.VIII.1961 г. по гр. д. № 5408/61 г.; Решение на ВС № 593 от 4.III.1967 г. по гр. д. № 3218/1966 г.).", "2. Appointment of a guardian by the administrative authorities", "46. The second stage involves an administrative procedure for the appointment of a guardian, which at the material time was governed by Chapter X (Articles 109 to 128) of the 1985 FC; these provisions have been reproduced, with only minor amendments, in Articles 153 to 174 of the new 2009 FC. The administrative stage is conducted by an authority referred to as “the guardianship authority”, namely the mayor or any other municipal council officer designated by him or her.", "47. The guardian should preferably be appointed from among the relatives of the person concerned who are best able to defend his or her interests.", "C. Review of measures taken by the guardian and possibility of replacement", "48. Measures taken by the guardian are subject to review by the guardianship authority. At the authority’s request, the guardian must report on his or her activities. If any irregularities are observed, the authority may request that they be rectified or may order the suspension of the measures in question (see Articles 126 § 2 and 125 of the 1985 FC, and Articles 170 and 171 §§ 2 and 3, of the 2009 FC). It is unclear from domestic law whether persons under partial guardianship may apply to the mayor individually or through another party to suspend measures taken by the guardian.", "49. Decisions by the mayor, as the guardianship authority, and any refusal by the mayor to appoint a guardian or to take other steps provided for in the FC are, for their part, amenable to judicial review. They may be challenged by interested parties or the public prosecutor before the district court, which gives a final decision on the merits (Article 115 of the 1985 FC). This procedure allows close relatives to request a change of guardian in the event of a conflict of interests (Решение на ВС № 1249 от 23.XII.1993 г. по гр. д. № 897/93 г.). According to domestic case-law, fully incapacitated persons are not among the “interested parties” entitled to initiate such proceedings (Определение № 5771 от 11.06.2003 г. на ВАС по адм. д. № 9248/2002). There is no domestic case-law showing that a partially incapacitated person is authorised to do so.", "50. Furthermore, the guardianship authority may at any time replace a guardian who fails to discharge his or her duties (Article 113 of the 1985 FC). By Article 116 of the 1985 FC, a person cannot be appointed as a guardian where there is a conflict of interests between that person and the person under partial guardianship. Article 123 of the 1985 FC provides that a deputy guardian is to be appointed where the guardian is unable to discharge his or her duties or where there is a conflict of interests. In both cases, the guardianship authority may also appoint an ad hoc representative.", "D. Procedure for restoration of legal capacity", "51. By virtue of Article 277 of the 1952 CCP, this procedure is similar to the partial-guardianship procedure. It is open to anyone entitled to apply for a person to be placed under partial guardianship, and also to the guardianship authority and the guardian. The above-mentioned provision has been reproduced in Article 340 of the 2007 CCP. On 13 February 1980 the Plenary Supreme Court delivered a decision (no. 5/79) aimed at clarifying certain questions concerning the procedure for deprivation of legal capacity. Paragraph 10 of the decision refers to the procedure for restoration of legal capacity and reads as follows:", "“The rules applicable in the procedure for restoration of legal capacity are the same as those governing the procedure for deprivation of capacity (Articles 277 and 275 §§ 1 and 2 of the CCP). The persons who requested the measure or the close relatives are treated as respondent parties in the procedure. There is nothing to prevent the party that applied for a person to be deprived of legal capacity from requesting the termination of the measure if circumstances have changed.", "Persons under partial guardianship may request, either individually or with the consent of their guardian, that the measure be lifted. They may also ask the guardianship authority or the guardianship council to bring an action under Article 277 of the CCP in the regional court which deprived them of legal capacity. In such cases, they must show that the application is in their interests by producing a medical certificate. In the context of such an action, they will be treated as the claimant. Where the guardian of a partially incapacitated person, the guardianship authority or the guardianship council (in the case of a fully incapacitated person) refuses to bring an action for restoration of legal capacity, the incapacitated person may ask the public prosecutor to do so (Постановление № 5/79 от 13.II.1980 г., Пленум на ВС).”", "52. In addition, the Government cited a case in which proceedings for the review of the legal status of a person entirely deprived of legal capacity had been instituted at the guardian’s request and the person had been released from guardianship (Решение № 1301 от 12.11.2008 г. на ВКС по гр. Д. № 5560/2007 г., V г.о.).", "E. Validity of contracts signed by representatives of incapacitated persons", "53. Section 26(2) of the Obligations and Contracts Act 1950 provides that contracts that are in breach of the law or have been entered into in the absence of consent are deemed null and void.", "54. In accordance with section 27 of the same Act, contracts entered into by representatives of persons deprived of legal capacity in breach of the applicable rules are deemed voidable. A ground of incurable nullity may be raised on any occasion, whereas a ground of voidability may be raised only by means of a court action. The right to raise a ground of voidability becomes time-barred after a period of three years from the date of release from partial guardianship if a guardian is not appointed. In other cases, the period in question begins to run from the date on which a guardian is appointed (section 32(2), in conjunction with section 115(1)(e), of the above-mentioned Act; see also Решение на ВС № 668 от 14.III.1963 г. по гр. д. № 250/63 г., I г. о., Решение на Окръжен съд – Стара Загора от 2.2.2010 г. по т. д. № 381/2009 г. на I състав, Решение на Районен съд Стара Загора № 459 от 19.5.2009 г. по гр. д. № 1087/2008).", "F. Place of residence of legally incapacitated persons", "55. By virtue of Articles 120 and 122 § 3 of the 1985 FC, persons deprived of legal capacity are deemed to reside at the home address of their guardian unless “exceptional reasons” require them to live elsewhere. Where the place of residence is changed without the guardian’s consent, the guardian may request the district court to order the person’s return to the official address. By Article 163 §§ 2 and 3 of the 2009 FC, before reaching a decision in such cases, the court is required to interview the person under guardianship. If it finds that there are “exceptional reasons”, it must refuse to order the person’s return and must immediately inform the municipal social assistance department so that protective measures can be taken.", "56. The district court’s order may be appealed against to the president of the regional court, although its execution cannot be stayed.", "G. Placement of legally incapacitated persons in social care homes for adults with mental disorders", "57. Under the Social Assistance Act 1998, social assistance is available to people who, for medical and social reasons, are incapable of meeting their basic needs on their own through work, through their own assets or with the help of persons required by law to care for them (section 2 of the Act). Social assistance consists of the provision of various financial benefits, benefits in kind and social services, including placement in specialised institutions. Such benefits are granted on the basis of an individual assessment of the needs of the persons concerned and in accordance with their wishes and personal choices (section 16(2)).", "58. By virtue of the implementing regulations for the Social Assistance Act 1998 ( Правилник за прилагане на Закона за социално подпомагане ), three categories of institutions are defined as “specialised institutions” for the provision of social services: (1) children’s homes (homes for children deprived of parental care, homes for children with physical disabilities, homes for children with a mental deficiency); (2) homes for adults with disabilities (homes for adults with a mental deficiency, homes for adults with mental disorders, homes for adults with physical disabilities, homes for adults with sensory disorders, homes for adults with dementia); and (3) old people’s homes (Regulation 36(3)). Social services are provided in specialised institutions where it is no longer possible to receive them in the community (Regulation 36(4)). Under domestic law, placement of a legally incapacitated person in a social care home is not regarded as a form of deprivation of liberty.", "59. Similarly, in accordance with Decree no. 4 of 16 March 1999 on the conditions for obtaining social services ( Наредба № 4 за условията и реда за извършване на социални услуги ), adults with mental deficiencies are placed in specialised social care homes if it is impossible to provide them with the necessary medical care in a family environment (Articles 12, point (4), and 27 of the Decree). Article 33 § 1, point (3), of the Decree provides that when a person is placed in a social care home, a medical certificate concerning the person’s state of health must be produced. By Article 37 § 1 of the Decree, a placement agreement for the provision of social services is signed between the specialised institution and the person concerned or his or her legal representative, on the basis of a model approved by the Ministry of Labour and Social Policy. The person may be transferred to another home or may leave the institution in which he or she has been placed: (1) at his or her request or at the request of his or her legal representative, submitted in writing to the director of the institution; (2) if there is a change in the state of his or her mental and/or physical health such that it no longer corresponds to the profile of the home; (3) in the event of failure to pay the monthly social welfare contribution for more than one month; (4) in the event of systematic breaches of the institution’s internal rules; or (5) in the event of a confirmed addiction to narcotic substances.", "60. Furthermore, the system governing admission to a psychiatric hospital for compulsory medical treatment is set out in the Health Act 2005, which replaced the Public Health Act 1973.", "H. Appointment of an ad hoc representative in the event of a conflict of interests", "61. Article 16 § 6 of the CCP provides that, in the event of a conflict of interests between a person being represented and the representative, the court is to appoint an ad hoc representative. The Bulgarian courts have applied this provision in certain situations involving a conflict of interests between minors and their legal representative. Thus, the failure to appoint an ad hoc representative has been found to amount to a substantial breach of the rules governing paternity proceedings (Решение на ВС № 297 от 15.04.1987 г. по гр. д. № 168/87 г., II г. о.), disputes between adoptive and biological parents (Решение на ВС № 1381 от 10.05.1982 г. по гр. д. № 954/82 г., II г. о.) or property disputes (Решение № 643 от 27.07.2000 г. на ВКС по гр. д. № 27/2000 г., II г. о.; Определение на ОС – Велико Търново от 5.11.2008 г. по в. ч. гр. д. № 963/2008).", "III. RELEVANT INTERNATIONAL INSTRUMENTS", "A. Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106)", "72. This convention came into force on 3 May 2008. It was signed by Bulgaria on 27 September 2007 but has yet to be ratified. The relevant parts of the Convention provide:", "Article 12 Equal recognition before the law", "“1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.", "2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.", "3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.", "4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.", "5. Subject to the provisions of this Article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.”", "Article 14 Liberty and security of person", "“1. States Parties shall ensure that persons with disabilities, on an equal basis with others:", "(a) Enjoy the right to liberty and security of person;", "(b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.", "2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.”", "B. Recommendation No. R (99) 4 of the Committee of Ministers of the Council of Europe on principles concerning the legal protection of incapable adults (adopted on 23 February 1999)", "73. The relevant parts of this Recommendation read as follows.", "Principle 2 – Flexibility in legal response", "“1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal response to be made to different degrees of incapacity and various situations.", "...", "4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.”", "Principle 3 – Maximum preservation of capacity", "“1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.", "2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so.", "...”", "Principle 6 – Proportionality", "“1. Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned.", "2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention.”", "Principle 13 – Right to be heard in person", "“The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.”", "Principle 14 – Duration, review and appeal", "“1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews.", "...", "3. There should be adequate rights of appeal.”", "C. Reports on visits to Bulgaria by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)", "1. The CPT’s report on its visit from 16 to 22 December 2003, published on 24 June 2004", "74. This report outlines the situation of persons placed by the public authorities in social care homes for people with mental disorders or mental deficiency, which are under the authority of the Ministry of Labour and Social Policy. Part II.4 of the report is devoted to the Pastra social care home.", "75. The CPT noted that the home’s official capacity was 105; it had 92 registered male residents, of whom 86 were present at the time of the visit. Two residents had absconded and the others were on home leave. Some 90% of the residents were suffering from schizophrenia and the remainder had a mental deficiency. The majority had spent many years in the institution, discharges being quite uncommon.", "76. According to the CPT’s findings, the premises of the Pastra social care home were in a deplorable state of repair and hygiene and the home was inadequately heated.", "77. In particular, the buildings did not have running water. The residents washed in cold water in the yard and were often unshaven and dirty. The bathroom, to which they had access once a week, was rudimentary and dilapidated.", "78. The toilets, likewise located in the yard, consisted of decrepit shelters with holes dug in the ground. They were in an execrable state and access to them was dangerous. Furthermore, basic toiletries were rarely available.", "79. The report notes that the provision of food was inadequate. Residents received three meals a day, including 750 g of bread. Milk and eggs were never on offer, and fresh fruit and vegetables were rarely available. No provision was made for special diets.", "80. The only form of treatment at the home consisted of the provision of medication. The residents, who were treated as chronic psychiatric patients in need of maintenance therapy, were registered as outpatients with a psychiatrist in Dupnitsa. The psychiatrist visited the home once every two to three months, and also on request. In addition, residents could be taken to the psychiatrist – who held weekly surgeries in the nearby town of Rila – if changes in their mental condition were observed. All residents underwent a psychiatric examination twice a year, which was an occasion for them to have their medication reviewed and, if necessary, adjusted. Nearly all residents received psychiatric medication, which was recorded on a special card and administered by the nurses.", "81. Apart from the administration of medication, no therapeutic activities were organised for residents, who led passive, monotonous lives.", "82. The CPT concluded that these conditions had created a situation which could be said to amount to inhuman and degrading treatment. It requested the Bulgarian authorities to replace the Pastra social care home as a matter of urgency. In their response of 13 February 2004, the Bulgarian authorities acknowledged that the home was not in conformity with European care standards. They stated that it would be closed as a priority and that the residents would be transferred to other institutions.", "83. The CPT further observed, in part II.7 of its report, that in most cases placement of people with mental disabilities in a specialised institution led to a de facto deprivation of liberty. The placement procedure should therefore be accompanied by appropriate safeguards, among them an objective medical, and in particular psychiatric, assessment. It was also essential that these persons should have the right to bring proceedings by which the lawfulness of their placement could be decided speedily by a court. The CPT recommended that such a right be guaranteed in Bulgaria (see paragraph 52 of the report).", "2. The CPT’s report on its visit from 10 to 21 September 2006, published on 28 February 2008", "84. In this report the CPT again recommended that provision be made for the introduction of judicial review of the lawfulness of placement in a social care home (see paragraphs 176-77 of the report).", "85. It also recommended that efforts be made to ensure that the placement of residents in homes for people with mental disorders and/or deficiency conformed fully to the letter and spirit of the law. Contracts for the provision of social services should specify the legal rights of residents, including the possibilities for lodging complaints with an outside authority. Furthermore, residents who were incapable of understanding the contracts should receive appropriate assistance (see paragraph 178 of the report).", "86. Lastly, the CPT urged the Bulgarian authorities to take the necessary steps to avoid conflicts of interests arising from the appointment of an employee of a social care home as the guardian of a resident of the same institution (see paragraph 179 of the report).", "87. The CPT made a further visit to the Pastra social care home during its periodic visit to Bulgaria in October 2010.", "IV. COMPARATIVE LAW", "A. Access to a court for restoration of legal capacity", "88. A comparative study of the domestic law of twenty Council of Europe member States indicates that in the vast majority of cases (Croatia, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Luxembourg, Monaco, Poland, Portugal, Romania, Slovakia, Sweden, Switzerland and Turkey) the law entitles anyone who has been deprived of legal capacity to apply directly to the courts for discontinuation of the measure.", "89. In Ukraine, people who have been partially deprived of legal capacity may themselves apply for the measure to be lifted; this does not apply to those who have been declared fully incapable, who may nevertheless challenge before a court any measures taken by their guardian.", "90. Judicial proceedings for the discontinuation of an order depriving a person of legal capacity cannot be instituted directly by the person concerned in Latvia (where an application may be made by the public prosecutor or the guardianship council) or in Ireland.", "B. Placement of legally incapacitated persons in a specialised institution", "91. A comparative-law study of the legislation of twenty States Parties to the Convention shows that there is no uniform approach in Europe to the question of placement of legally incapacitated persons in specialised institutions, particularly as regards the authority competent to order the placement and the guarantees afforded to the person concerned. It may nevertheless be observed that in some countries (Austria, Estonia, Finland, France, Germany, Greece, Poland, Portugal and Turkey) the decision to place a person in a home on a long-term basis against his or her will is taken directly or approved by a judge.", "92. Other legal systems (Belgium, Denmark, Hungary, Ireland, Latvia, Luxembourg, Monaco and the United Kingdom) authorise the guardian, close relatives or the administrative authorities to decide on placement in a specialised institution without a judge’s approval being necessary. It also appears that in all the above-mentioned countries, the placement is subject to a number of substantive requirements, relating in particular to the person’s health, the existence of a danger or risk and/or the production of medical certificates. In addition, the obligation to interview or consult the person concerned on the subject of the placement, the setting of a time-limit by law or by the courts for the termination or review of the placement, and the possibility of legal assistance are among the safeguards provided in several national legal systems.", "93. In certain countries (Denmark, Estonia, Germany, Greece, Hungary, Ireland, Latvia, Poland, Slovakia, Switzerland and Turkey) the possibility of challenging the initial placement order before a judicial body is available to the person concerned without requiring the guardian’s consent.", "94. Lastly, several States (Denmark, Estonia, Finland, Germany, Greece, Ireland, Latvia, Poland, Switzerland and Turkey) directly empower the person concerned to apply periodically for judicial review of the lawfulness of the continued placement.", "95. It should also be noted that many countries’ laws on legal capacity or placement in specialised institutions have recently been amended (Austria: 2007; Denmark: 2007; Estonia: 2005; Finland: 1999; France: 2007; Germany: 1992; Greece: 1992; Hungary: 2004; Latvia: 2006; Poland: 2007; Ukraine: 2000; United Kingdom: 2005) or are in the process of being amended (Ireland). These legislative reforms are designed to increase the legal protection of persons lacking legal capacity by affording them either the right of direct access to court for a review of their status, or additional safeguards when they are placed in specialised institutions against their will.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "96. The applicant submitted that his placement in the Pastra social care home was in breach of Article 5 § 1 of the Convention.", "Article 5 § 1 provides:", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "(a) the lawful detention of a person after conviction by a competent court;", "(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;", "(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;", "(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;", "(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;", "(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”", "A. Preliminary remarks", "97. The Grand Chamber observes that the Government maintained before it the objection they raised before the Chamber, alleging failure to exhaust domestic remedies in respect of the complaint under Article 5 § 1.", "98. The objection was based on the following arguments. Firstly, the applicant could at any time have applied personally to a court for restoration of his legal capacity, under Article 277 of the Code of Civil Procedure (“the CCP”), and release from guardianship would have allowed him to leave the home of his own accord. Secondly, his close relatives had not availed themselves of the possibility open to some of them, under Articles 113 and 115 of the Family Code (“the FC”), of asking the guardianship authority to replace his guardian. According to the Government, in the event of a refusal the applicants’ relatives could have applied to a court, which would have considered the merits of the request and, if appropriate, appointed a new guardian, who would then have been able to terminate the placement agreement. The Government also submitted in substance that the applicant’s close relatives could have challenged the contract signed between the guardian R.P. and the Pastra social care home. Lastly, they indicated that the applicant himself could have requested the guardianship authority to appoint an ad hoc representative on account of his alleged conflict of interests with his guardian, with a view to requesting to leave the institution and establish his home elsewhere (Article 123 § 1 of the FC).", "99. The Grand Chamber observes that in its admissibility decision of 29 June 2010 the Chamber found that this objection raised questions that were closely linked to those arising in relation to the applicant’s complaint under Article 5 § 4 and therefore joined the objection to its examination of the merits under that provision.", "100. In addition, finding that the question whether there had been a “deprivation of liberty” within the meaning of Article 5 § 1 in the present case was closely linked to the merits of the complaint under that provision, the Chamber likewise joined that issue to its examination of the merits. The Grand Chamber sees no reason to call into question the Chamber’s findings on these issues.", "B. Whether the applicant was deprived of his liberty within the meaning of Article 5 § 1", "1. The parties’ submissions", "(a) The applicant", "101. The applicant contended that, although under domestic law placement of people with mental disorders in a social care institution was regarded as “voluntary”, his transfer to the Pastra social care home constituted a deprivation of liberty. He maintained that, as in Storck v. Germany (no. 61603/00, ECHR 2005-V), the objective and subjective elements of detention were present in his case.", "102. With regard to the nature of the measure, the applicant submitted that living in a social care home in a remote mountain location amounted to physical isolation from society. He could not have chosen to leave on his own initiative since, having no identity papers or money, he would soon have faced the risk of being stopped by the police for a routine check, a widespread practice in Bulgaria.", "103. Absences from the social care home were subject to permission. The distance of approximately 420 km between the institution and his home town and the fact that he had no access to his invalidity pension had made it impossible for him to travel to Ruse more than three times. The applicant further submitted that he had been denied permission to travel on many other occasions by the home’s management. He added that, in accordance with a practice with no legal basis, residents who left the premises for longer than the authorised period were treated as fugitives and were searched for by the police. He stated in that connection that on one occasion the police had arrested him in Ruse and that, although they had not taken him back to the home, the fact that the Director had asked for him to be located and transferred back had amounted to a decisive restriction on his right to personal liberty. He stated that he had been arrested and detained by the police pending the arrival of staff from the home to collect him, without being informed of the grounds for depriving him of his liberty. Since he had been transferred back under duress, it was immaterial that those involved had been employees of the home.", "104. The applicant further noted that his placement in the home had already lasted more than eight years and that his hopes of leaving one day were futile, as the decision had to be approved by his guardian.", "105. As to the consequences of his placement, the applicant highlighted the severity of the regime to which he was subject. His occupational activities, treatment and movements had been subject to thorough and practical supervision by the home’s employees. He had been required to follow a strict daily routine, getting up, going to bed and eating at set times. He had had no free choice as to his clothing, the preparation of his meals, participation in cultural events or the development of relations with other people, including intimate relationships as the home’s residents were all men. He had been allowed to watch television in the morning only. Accordingly, his stay in the home had caused a perceptible deterioration in his well-being and the onset of institutionalisation syndrome, in other words the inability to reintegrate into the community and lead a normal life.", "106. With regard to the subjective element, the applicant submitted that his situation differed from that examined in H.M. v. Switzerland (no. 39187/98, ECHR 2002-II), in which the applicant had consented to her placement in a nursing home. He himself had never given such consent. His guardian at the time, Ms R.P. (see paragraph 12 above), had not consulted him on the placement and, moreover, he did not even know her; nor had he been informed of the existence of the placement agreement of 10 December 2002 (see paragraph 14 above), which he had never signed. Those circumstances reflected a widespread practice in Bulgaria whereby once people were deprived of legal capacity, even partially, they were deemed incapable of expressing their wishes. In addition, it was clear from the medical documents that the applicant’s desire to leave the home had been interpreted not as a freely expressed wish, but rather as a symptom of his mental illness.", "107. Lastly, in H.M. v. Switzerland (cited above) the authorities had based their decision to place the applicant in a nursing home on a thorough examination showing that the living conditions in her own home had severely deteriorated as a result of her lack of cooperation with a social welfare authority. By contrast, the applicant in the present case had never been offered and had never refused alternative social care at home.", "(b) The Government", "108. In their written observations before the Chamber, the Government accepted that the circumstances of the case amounted to a “deprivation of liberty” within the meaning of Article 5 § 1 of the Convention. However, at the hearing and in the proceedings before the Grand Chamber, they contended that Article 5 was not applicable. They observed in that connection that the applicant had not been compulsorily admitted to a psychiatric institution by the public authorities under the Public Health Act, but had been housed in a social care home at his guardian’s request, on the basis of a civil-law agreement and in accordance with the rules on social assistance. Thus, persons in need of assistance, including those with mental disorders, could request various social and medical services, either directly or through their representatives, under the Social Assistance Act 1998 (see paragraphs 57-60 above). Homes for adults with mental disorders offered a wide range of services of this kind and placement in such institutions could not be seen as a deprivation of liberty.", "109. As to the particular circumstances of the case, the Government emphasised that the applicant had never expressly and consciously objected to his placement in the home, and it could not therefore be concluded that the measure had been involuntary. Furthermore, he had been free to leave the home at any time.", "110. In addition, the applicant had been encouraged to work in the village restaurant to the best of his abilities and had been granted leave of absence on three occasions. The reason he had twice returned from Ruse before the end of his authorised period of leave (see paragraph 27 above) was his lack of accommodation. The Government further submitted that the applicant had never been brought back to the home by the police. They acknowledged that in September 2006 the Director had been obliged to ask the police to search for him because he had not come back (see paragraph 28 above). However, it was clear from the case of Dodov v. Bulgaria (no. 59548/00, 17 January 2008) that the State had a positive obligation to take care of people housed in social care homes. In the Government’s submission, the steps taken by the Director had formed part of this duty of protection.", "111. The Government further observed that the applicant had lacked legal capacity and had not had the benefit of a supportive family environment, accommodation or sufficient resources to lead an independent life. Referring in that connection to the judgments in H.M. v. Switzerland (cited above) and Nielsen v. Denmark (28 November 1988, Series A no. 144), they submitted that the applicant’s placement in the home was simply a protective measure taken in his interests alone and constituted an appropriate response to a social and medical emergency; such a response could not be viewed as involuntary.", "(c) The third party", "112. Interights made the following general observations. It stated that it had carried out a survey of practices regarding placement of people with mental disorders in specialised institutions in central and east European countries. According to the conclusions of the survey, in most cases placement in such institutions could be regarded as amounting to a de facto deprivation of liberty.", "113. Social care homes were often located in rural or mountainous areas which were not easily accessible. Where they were situated near urban areas, they were surrounded by high walls or fences and the gates were kept locked. As a rule, residents were able to leave the premises only with the express permission of the director of the home, and for a limited period. In cases of unauthorised leave, the police had the power to search for and return the persons concerned. The same restrictive regime applied to all residents, without any distinction according to legal status – whether they had full, partial or no legal capacity – and in the view of Interights this was a decisive factor. No consideration at all was given to whether the placement was voluntary or involuntary.", "114. Regarding the analysis of the subjective aspect of the placement, Interights submitted that the consent of the persons concerned was a matter requiring careful attention. Thorough efforts should be made to ascertain their true wishes, notwithstanding any declaration of legal incapacity that might have been made in their case. Interights contended that in reality, when faced with a choice between a precarious, homeless existence and the relative security offered by a social care home, incapable persons in central and east European countries might opt for the latter solution, simply because no alternative services were offered by the State’s social welfare system. That did not mean, however, that the persons concerned could be said to have freely consented to the placement.", "2. The Court’s assessment", "(a) General principles", "115. The Court reiterates that the difference between deprivation of liberty and restrictions on liberty of movement, the latter being governed by Article 2 of Protocol No. 4, is merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends (see Guzzardi v. Italy, 6 November 1980, §§ 92-93, Series A no. 39). In order to determine whether someone has been deprived of his liberty, the starting-point must be his specific situation and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question (see Storck, cited above, § 71, and Guzzardi, cited above, § 92).", "116. In the context of deprivation of liberty on mental-health grounds, the Court has held that a person could be regarded as having been “detained” even during a period when he was in an open hospital ward with regular unescorted access to the unsecured hospital grounds and the possibility of unescorted leave outside the hospital (see Ashingdane v. the United Kingdom, 28 May 1985, § 42, Series A no. 93).", "117. Furthermore, in relation to the placement of mentally disordered persons in an institution, the Court has held that the notion of deprivation of liberty does not only comprise the objective element of a person’s confinement in a particular restricted space for a not negligible length of time. A person can only be considered to have been deprived of his liberty if, as an additional subjective element, he has not validly consented to the confinement in question (see Storck, cited above, § 74).", "118. The Court has found that there was a deprivation of liberty in circumstances such as the following: (a) where the applicant, who had been declared legally incapable and admitted to a psychiatric hospital at his legal representative’s request, had unsuccessfully attempted to leave the hospital (see Shtukaturov v. Russia, no. 44009/05, § 108, ECHR 2008); (b) where the applicant had initially consented to her admission to a clinic but had subsequently attempted to escape (see Storck, cited above, § 76); and (c) where the applicant was an adult incapable of giving his consent to admission to a psychiatric institution which, nonetheless, he had never attempted to leave (see H.L. v. the United Kingdom, no. 45508/99, §§ 89-94, ECHR 2004-IX).", "119. The Court has also held that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, §§ 64 ‑ 65, Series A no. 12), especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action (see H.L. v. the United Kingdom, cited above, § 90).", "120. In addition, the Court has had occasion to observe that the first sentence of Article 5 § 1 must be construed as laying down a positive obligation on the State to protect the liberty of those within its jurisdiction. Otherwise, there would be a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The State is therefore obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge (see Storck, cited above, § 102). Thus, having regard to the particular circumstances of the cases before it, the Court has held that the national authorities’ responsibility was engaged as a result of detention in a psychiatric hospital at the request of the applicant’s guardian (see Shtukaturov, cited above) and detention in a private clinic (see Storck, cited above).", "(b) Application of these principles in the present case", "121. The Court observes at the outset that it is unnecessary in the present case to determine whether, in general terms, any placement of a legally incapacitated person in a social care institution constitutes a “deprivation of liberty” within the meaning of Article 5 § 1. In some cases, the placement is initiated by families who are also involved in the guardianship arrangements and is based on civil-law agreements signed with an appropriate social care institution. Accordingly, any restrictions on liberty in such cases are the result of actions by private individuals and the authorities’ role is limited to supervision. The Court is not called upon in the present case to rule on the obligations that may arise under the Convention for the authorities in such situations.", "122. It observes that there are special circumstances in the present case. No members of the applicant’s family were involved in his guardianship arrangements, and the duties of guardian were assigned to a State official (Ms R.P.), who negotiated and signed the placement agreement with the Pastra social care home without any contact with the applicant, whom she had in fact never met. The placement agreement was implemented in a State-run institution by social services, which likewise did not interview the applicant (see paragraphs 12-15 above). The applicant was never consulted about his guardian’s choices, even though he could have expressed a valid opinion and his consent was necessary in accordance with the Persons and Family Act 1949 (see paragraph 42 above). That being so, he was not transferred to the Pastra social care home at his request or on the basis of a voluntary private-law agreement on admission to an institution to receive social assistance and protection. The Court considers that the restrictions complained of by the applicant are the result of various steps taken by public authorities and institutions through their officials, from the initial request for his placement in an institution and throughout the implementation of the relevant measure, and not of acts or initiatives by private individuals. Although there is no indication that the applicant’s guardian acted in bad faith, the above considerations set the present case apart from Nielsen (cited above), in which the applicant’s mother committed her son, a minor, to a psychiatric institution in good faith, which prompted the Court to find that the measure in question entailed the exercise of exclusive custodial rights over a child who was not capable of expressing a valid opinion.", "123. The applicant’s placement in the social care home can therefore be said to have been attributable to the national authorities. It remains to be determined whether the restrictions resulting from that measure amounted to a “deprivation of liberty” within the meaning of Article 5.", "124. With regard to the objective aspect, the Court observes that the applicant was housed in a block which he was able to leave, but emphasises that the question whether the building was locked is not decisive (see Ashingdane, cited above, § 42). While it is true that the applicant was able to go to the nearest village, he needed express permission to do so (see paragraph 25 above). Moreover, the time he spent away from the home and the places where he could go were always subject to controls and restrictions.", "125. The Court further notes that between 2002 and 2009 the applicant was granted leave of absence for three short visits (of about ten days) to Ruse (see paragraphs 26-28 above). It cannot speculate as to whether he could have made more frequent visits had he asked to do so. Nevertheless, it observes that such leave of absence was entirely at the discretion of the home’s management, who kept the applicant’s identity papers and administered his finances, including transport costs (see paragraphs 25-26 above). Furthermore, it would appear to the Court that the home’s location in a mountain region far away from Ruse (some 400 km) made any journey difficult and expensive for the applicant in view of his income and his ability to make his own travel arrangements.", "126. The Court considers that this system of leave of absence and the fact that the management kept the applicant’s identity papers placed significant restrictions on his personal liberty.", "127. Moreover, it is not disputed that when the applicant did not return from leave of absence in 2006, the home’s management asked the Ruse police to search for and return him (see paragraph 28 above). The Court can accept that such steps form part of the responsibilities assumed by the management of a home for people with mental disorders towards its residents. It further notes that the police did not escort the applicant back and that he has not proved that he was arrested pending the arrival of staff from the home. Nevertheless, since his authorised period of leave had expired, the staff returned him to the home without regard for his wishes.", "128. Accordingly, although the applicant was able to undertake certain journeys, the factors outlined above lead the Court to consider that, contrary to what the Government maintained, he was under constant supervision and was not free to leave the home without permission whenever he wished. With reference to the Dodov case (cited above), the Government maintained that the restrictions in issue had been necessary in view of the authorities’ positive obligations to protect the applicant’s life and health. The Court notes that, in the above-mentioned case, the applicant’s mother suffered from Alzheimer’s disease and that, as a result, her memory and other mental capacities had progressively deteriorated, to the extent that the nursing home staff had been instructed not to leave her unattended. In the present case, however, the Government have not shown that the applicant’s state of health was such as to put him at immediate risk, or to require the imposition of any special restrictions to protect his life and limb.", "129. As regards the duration of the measure, the Court observes that it was not specified and was thus indefinite since the applicant was listed in the municipal registers as having his permanent address at the home, where he still remains (having lived there for more than eight years). This period is sufficiently lengthy for him to have felt the full adverse effects of the restrictions imposed on him.", "130. As to the subjective aspect of the measure, it should be noted that, contrary to the requirements of domestic law (see paragraph 42 above), the applicant was not asked to give his opinion on his placement in the home and never explicitly consented to it. Instead, he was taken to Pastra by ambulance and placed in the home without being informed of the reasons for or duration of that measure, which had been taken by his officially assigned guardian. The Court observes in this connection that there are situations where the wishes of a person with impaired mental faculties may validly be replaced by those of another person acting in the context of a protective measure and that it is sometimes difficult to ascertain the true wishes or preferences of the person concerned. However, the Court has already held that the fact that a person lacks legal capacity does not necessarily mean that he is unable to comprehend his situation (see Shtukaturov, cited above, § 108). In the present case, domestic law attached a certain weight to the applicant’s wishes and it appears that he was well aware of his situation. The Court notes that, at least from 2004, the applicant explicitly expressed his desire to leave the Pastra social care home, both to psychiatrists and through his applications to the authorities to have his legal capacity restored and to be released from guardianship (see paragraphs 37-41 above).", "131. These factors set the present case apart from H.M. v. Switzerland (cited above), in which the Court found that there had been no deprivation of liberty as the applicant had been placed in a nursing home purely in her own interests and, after her arrival there, had agreed to stay. In that connection the Government have not shown that in the present case, on arrival at the Pastra social care home or at any later date, the applicant agreed to stay there. That being so, the Court is not convinced that the applicant consented to the placement or accepted it tacitly at a later stage and throughout his stay.", "132. Having regard to the particular circumstances of the present case, especially the involvement of the authorities in the decision to place the applicant in the home and its implementation, the rules on leave of absence, the duration of the placement and the applicant’s lack of consent, the Court concludes that the situation under examination amounts to a deprivation of liberty within the meaning of Article 5 § 1 of the Convention. Accordingly, that provision is applicable.", "C. Whether the applicant’s placement in the Pastra social care home was compatible with Article 5 § 1", "1. The parties’ submissions", "(a) The applicant", "133. The applicant submitted that, since he had not consented to his placement in the Pastra social care home and had not signed the agreement drawn up between his guardian and the home, the agreement was in breach of the Persons and Family Act. He added that he had not been informed of the agreement’s existence at the time of his placement and that he had remained unaware of it for a long time afterwards. Nor had he had any opportunity to challenge this step taken by his guardian. Although the guardian had been required by Article 126 of the FC to report on her activities to the guardianship authority (the mayor), the latter was not empowered to take any action against her. Furthermore, no report had ever been drawn up in respect of the applicant, and his guardians had never been called to account for that shortcoming.", "134. The applicant further argued that his placement in a home for people with mental disorders did not fall within any of the grounds on which deprivation of liberty could be justified for the purposes of Article 5. The measure in question had not been justified by the need to ensure public safety or by the inability of the person concerned to cope outside the institution. In support of that contention, the applicant argued that the Director of the home had deemed him capable of integrating into the community and that attempts had been made to bring him closer to his family, albeit to no avail. Accordingly, the authorities had based their decision to place him in the home on the simple fact that his family were not prepared to take care of him and he needed social assistance. They had not examined whether the necessary assistance could be provided through alternative measures that were less restrictive of his personal liberty. Such measures were, moreover, quite conceivable since Bulgarian legislation made provision for a wide range of social services, such as personal assistance, social rehabilitation centres and special allowances and pensions. The authorities had thus failed to strike a fair balance between the applicant’s social needs and his right to liberty. It would be arbitrary, and contrary to the purpose of Article 5, for detention to be based on purely social considerations.", "135. Should the Court take the view that the placement fell within the scope of Article 5 § 1 (e), by which persons of unsound mind could be deprived of their liberty, the applicant submitted that the national authorities had not satisfied the requirements of that provision. In the absence of a recent psychiatric assessment, it was clear that his placement in the home had not pursued the aim of providing him with medical treatment and had been based solely on medical documents produced in the context of the proceedings for his legal incapacitation. The documents had been issued approximately a year and a half beforehand and had not strictly concerned his placement in an institution for people with mental disorders. Relying on Varbanov v. Bulgaria (no. 31365/96, § 47, ECHR 2000-X), the applicant stated that he had been placed in the Pastra social care home without having undergone any assessment of his mental health at that time.", "(b) The Government", "136. The Government submitted that the applicant’s placement in the home complied with domestic law as the guardian had signed an agreement whereby the applicant was to receive social services in his own interests. She had therefore acted in accordance with her responsibilities and had discharged her duty to protect the person under partial guardianship.", "137. Bearing in mind that the sole purpose of the placement had been to provide the applicant with social services under the Social Assistance Act and not to administer compulsory medical treatment, the Government submitted that this measure was not governed by Article 5 § 1 (e) of the Convention. In that connection, the authorities had taken into account his financial and family situation, that is to say, his lack of resources and the absence of close relatives able to assist him on a day-to-day basis.", "138. The Government noted at the same time that the applicant could in any event be regarded as a “person of unsound mind” within the meaning of Article 5 § 1 (e). The medical assessment carried out during the proceedings for his legal incapacitation in 2000 showed clearly that he was suffering from mental disorders and that it was therefore legitimate for the authorities to place him in an institution for people with similar problems. Lastly, relying on the Ashingdane judgment (cited above, § 44), the Government submitted that there was an adequate link between the reason given for the placement, namely the applicant’s state of health, and the institution in which he had been placed. Accordingly, they contended that the measure in issue had not been in breach of Article 5 § 1 (e).", "(c) The third party", "139. On the basis of the study referred to in paragraphs 112 to 114 above, Interights submitted that in central and east European countries, the placement of mentally disordered persons in a social care home was viewed solely in terms of social protection and was governed by contractual law. Since such placements were not regarded as a form of deprivation of liberty under domestic law, the procedural safeguards available in relation to involuntary psychiatric confinement were not applicable.", "140. Interights contended that situations of this nature were comparable to that examined in H.L. v. the United Kingdom (cited above), in which criticism had been levelled at the system prior to 2007 in the United Kingdom, whereby the common-law doctrine of necessity had permitted the “informal” detention of compliant incapacitated persons with mental disorders. The Court had held that the lack of any fixed procedural rules on the admission and detention of such persons was striking. In its view, the contrast between this dearth of regulation and the extensive network of safeguards applicable to formal psychiatric committals covered by mental-health legislation was significant. In the absence of a formalised admission procedure, indicating who could propose admission, for what reasons and on what basis, and given the lack of indication as to the length of the detention or the nature of treatment or care, the hospital’s health-care professionals had assumed full control of the liberty and treatment of a vulnerable incapacitated person solely on the basis of their own clinical assessments completed as and when they saw fit. While not doubting that those professionals had acted in good faith and in the applicant’s best interests, the Court had observed that the very purpose of procedural safeguards was to protect individuals against any misjudgments and professional lapses (ibid., §§ 120-21).", "141. Interights urged the Court to remain consistent with that approach and to find that in the present case the informal nature of admission to and continued detention in a social care home was at odds with the guarantees against arbitrariness under Article 5. The courts had not been involved at any stage of the proceedings and no other independent body had been assigned the task of monitoring the institutions in question. The lack of regulation coupled with the vulnerability of mentally disordered persons facilitated abuses of fundamental rights in a context of extremely limited supervision.", "142. The third party further submitted that, in most cases of this kind, placements were automatic as there were few possibilities of alternative social assistance. It contended that the authorities should be under a practical obligation to provide for appropriate measures that were less restrictive of personal liberty but were nonetheless capable of ensuring medical care and social services for mentally disordered persons. This would be a means of applying the principle that the rights guaranteed by the Convention should not be theoretical or illusory but practical and effective.", "2. The Court’s assessment", "(a) General principles", "143. The Court reiterates that in order to comply with Article 5 § 1, the detention in issue must first of all be “lawful”, including the observance of a procedure prescribed by law; in this respect the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. It requires in addition, however, that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness (see Herczegfalvy v. Austria, 24 September 1992, § 63, Series A no. 244). Furthermore, the detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is in conformity with national law; it must also be necessary in the circumstances (see Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000-III).", "144. In addition, sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds of deprivation of liberty; such a measure will not be lawful unless it falls within one of those grounds (ibid., § 49; see also, in particular, Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008, and Jendrowiak v. Germany, no. 30060/04, § 31, 14 April 2011).", "145. As regards the deprivation of liberty of mentally disordered persons, an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33; Shtukaturov, cited above, § 114; and Varbanov, cited above, § 45).", "146. As to the second of the above conditions, the detention of a mentally disordered person may be necessary not only where the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him, for example, causing harm to himself or other persons (see Hutchison Reid v. the United Kingdom, no. 50272/99, § 52, ECHR 2003 ‑ IV).", "147. The Court further reiterates that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the “detention” of a person as a mental-health patient will be “lawful” for the purposes of Article 5 § 1 (e) only if effected in a hospital, clinic or other appropriate institution authorised for that purpose (see Ashingdane, cited above, § 44, and Pankiewicz v. Poland, no. 34151/04, §§ 42-45, 12 February 2008). However, subject to the foregoing, Article 5 § 1 (e) is not in principle concerned with suitable treatment or conditions (see Ashingdane, cited above, § 44, and Hutchison Reid, cited above, § 49).", "(b) Application of these principles in the present case", "148. In examining whether the applicant’s placement in the Pastra social care home was lawful for the purposes of Article 5 § 1, the Court must ascertain whether the measure in question complied with domestic law, whether it fell within the scope of one of the exceptions provided for in sub-paragraphs (a) to (f) of Article 5 § 1 to the rule of personal liberty, and, lastly, whether it was justified on the basis of one of those exceptions.", "149. On the basis of the relevant domestic instruments (see paragraphs 57-59 above), the Court notes that Bulgarian law envisages placement in a social care institution as a protective measure taken at the request of the person concerned and not a coercive one ordered on one of the grounds listed in sub-paragraphs (a) to (f) of Article 5 § 1. However, in the particular circumstances of the instant case, the measure in question entailed significant restrictions on personal freedom giving rise to a deprivation of liberty with no regard for the applicant’s will or wishes (see paragraphs 121-32 above).", "150. As to whether a procedure prescribed by law was followed, the Court notes firstly that under domestic law the guardian of a person partially lacking legal capacity is not empowered to take legal steps on that person’s behalf. Any contracts drawn up in such cases are valid only when signed together by the guardian and the person under partial guardianship (see paragraph 42 above). The Court therefore concludes that the decision by the applicant’s guardian R.P. to place him in a social care home for people with mental disorders without having obtained his prior consent was invalid under Bulgarian law. This conclusion is in itself sufficient for the Court to establish that the applicant’s deprivation of liberty was contrary to Article 5.", "151. In any event, the Court considers that that measure was not lawful within the meaning of Article 5 § 1 of the Convention since it was not justified on the basis of any of sub-paragraphs (a) to (f).", "152. The applicant accepted that the authorities had acted mainly on the basis of the arrangements governing social assistance (see paragraph 134 above). However, he argued that the restrictions imposed amounted to a deprivation of liberty which had not been warranted by any of the exceptions provided for in sub-paragraphs (a) to (f) of Article 5 § 1 to the rule of personal liberty. The Government contended that the applicant’s placement in the home had been intended solely to protect his interest in receiving social care (see paragraphs 136-37 above). However, they stated that should the Court decide that Article 5 § 1 was applicable, the measure in question should be held to comply with sub-paragraph (e) in view of the applicant’s mental disorder (see paragraph 138 above).", "153. The Court notes that the applicant was eligible for social assistance as he had no accommodation and was unable to work as a result of his illness. It takes the view that, in certain circumstances, the welfare of a person with mental disorders might be a further factor to take into account, in addition to medical evidence, in assessing whether it is necessary to place the person in an institution. However, the objective need for accommodation and social assistance must not automatically lead to the imposition of measures involving deprivation of liberty. The Court considers that any protective measure should reflect as far as possible the wishes of persons capable of expressing their will. Failure to seek their opinion could give rise to situations of abuse and hamper the exercise of the rights of vulnerable persons. Therefore, any measure taken without prior consultation of the interested person will as a rule require careful scrutiny.", "154. The Court is prepared to accept that the applicant’s placement in the home was the direct consequence of the state of his mental health, the declaration of his partial incapacity and his placement under partial guardianship. Some six days after being appointed as the applicant’s guardian, Ms R.P., without knowing him or meeting him, decided on the strength of the file to ask social services to place him in a home for people with mental disorders. Social services, for their part, likewise referred to the applicant’s mental health in finding that the request should be granted. It seems clear to the Court that if the applicant had not been deprived of legal capacity on account of his mental disorder, he would not have been deprived of his liberty. Therefore, the present case should be examined under sub-paragraph (e) of Article 5 § 1.", "155. It remains to be determined whether the applicant’s placement in the home satisfied the requirements laid down in the Court’s case-law concerning the detention of mentally disordered persons (see the principles outlined in paragraph 145 above). In this connection, the Court reiterates that in deciding whether an individual should be detained as a “person of unsound mind”, the national authorities are to be recognised as having a certain discretion since it is in the first place for them to evaluate the evidence adduced before them in a particular case; the Court’s task is to review under the Convention the decisions of those authorities (see Winterwerp, cited above, § 40, and Luberti v. Italy, 23 February 1984, § 27, Series A no. 75).", "156. In the instant case it is true that the expert medical report produced in the course of the proceedings for the applicant’s legal incapacitation referred to the disorders from which he was suffering. However, the relevant examination took place before November 2000, whereas the applicant was placed in the Pastra social care home on 10 December 2002 (see paragraphs 10 and 14 above). More than two years thus elapsed between the expert psychiatric assessment relied on by the authorities and the applicant’s placement in the home, during which time his guardian did not check whether there had been any change in his condition and did not meet or consult him. Unlike the Government (see paragraph 138 above), the Court considers that this period is excessive and that a medical opinion issued in 2000 cannot be regarded as a reliable reflection of the state of the applicant’s mental health at the time of his placement. It should also be noted that the national authorities were not under any legal obligation to order a psychiatric report at the time of the placement. The Government explained in that connection that the applicable provisions were those of the Social Assistance Act and not those of the Health Act (see paragraphs 57-60 and 137 above). Nevertheless, in the Court’s view, the lack of a recent medical assessment would be sufficient to conclude that the applicant’s placement in the home was not lawful for the purposes of Article 5 § 1 (e).", "157. As a subsidiary consideration, the Court observes that the other requirements of Article 5 § 1 (e) were not satisfied in the present case either. As regards the need to justify the placement by the severity of the disorder, it notes that the purpose of the 2000 medical report was not to examine whether the applicant’s state of health required his placement in a home for people with mental disorders, but solely to determine the issue of his legal protection. While it is true that Article 5 § 1 (e) authorises the confinement of a person suffering from a mental disorder even where no medical treatment is necessarily envisaged (see Hutchison Reid, cited above, § 52), such a measure must be properly justified by the seriousness of the person’s condition in the interests of ensuring his or her own protection or that of others. In the present case, however, it has not been established that the applicant posed a danger to himself or to others, for example because of his psychiatric condition; the simple assertion by certain witnesses that he became aggressive when he drank (see paragraph 10 above) cannot suffice for this purpose. Nor have the authorities reported any acts of violence on the applicant’s part during his time in the Pastra social care home.", "158. The Court also notes deficiencies in the assessment of whether the disorders warranting the applicant’s confinement still persisted. Although he was under the supervision of a psychiatrist (see paragraph 31 above), the aim of such supervision was not to provide an assessment at regular intervals of whether he still needed to be kept in the Pastra social care home for the purposes of Article 5 § 1 (e). Indeed, no provision was made for such an assessment under the relevant legislation.", "159. Having regard to the foregoing, the Court observes that the applicant’s placement in the home was not ordered “in accordance with a procedure prescribed by law” and that his deprivation of liberty was not justified by sub-paragraph (e) of Article 5 § 1. Furthermore, the Government have not indicated any of the other grounds listed in sub-paragraphs (a) to (f) which might have justified the deprivation of liberty in issue in the present case.", "160. There has therefore been a violation of Article 5 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION", "161. The applicant complained that he had been unable to have the lawfulness of his placement in the Pastra social care home reviewed by a court.", "He relied on Article 5 § 4 of the Convention, which provides:", "“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”", "A. The parties’ submissions", "1. The applicant", "162. The applicant submitted that domestic law did not provide for any specific remedies in respect of his situation, such as a periodic judicial review of the lawfulness of his placement in a home for people with mental disorders. He added that, since he was deemed incapable of taking legal action on his own, domestic law did not afford him the possibility of applying to a court for permission to leave the Pastra social care home. He stated that he had likewise been unable to seek to have the placement agreement terminated, in view of the conflict of interests with his guardian, who at the same time was the Director of the home.", "163. The applicant further noted that he had not been allowed to apply to the courts to initiate the procedure provided for in Article 277 of the CCP (see paragraph 51 above) and that, moreover, such action would not have led to a review of the lawfulness of his deprivation of liberty but solely to a review of the conditions justifying partial guardianship in his case.", "164. He further submitted that the procedure provided for in Articles 113 and 115 of the FC (see paragraphs 49-50 above) in theory afforded his close relatives the right to ask the mayor to replace the guardian or to compel the mayor to terminate the placement agreement. However, this had been an indirect remedy not accessible to him, since his half-sister and his father’s second wife had not been willing to initiate such a procedure.", "2. The Government", "165. The Government submitted that, since the purpose of the applicant’s placement in the home had been to provide social services, he could at any time have asked for the placement agreement to be terminated without the courts needing to be involved. In their submission, in so far as the applicant alleged a conflict of interests with his guardian, he could have relied on Article 123 § 1 of the FC (see paragraph 50 above) and requested the guardianship authority to appoint an ad hoc representative, who could then have consented to a change of permanent residence.", "166. The Government further contended that the applicant’s close relatives had not availed themselves of the possibility open to some of them under Articles 113 and 115 of the FC of requesting the guardianship authority to replace his guardian or of challenging steps taken by the latter. They added that in the event of a refusal, his relatives could have appealed to a court, which would have considered the merits of the case and, if appropriate, appointed a new guardian, who could then have terminated the placement agreement. This, in the Government’s submission, would have enabled them to challenge in substance the agreement signed between Ms R.P. and the Pastra social care home.", "167. Lastly, the Government submitted that an action for restoration of legal capacity (under Article 277 of the CCP – see paragraph 51 above) constituted a remedy for the purposes of Article 5 § 4 since, if a sufficient improvement in the applicant’s health had been observed and he had been released from guardianship, he would have been free to leave the home.", "B. The Court’s assessment", "1. General principles", "168. The Court reiterates that Article 5 § 4 entitles detained persons to institute proceedings for a review of compliance with the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty. The notion of “lawfulness” under paragraph 4 of Article 5 has the same meaning as in paragraph 1, so that a detained person is entitled to a review of the “lawfulness” of his detention in the light not only of the requirements of domestic law but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the “lawful” detention of a person according to Article 5 § 1 (see E. v. Norway, 29 August 1990, § 50, Series A no. 181-A). The reviewing “court” must not have merely advisory functions but must have the competence to “decide” the “lawfulness” of the detention and to order release if the detention is unlawful (see Ireland v. the United Kingdom, 18 January 1978, § 200, Series A no. 25; Weeks v. the United Kingdom, 2 March 1987, § 61, Series A no. 114; Chahal v. the United Kingdom, 15 November 1996, § 130, Reports of Judgments and Decisions 1996 ‑ V; and A. and Others v. the United Kingdom [GC], no. 3455/05, § 202, ECHR 2009).", "169. The forms of judicial review satisfying the requirements of Article 5 § 4 may vary from one domain to another, and will depend on the type of deprivation of liberty in issue. It is not the Court’s task to inquire into what would be the most appropriate system in the sphere under examination (see Shtukaturov, cited above, § 123).", "170. Nevertheless, Article 5 § 4 guarantees a remedy that must be accessible to the person concerned and must afford the possibility of reviewing compliance with the conditions to be satisfied if the detention of a person of unsound mind is to be regarded as “lawful” for the purposes of Article 5 § 1 (e) (see Ashingdane, cited above, § 52). The Convention requirement for an act of deprivation of liberty to be amenable to independent judicial scrutiny is of fundamental importance in the context of the underlying purpose of Article 5 of the Convention to provide safeguards against arbitrariness. What is at stake is both the protection of the physical liberty of individuals and their personal security (see Varbanov, cited above, § 58). In the case of detention on the ground of mental illness, special procedural safeguards may be called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves (see, among other authorities, Winterwerp, cited above, § 60).", "171. Among the principles emerging from the Court’s case-law under Article 5 § 4 concerning “persons of unsound mind” are the following:", "(a) a person detained for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings “at reasonable intervals” before a court to put in issue the “lawfulness” – within the meaning of the Convention – of his detention;", "(b) Article 5 § 4 requires the procedure followed to have a judicial character and to afford the individual concerned guarantees appropriate to the kind of deprivation of liberty in question; in order to determine whether proceedings provide adequate guarantees, regard must be had to the particular nature of the circumstances in which they take place;", "(c) the judicial proceedings referred to in Article 5 § 4 need not always be attended by the same guarantees as those required under Article 6 § 1 for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation (see Megyeri v. Germany, 12 May 1992, § 22, Series A no. 237-A).", "2. Application of these principles in the present case", "172. The Court observes that the Government have not indicated any domestic remedy capable of affording the applicant the direct opportunity to challenge the lawfulness of his placement in the Pastra social care home and the continued implementation of that measure. It also notes that the Bulgarian courts were not involved at any time or in any way in the placement and that the domestic legislation does not provide for automatic periodic judicial review of placement in a home for people with mental disorders. Furthermore, since the applicant’s placement in the home is not recognised as a deprivation of liberty in Bulgarian law (see paragraph 58 above), there is no provision for any domestic legal remedies by which to challenge its lawfulness in terms of a deprivation of liberty. In addition, the Court notes that, according to the domestic courts’ practice, the validity of the placement agreement could have been challenged on the ground of lack of consent only on the guardian’s initiative (see paragraph 54 above).", "173. In so far as the Government referred to the procedure for restoration of legal capacity under Article 277 of the CCP (see paragraph 167 above), the Court notes that the purpose of this procedure would not have been to examine the lawfulness of the applicant’s placement per se, but solely to review his legal status (see paragraphs 233-46 below). The Government also referred to the procedures for reviewing steps taken by the guardian (see paragraphs 165-66 above). The Court considers it necessary to determine whether such remedies could have given rise to a judicial review of the lawfulness of the placement as required by Article 5 § 4.", "174. In this connection, it notes that the 1985 FC entitled close relatives of a person under partial guardianship to challenge decisions by the guardianship authority, which in turn was required to review steps taken by the guardian – including the placement agreement – and to replace the latter in the event of failure to discharge his or her duties (see paragraphs 48-50 above). However, the Court notes that those remedies were not directly accessible to the applicant. Moreover, none of the persons theoretically entitled to make use of them displayed any intention of acting in Mr Stanev’s interests, and he himself was unable to act on his own initiative without their approval.", "175. It is uncertain whether the applicant could have requested the mayor to demand explanations from the guardian or to suspend the implementation of the placement agreement on the ground that it was invalid. In any event, it appears that since he had been partially deprived of legal capacity, the law did not entitle him to apply of his own motion to the courts to challenge steps taken by the mayor (see paragraph 49 above); this was not disputed by the Government.", "176. The same conclusion applies as regards the possibility for the applicant to ask the mayor to replace his guardian temporarily with an ad hoc representative on the basis of an alleged conflict of interests and then to apply for the termination of the placement agreement. The Court observes in this connection that the mayor has discretion to determine whether there is a conflict of interests (see paragraph 50 above). Lastly, it does not appear that the applicant could have applied of his own motion to the courts for a review on the merits in the event of the mayor’s refusal to take such action.", "177. The Court therefore concludes that the remedies referred to by the Government were either inaccessible to the applicant or were not judicial in nature. Furthermore, none of them can give rise to a direct review of the lawfulness of the applicant’s placement in the Pastra social care home in terms of domestic law and the Convention.", "178. Having regard to those considerations, the Court dismisses the Government’s objection of failure to exhaust domestic remedies (see paragraphs 97-99 above) and finds that there has been a violation of Article 5 § 4 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION", "179. The applicant submitted that he had not been entitled to compensation for the alleged violations of his rights under Article 5 §§ 1 and 4 of the Convention.", "He relied on Article 5 § 5, which provides:", "“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”", "A. The parties’ submissions", "180. The applicant submitted that the circumstances in which unlawful detention could give rise to compensation were exhaustively listed in the State Responsibility for Damage Act 1988 (see paragraphs 62-67 above) and that his own situation was not covered by any of them. He further complained that there were no legal remedies by which compensation could be claimed for a violation of Article 5 § 4.", "181. The Government maintained that the compensation procedure under the 1988 Act could have been initiated if the applicant’s placement in the home had been found to have no legal basis. Since the placement had been found to be consistent with domestic law and with his own interests, he had not been able to initiate the procedure in question.", "B. The Court’s assessment", "182. The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (see Wassink v. the Netherlands, 27 September 1990, § 38, Series A no. 185-A, and Houtman and Meeus v. Belgium, no. 22945/07, § 43, 17 March 2009). The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Convention institutions. In this connection, the effective enjoyment of the right to compensation guaranteed by Article 5 § 5 must be ensured with a sufficient degree of certainty (see Ciulla v. Italy, 22 February 1989, § 44, Series A no. 148; Sakık and Others v. Turkey, 26 November 1997, § 60, Reports 1997-VII; and N.C. v. Italy [GC], no. 24952/94, § 49, ECHR 2002-X).", "183. Turning to the present case, the Court observes that, regard being had to its finding of a violation of paragraphs 1 and 4 of Article 5, paragraph 5 is applicable. It must therefore ascertain whether, prior to the present judgment, the applicant had an enforceable right at domestic level to compensation for damage, or whether he will have such a right following the adoption of this judgment.", "184. The Court reiterates in this connection that in order to find a violation of Article 5 § 5, it has to establish that the finding of a violation of one of the other paragraphs of Article 5 could not give rise, either before or after the Court’s judgment, to an enforceable claim for compensation before the domestic courts (see Brogan and Others v. the United Kingdom, 29 November 1988, §§ 66-67, Series A no. 145-B).", "185. Having regard to the case-law cited above, the Court considers that it must first be determined whether the violation of Article 5 §§ 1 and 4 found in the present case could have given rise, before the delivery of this judgment, to an entitlement to compensation before the domestic courts.", "186. As regards the violation of Article 5 § 1, the Court observes that section 2(1) of the State Responsibility for Damage Act 1988 provides for compensation for damage resulting from a judicial decision ordering certain types of detention where the decision has been set aside as having no legal basis (see paragraph 62 above). However, that was not the case in this instance. It appears from the case file that the Bulgarian judicial authorities have not at any stage found the measure to have been unlawful or otherwise in breach of Article 5 of the Convention. Moreover, the Government’s line of argument has been that the applicant’s placement in the home was in accordance with domestic law. The Court therefore concludes that the applicant was unable to claim any compensation under the above-mentioned provision in the absence of an acknowledgment by the national authorities that the placement was unlawful.", "187. As to the possibility under section 1 of the same Act of claiming compensation for damage resulting from unlawful acts by the authorities (see paragraph 63 above), the Court observes that the Government have not produced any domestic decisions indicating that that provision is applicable to cases involving the placement of people with mental disorders in social care homes on the basis of civil-law agreements.", "188. Furthermore, since no judicial remedy by which to review the lawfulness of the placement was available under Bulgarian law, the applicant could not have invoked State liability as a basis for receiving compensation for the violation of Article 5 § 4.", "189. The question then arises whether the judgment in the present case, in which violations of paragraphs 1 and 4 of Article 5 have been found, will entitle the applicant to claim compensation under Bulgarian law. The Court observes that it does not appear from the relevant legislation that any such remedy exists; nor, indeed, have the Government submitted any arguments to prove the contrary.", "190. It has therefore not been shown the applicant was able to avail himself prior to the Court’s judgment in the present case, or will be able to do so after its delivery, of a right to compensation for the violation of Article 5 §§ 1 and 4.", "191. There has therefore been a violation of Article 5 § 5.", "IV. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 13", "192. The applicant complained that the living conditions in the Pastra social care home were poor and that no effective remedy was available under Bulgarian law in respect of that complaint. He relied on Article 3 of the Convention taken alone and in conjunction with Article 13. These provisions are worded as follows:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 13", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. Preliminary objection of failure to exhaust domestic remedies", "193. In their memorial before the Grand Chamber, the Government for the first time raised an objection of failure to exhaust domestic remedies in respect of the complaint under Article 3 of the Convention. They submitted that the applicant could have obtained compensation for the living conditions in the home by bringing an action under the State Responsibility for Damage Act 1988.", "194. The Court reiterates that, in accordance with Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see N.C. v. Italy, cited above, § 44). Where an objection of failure to exhaust domestic remedies is raised out of time for the purposes of Rule 55, an estoppel arises and the objection must accordingly be dismissed (see Velikova v. Bulgaria, no. 41488/98, § 57, ECHR 2000-VI, and Tanrıbilir v. Turkey, no. 21422/93, § 59, 16 November 2000).", "195. In the present case the Government have not cited any circumstances justifying their failure to raise the objection in question at the time of the Chamber’s examination of the admissibility of the case.", "196. That being so, the Court observes that the Government are estopped from raising this objection, which must accordingly be dismissed.", "B. Merits of the complaint under Article 3 of the Convention", "1. The parties’ submissions", "197. The applicant submitted that the poor living conditions in the Pastra social care home, in particular the inadequate food, the deplorable sanitary conditions, the lack of heating, the enforced medical treatment, the overcrowded bedrooms and the absence of therapeutic and cultural activities, amounted to treatment prohibited by Article 3.", "198. He observed that the Government had already acknowledged in 2004 that such living conditions did not comply with the relevant European standards and had undertaken to make improvements (see paragraph 82 above). However, the conditions had remained unchanged, at least until late 2009.", "199. In their observations before the Chamber, the Government acknowledged the deficiencies in the living conditions at the home. They explained that the inadequate financial resources set aside for institutions of this kind formed the main obstacle to ensuring the requisite minimum standard of living. They also stated that, following an inspection by the Social Assistance Agency, the authorities had resolved to close the Pastra social care home and to take steps to improve living conditions for its residents. In the Government’s submission, since the living conditions were the same for all the home’s residents and there had been no intention to inflict ill-treatment, the applicant had not been subjected to degrading treatment.", "200. Before the Grand Chamber the Government stated that renovation work had been carried out in late 2009 in the part of the home where the applicant lived (see paragraph 24 above).", "2. The Court’s assessment", "(a) General principles", "201. Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 90, ECHR 2000-XI, and Poltoratskiy v. Ukraine, no. 38812/97, § 130, ECHR 2003-V).", "202. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see Kudła, cited above, § 91, and Poltoratskiy, cited above, § 131).", "203. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV). Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance or driving them to act against their will or conscience (see Jalloh v. Germany [GC], no. 54810/00, § 68, ECHR 2006-IX). In this connection, the question whether such treatment was intended to humiliate or debase the victim is a factor to be taken into account, although the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 (see Peers v. Greece, no. 28524/95, §§ 67, 68 and 74, ECHR 2001-III, and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI).", "204. The suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. Yet it cannot be said that deprivation of liberty in itself raises an issue under Article 3 of the Convention. Nevertheless, under that Article the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (see Kudła, cited above, §§ 92-94).", "205. When assessing the conditions of a deprivation of liberty under Article 3 of the Convention, account has to be taken of their cumulative effects and the duration of the measure in question (see Kalashnikov, cited above, §§ 95 and 102; Kehayov v. Bulgaria, no. 41035/98, § 64, 18 January 2005; and Iovchev v. Bulgaria, no. 41211/98, § 127, 2 February 2006). In this connection an important factor to take into account, besides the material conditions, is the detention regime. In assessing whether a restrictive regime may amount to treatment contrary to Article 3 in a given case, regard must be had to the particular conditions, the stringency of the regime, its duration, the objective pursued and its effects on the person concerned (see Kehayov, cited above, § 65).", "(b) Application of these principles in the present case", "206. In the present case the Court has found that the applicant’s placement in the Pastra social care home – a situation for which the domestic authorities must be held responsible – amounts to a deprivation of liberty within the meaning of Article 5 of the Convention (see paragraph 132 above). It follows that Article 3 is applicable to the applicant’s situation, seeing that it prohibits the inhuman and degrading treatment of anyone in the care of the authorities. The Court would emphasise that the prohibition of ill-treatment in Article 3 applies equally to all forms of deprivation of liberty, and in particular makes no distinction according to the purpose of the measure in issue; it is immaterial whether the measure entails detention ordered in the context of criminal proceedings or admission to an institution with the aim of protecting the life or health of the person concerned.", "207. The Court notes at the outset that, according to the Government, the building in which the applicant lives was renovated in late 2009, resulting in an improvement in his living conditions (see paragraph 200 above); the applicant did not dispute this. The Court therefore considers that the applicant’s complaint should be taken to refer to the period between 2002 and 2009. The Government have not denied that during that period the applicant’s living conditions corresponded to his description, and have also acknowledged that, for economic reasons, there were certain deficiencies in that regard (see paragraphs 198-99 above).", "208. The Court observes that although the applicant shared a room measuring 16 sq. m with four other residents, he enjoyed considerable freedom of movement both inside and outside the home, a fact likely to lessen the adverse effects of a limited sleeping area (see Valašinas v. Lithuania, no. 44558/98, § 103, ECHR 2001-VIII).", "209. Nevertheless, other aspects of the applicant’s physical living conditions are a considerable cause for concern. In particular, it appears that the food was insufficient and of poor quality. The building was inadequately heated and in winter the applicant had to sleep in his coat. He was able to have a shower once a week in an unhygienic and dilapidated bathroom. The toilets were in an execrable state and access to them was dangerous, according to the findings by the CPT (see paragraphs 21, 22, 23, 78 and 79 above). In addition, the home did not return clothes to the same people after they were washed (see paragraph 21 above), which was likely to arouse a feeling of inferiority in the residents.", "210. The Court cannot overlook the fact that the applicant was exposed to all the above-mentioned conditions for a considerable period of approximately seven years. Nor can it ignore the findings of the CPT, which, after visiting the home, concluded that the living conditions there at the relevant time could be said to amount to inhuman and degrading treatment. Despite being aware of those findings, during the period from 2002 to 2009 the Government did not act on their undertaking to close down the institution (see paragraph 82 above). The Court considers that the lack of financial resources cited by the Government is not a relevant argument to justify keeping the applicant in the living conditions described (see Poltoratskiy, cited above, § 148).", "211. It would nevertheless emphasise that there is no suggestion that the national authorities deliberately intended to inflict degrading treatment. However, as noted above (see paragraph 203), the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3.", "212. In conclusion, while noting the improvements apparently made to the Pastra social care home since late 2009, the Court considers that, taken as a whole, the living conditions to which the applicant was exposed during a period of approximately seven years amounted to degrading treatment.", "213. There has therefore been a violation of Article 3 of the Convention.", "C. Merits of the complaint under Article 13 taken in conjunction with Article 3", "1. The parties’ submissions", "214. The applicant submitted that no domestic remedies, including the claim for compensation envisaged in the State Responsibility for Damage Act 1988, had been accessible to him without his guardian’s consent. He pointed out in that connection that he had not had a guardian for a period of more than two years, between the end of Ms R.P.’s designated term on 31 December 2002 (see paragraph 12 above) and the appointment of a new guardian on 2 February 2005 (see paragraph 17 above). Moreover, his new guardian was also the Director of the social care home. There would therefore have been a conflict of interests between the applicant and his guardian in the event of any dispute concerning the living conditions at the home, and the applicant could not have expected the guardian to support his allegations.", "215. In the Government’s submission, an action for restoration of legal capacity (see paragraphs 51-52 above) constituted a remedy by which the applicant could have secured a review of his status and, in the event of being released from partial guardianship, he could have left the social care home and ceased to endure the living conditions about which he complained.", "216. The Government added that the applicant could have complained directly about the living conditions at the Pastra social care home by bringing an action under section 1 of the State Responsibility for Damage Act 1988 (see paragraphs 62-67 above).", "2. The Court’s assessment", "217. The Court refers to its settled case-law to the effect that Article 13 guarantees the existence of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law (see McGlinchey and Others v. the United Kingdom, no. 50390/99, § 62, ECHR 2003 ‑ V).", "218. Where, as in the present case, the Court has found a breach of Article 3, compensation for the non-pecuniary damage flowing from the breach should in principle be part of the range of available remedies (ibid., § 63; and Iovchev, cited above, § 143).", "219. In the instant case the Court observes that section 1(1) of the State Responsibility for Damage Act 1988 has indeed been interpreted by the domestic courts as being applicable to damage suffered by prisoners as a result of poor detention conditions (see paragraphs 63-64 above). However, according to the Government’s submissions, the applicant’s placement in the Pastra social care home is not regarded as detention under domestic law (see paragraphs 108-11 above). Therefore, he would not have been entitled to compensation for the poor living conditions in the home. Moreover, there are no judicial precedents in which this provision has been found to apply to allegations of poor conditions in social care homes (see paragraph 65 above), and the Government have not adduced any arguments to prove the contrary. Having regard to those considerations, the Court concludes that the remedies in question were not effective within the meaning of Article 13.", "220. As to the Government’s reference to the procedure for restoration of legal capacity (see paragraph 215 above), the Court considers that, even assuming that as a result of that remedy the applicant had been able to have his legal capacity restored and to leave the home, he would not have been awarded any compensation for his treatment during his placement there. Accordingly, the remedy in question did not afford appropriate redress.", "221. There has therefore been a violation of Article 13 of the Convention taken in conjunction with Article 3.", "V. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "222. The applicant alleged that Bulgarian law had not afforded him the possibility of applying to a court for restoration of his legal capacity. He relied on Article 6 § 1 of the Convention, the relevant parts of which read:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "A. Preliminary remarks", "223. The Grand Chamber observes that the Government have maintained before it the objection they raised before the Chamber alleging failure to exhaust domestic remedies. The objection was based on Article 277 of the CCP, which, according to the Government, entitled the applicant to apply personally to the courts for restoration of his legal capacity.", "224. The Grand Chamber notes that in its admissibility decision of 29 June 2010 the Chamber observed that the applicant disputed the accessibility of the remedy which, according to the Government, would have enabled him to obtain a review of his legal status and that that argument underpinned his complaint under Article 6 § 1. The Chamber thus joined the Government’s objection to its examination of the merits of the complaint in question. The Grand Chamber sees no reason to depart from the Chamber’s conclusion.", "B. Merits", "1. The parties’ submissions", "225. The applicant maintained that he had been unable personally to institute proceedings for restoration of his legal capacity under Article 277 of the CCP and that this was borne out by the Supreme Court’s decision no. 5/79 (see paragraph 51 above). In support of that argument, he submitted that the Dupnitsa District Court had declined to examine his application for judicial review of the mayor’s refusal to bring such proceedings, on the ground that the guardian had not countersigned the form of authority (see paragraphs 39-40 above).", "226. In addition, although an action for restoration of legal capacity had not been accessible to him, the applicant had attempted to bring such an action through the public prosecutor’s office, the mayor and his guardian (the Director of the home). However, since no application to that end had been lodged with the courts, all his attempts had failed. Accordingly, the applicant had never had the opportunity to have his case heard by a court.", "227. The Government submitted that Article 277 of the CCP had offered the applicant direct access to a court at any time to have his legal status reviewed. They pointed out that, contrary to what the applicant alleged, the Supreme Court’s decision no. 5/79 had interpreted Article 277 of the CCP as meaning that persons partially deprived of legal capacity could apply directly to the courts to be released from guardianship. The only condition for making such an application was the production of evidence of an improvement in their condition. However, as was indicated by the medical assessment carried out at the public prosecutor’s request (see paragraph 37 above), which had concluded that the applicant’s condition still persisted and that he was incapable of looking after his own interests, it was clear that the applicant had not had any such evidence available. The Government thus concluded that the applicant had not attempted to apply to the court on his own because he had been unable to substantiate his application.", "228. The Government further observed that the courts regularly considered applications for restoration of legal capacity submitted, for example, by a guardian (see paragraph 52 above).", "2. The Court’s assessment", "(a) General principles", "229. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18). This “right to a court”, of which the right of access is an aspect, may be relied on by anyone who considers on arguable grounds that an interference with the exercise of his or her civil rights is unlawful and complains that no possibility was afforded to submit that claim to a court meeting the requirements of Article 6 § 1 (see, inter alia, Roche v. the United Kingdom [GC], no. 32555/96, § 117, ECHR 2005-X, and Salontaji-Drobnjak v. Serbia, no. 36500/05, § 132, 13 October 2009).", "230. The right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access “by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals” (see Ashingdane, cited above, § 57). In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (ibid.; see also, among many other authorities, Cordova v. Italy, no. 40877/98, § 54, ECHR 2003-I, and the recapitulation of the relevant principles in Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294-B).", "231. Furthermore, the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly true for the guarantees enshrined in Article 6, in view of the prominent place held in a democratic society by the right to a fair trial with all the guarantees under that Article (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 45, ECHR 2001-VIII).", "232. Lastly, the Court observes that in most of the cases before it involving “persons of unsound mind”, the domestic proceedings have concerned their detention and were thus examined under Article 5 of the Convention. However, it has consistently held that the “procedural” guarantees under Article 5 §§ 1 and 4 of the Convention are broadly similar to those under Article 6 § 1 (see, for instance, Winterwerp, cited above, § 60; Sanchez-Reisse v. Switzerland, 21 October 1986, §§ 51 and 55, Series A no. 107; Kampanis v. Greece, 13 July 1995, § 47, Series A no. 318-B; and Ilijkov v. Bulgaria, no. 33977/96, § 103, 26 July 2001). In the Shtukaturov case (cited above, § 66), in determining whether or not the incapacitation proceedings had been fair, the Court had regard, mutatis mutandis, to its case-law under Article 5 §§ 1 (e) and 4 of the Convention.", "(b) Application of these principles in the present case", "233. The Court observes at the outset that in the present case none of the parties disputed the applicability of Article 6 to proceedings for restoration of legal capacity. The applicant, who has been partially deprived of legal capacity, complained that Bulgarian law did not afford him direct access to a court to apply to have his capacity restored. The Court has had occasion to clarify that proceedings for restoration of legal capacity are directly decisive for the determination of “civil rights and obligations” (see Matter v. Slovakia, no. 31534/96, § 51, 5 July 1999). Article 6 § 1 of the Convention is therefore applicable in the instant case.", "234. It remains to be determined whether the applicant’s access to court was restricted and, if so, whether the restriction pursued a legitimate aim and was proportionate to it.", "235. The Court notes firstly that the parties differed as to whether a legally incapacitated person had locus standi to apply directly to the Bulgarian courts for restoration of legal capacity; the Government argued that this was the case, whereas the applicant maintained the contrary.", "236. The Court accepts the applicant’s argument that, in order to make an application to a Bulgarian court, a person under partial guardianship is required to seek the support of the persons referred to in Article 277 of the 1952 CCP (which has become Article 340 of the 2007 CCP). The list of persons entitled to apply to the courts under Bulgarian law does not explicitly include a person under partial guardianship (see paragraphs 45 and 51 above).", "237. With regard to the Supreme Court’s 1980 decision (see paragraph 51 above), the Court observes that, although the fourth sentence of paragraph 10 of the decision, read in isolation, might give the impression that a person under partial guardianship has direct access to a court, the Supreme Court explains further on that, where the guardian of a partially incapacitated person and the guardianship authority refuse to institute proceedings for restoration of legal capacity, the person concerned may request the public prosecutor to do so. In the Court’s view, the need to seek the intervention of the public prosecutor is scarcely reconcilable with direct access to court for persons under partial guardianship in so far as the decision to intervene is left to the prosecutor’s discretion. It follows that the Supreme Court’s 1980 decision cannot be said to have clearly affirmed the existence of such access in Bulgarian law.", "238. The Court further notes that the Government have not produced any court decisions showing that persons under partial guardianship have been able to apply of their own motion to a court to have the measure lifted; however, they have shown that at least one application for restoration of legal capacity has been successfully brought by the guardian of a fully incapacitated person (see paragraph 52 above).", "239. The Court thus considers it established that the applicant was unable to apply for restoration of his legal capacity other than through his guardian or one of the persons listed in Article 277 of the CCP.", "240. The Court would also emphasise that, as far as access to court is concerned, domestic law makes no distinction between those who are entirely deprived of legal capacity and those who, like the applicant, are only partially incapacitated. Moreover, domestic legislation does not provide for any possibility of automatic periodic review of whether the grounds for placing a person under guardianship remain valid. Lastly, in the applicant’s case the measure in question was not limited in time.", "241. Admittedly, the right of access to the courts is not absolute and requires by its very nature that the State should enjoy a certain margin of appreciation in regulating the sphere under examination (see Ashingdane, cited above, § 57). In addition, the Court acknowledges that restrictions on a person’s procedural rights, even where the person has been only partially deprived of legal capacity, may be justified for the person’s own protection, the protection of the interests of others and the proper administration of justice. However, the importance of exercising these rights will vary according to the purpose of the action which the person concerned intends to bring before the courts. In particular, the right to ask a court to review a declaration of incapacity is one of the most important rights for the person concerned since such a procedure, once initiated, will be decisive for the exercise of all the rights and freedoms affected by the declaration of incapacity, not least in relation to any restrictions that may be placed on the person’s liberty (see also Shtukaturov, cited above, § 71). The Court therefore considers that this right is one of the fundamental procedural rights for the protection of those who have been partially deprived of legal capacity. It follows that such persons should in principle enjoy direct access to the courts in this sphere.", "242. However, the State remains free to determine the procedure by which such direct access is to be realised. At the same time, the Court considers that it would not be incompatible with Article 6 for national legislation to provide for certain restrictions on access to court in this sphere, with the sole aim of ensuring that the courts are not overburdened with excessive and manifestly ill-founded applications. Nevertheless, it seems clear that this problem may be solved by other, less restrictive means than automatic denial of direct access, for example by limiting the frequency with which applications may be made or introducing a system for prior examination of their admissibility on the basis of the file.", "243. The Court further observes that eighteen of the twenty national legal systems studied in this context provide for direct access to the courts for any partially incapacitated persons wishing to have their status reviewed. In seventeen States such access is open even to those declared fully incapable (see paragraphs 88-90 above). This indicates that there is now a trend at European level towards granting legally incapacitated persons direct access to the courts to seek restoration of their capacity.", "244. The Court is also obliged to note the growing importance which international instruments for the protection of people with mental disorders are now attaching to granting them as much legal autonomy as possible. It refers in this connection to the United Nations Convention of 13 December 2006 on the Rights of Persons with Disabilities and to Recommendation No. R (99) 4 of the Committee of Ministers of the Council of Europe on principles concerning the legal protection of incapable adults, which recommend that adequate procedural safeguards be put in place to protect legally incapacitated persons to the greatest extent possible, to ensure periodic reviews of their status and to make appropriate remedies available (see paragraphs 72-73 above).", "245. In the light of the foregoing, in particular the trends emerging in national legislation and the relevant international instruments, the Court considers that Article 6 § 1 of the Convention must be interpreted as guaranteeing in principle that anyone who has been declared partially incapable, as is the applicant’s case, has direct access to a court to seek restoration of his or her legal capacity.", "246. In the instant case the Court has observed that direct access of this kind is not guaranteed with a sufficient degree of certainty by the relevant Bulgarian legislation. That finding is sufficient for it to conclude that there has been a violation of Article 6 § 1 of the Convention in respect of the applicant.", "247. The above conclusion dispenses the Court from examining whether the indirect legal remedies referred to by the Government provided the applicant with sufficient guarantees that his case would be brought before a court.", "248. The Court therefore dismisses the Government’s objection of failure to exhaust domestic remedies (see paragraph 223 above) and concludes that there has been a violation of Article 6 § 1 of the Convention.", "VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 13", "249. The applicant alleged that the restrictive guardianship regime, including his placement in the Pastra social care home and the physical living conditions there, had amounted to unjustified interference with his right to respect for his private life and home. He submitted that Bulgarian law had not afforded him a sufficient and accessible remedy in that respect. He relied on Article 8 of the Convention taken alone and in conjunction with Article 13.", "Article 8 provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "250. The applicant maintained in particular that the guardianship regime had not been geared to his individual case but had entailed restrictions automatically imposed on anyone who had been declared incapable by a judge. He added that the fact of having to live in the Pastra social care home had effectively barred him from taking part in community life and from developing relations with persons of his choosing. The authorities had not attempted to find alternative therapeutic solutions in the community or to take measures that were less restrictive of his personal liberty, with the result that he had developed “institutionalisation syndrome”, that is, the loss of social skills and individual personality traits.", "251. The Government contested those allegations.", "252. Having regard to its conclusions under Articles 3, 5, 6 and 13 of the Convention, the Court considers that no separate issue arises under Article 8 of the Convention taken alone and/or in conjunction with Article 13. It is therefore unnecessary to examine this complaint.", "VII. ARTICLES 46 AND 41 OF THE CONVENTION", "A. Article 46 of the Convention", "253. The relevant parts of Article 46 of the Convention read as follows:", "“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.", "2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”", "254. The Court reiterates that by Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects (see Menteş and Others v. Turkey (Article 50), 24 July 1998, § 24, Reports 1998-IV; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; and Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004-I). The Court further notes that it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order to discharge its obligation under Article 46 of the Convention (see Scozzari and Giunta, cited above; Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I; and Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005-IV).", "255. However, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V, and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 148, 17 September 2009).", "256. In the instant case the Court considers that it is necessary, in view of its finding of a violation of Article 5, to indicate individual measures for the execution of this judgment. It observes that it has found a violation of that Article on account of the failure to comply with the requirement that any deprivation of liberty must be “in accordance with a procedure prescribed by law” and the lack of justification for the applicant’s deprivation of liberty under sub-paragraph (e) or any of the other sub-paragraphs of Article 5 § 1. It has also noted deficiencies in the assessment of the presence and persistence of any disorders warranting placement in a social care home (see paragraphs 148-60 above).", "257. The Court considers that in order to redress the effects of the breach of the applicant’s rights, the authorities should ascertain whether he wishes to remain in the home in question. Nothing in this judgment should be seen as an obstacle to his continued placement in the Pastra social care home or any other home for people with mental disorders if it is established that he consents to the placement. However, should the applicant object to such placement, the authorities should re-examine his situation without delay in the light of the findings of this judgment.", "258. The Court notes that it has also found a violation of Article 6 § 1 on account of the lack of direct access to a court for a person who has been partially deprived of legal capacity with a view to seeking its restoration (see paragraphs 233-48 above). Having regard to that finding, the Court recommends that the respondent State envisage the necessary general measures to ensure the effective possibility of such access.", "B. Article 41 of the Convention", "259. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "1. Damage", "260. The applicant did not submit any claims in respect of pecuniary damage but sought 64,000 euros (EUR) for non-pecuniary damage.", "261. He asserted in particular that he had endured poor living conditions in the social care home and claimed a sum of EUR 14,000 on that account. In respect of his placement in the Pastra social care home, he stated that he had experienced feelings of anxiety, distress and frustration ever since that measure had begun to be implemented in December 2002. His enforced placement in the home had also had a significant impact on his life as he had been removed from his social environment and subjected to a very restrictive regime, making it harder for him to reintegrate into the community. He submitted that although there was no comparable case-law concerning unlawful detention in a social care home for people with mental disorders, regard should be had to the just satisfaction awarded by the Court in cases involving unlawful detention in psychiatric institutions. He referred, for example, to the judgments in Gajcsi v. Hungary (no. 34503/03, §§ 28-30, 3 October 2006) and Kayadjieva v. Bulgaria (no. 56272/00, § 57, 28 September 2006), while noting that he had been deprived of his liberty for a considerably longer period than the applicants in the above-mentioned cases. He submitted that a sum of EUR 30,000 would constitute an equitable award on that account. Lastly, he added that his lack of access to the courts to seek a review of his legal status had restricted the exercise of a number of freedoms in the sphere of his private life, causing additional non-pecuniary damage, for which an award of EUR 20,000 could provide redress.", "262. The Government submitted that the applicant’s claims were excessive and unfounded. They argued that if the Court were to make any award in respect of non-pecuniary damage, it should not exceed the amounts awarded in judgments against Bulgaria concerning compulsory psychiatric admission. The Government referred to the judgments in Kayadjieva (cited above, § 57), Varbanov (cited above, § 67), and Kepenerov v. Bulgaria (no. 39269/98, § 42, 31 July 2003).", "263. The Court observes that it has found violations of several provisions of the Convention in the present case, namely Articles 3, 5 (§§ 1, 4 and 5), 6 and 13. It considers that the applicant must have endured suffering as a result of his placement in the home, which began in December 2002 and is still ongoing, his inability to secure a judicial review of that measure and his lack of access to a court to apply for release from partial guardianship. This suffering undoubtedly aroused in him a feeling of helplessness and anxiety. The Court further considers that the applicant sustained non-pecuniary damage on account of the degrading living conditions he had to endure for more than seven years.", "264. Ruling on an equitable basis, as required by Article 41 of the Convention, the Court considers that the applicant should be awarded an aggregate sum of EUR 15,000 in respect of non-pecuniary damage.", "2. Costs and expenses", "265. The applicant did not submit any claims in respect of costs and expenses.", "3. Default interest", "266. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant was born in 1956 in Ruse, where he lived until December 2002 and where his half-sister and his father’s second wife, his only close relatives, also live. On 20 December 1990 a panel of occupational physicians declared him unfit to work. The panel found that as a result of being diagnosed with schizophrenia in 1975, the applicant had a 90% degree of disablement but did not require assistance. He is in receipt of an invalidity pension on that account.", "A. The applicant’s placement under partial guardianship and placement in a social care home for people with mental disorders", "10. On an unspecified date in 2000, at the request of the applicant’s two relatives, the Ruse regional prosecutor applied to the Ruse Regional Court ( Окръжен съд ) for a declaration of total legal incapacity in respect of the applicant. In a judgment of 20 November 2000, the court declared the applicant to be partially incapacitated on the grounds that he had been suffering from simple schizophrenia since 1975, and that his ability to manage his own affairs and interests and to realise the consequences of his own acts had been impaired. The court found that the applicant’s condition was not so serious as to warrant a declaration of total incapacity. It observed, in particular, that during the period from 1975 to 2000 he had been admitted to a psychiatric hospital on several occasions. The court took into account an expert medical report produced in the course of the proceedings and interviewed the applicant. Furthermore, according to certain other people it interviewed, the applicant had sold all his possessions, begged for a living, spent all his money on alcohol and became aggressive whenever he drank.", "11. That judgment was upheld in a judgment of 12 April 2001 by the Veliko Tarnovo Court of Appeal ( Апелативен съд ) on an appeal by the applicant, and was subsequently transmitted to the Ruse Municipal Council on 7 June 2001 for the appointment of a guardian.", "12. Since the applicant’s family members had refused to take on any guardianship responsibilities, on 23 May 2002 the Municipal Council appointed Ms R.P., a council officer, as the applicant’s guardian until 31 December 2002.", "13. On 29 May 2002 R.P. asked the Ruse social services to place the applicant in a social care home for people with mental disorders. She appended to the application form a series of documents including a psychiatric diagnosis. Social services drew up a welfare report on the applicant, noting on 23 July 2002 that he was suffering from schizophrenia, that he lived alone in a small, run-down annexe to his half-sister’s house and that his half-sister and his father’s second wife had stated that they did not wish to act as his guardian. The requirements for placement in a social care home were therefore deemed to be fulfilled.", "14. On 10 December 2002 a welfare-placement agreement was signed between R.P. and the social care home for adults with mental disorders near the village of Pastra in the municipality of Rila (“the Pastra social care home”), an institution under the responsibility of the Ministry of Labour and Social Policy. The applicant was not informed of the agreement.", "15. Later that day, the applicant was taken by ambulance to the Pastra social care home, some 400 km from Ruse. Before the Court, he stated that he had not been told why he was being placed in the home or for how long; the Government did not dispute this.", "16. On 14 December 2002, at the request of the Director of the Pastra social care home, the applicant was registered as having his home address in the municipality of Rila. The residence certificate stated that his address had been changed for the purpose of his “permanent supervision”. According to the most recent evidence submitted in February 2011, the applicant was still living in the home at that time.", "17. On 9 September 2005 the applicant’s lawyer requested the Rila Municipal Council to appoint a guardian for her client. In a letter dated 16 September 2005, she was informed that the Municipal Council had decided on 2 February 2005 to appoint the Director of the Pastra social care home as the applicant’s guardian.", "B. The applicant’s stay in the Pastra social care home", "1. Provisions of the placement agreement", "18. The agreement signed between the guardian R.P. and the Pastra social care home on 10 December 2002 (see paragraph 14 above) did not mention the applicant’s name. It stated that the home was to provide food, clothing, medical services, heating and, obviously, accommodation, in return for payment of an amount determined by law. It appears that the applicant’s entire invalidity pension was transferred to the home to cover that amount. The agreement stipulated that 80% of the sum was to be used as payment for the services provided and the remaining 20% put aside for personal expenses. According to the information in the case file, the applicant’s invalidity pension, as updated in 2008, amounted to 130 Bulgarian levs (BGN – approximately 65 euros (EUR)). The agreement did not specify the duration of the provision of the services in question.", "2. Description of the site", "19. The Pastra social care home is located in an isolated area of the Rila mountains in south-west Bulgaria. It is accessible via a dirt track from the village of Pastra, the nearest locality 8 km away.", "20. The home, built in the 1920s, comprises three buildings, where its residents, all male, are housed according to the state of their mental health. According to a report produced by the Social Assistance Agency in April 2009, there were seventy-three people living in the home, one was in hospital and two had absconded. Among the residents, twenty-three were entirely lacking legal capacity, two were partially lacking capacity and the others enjoyed full legal capacity. Each building has a yard surrounded by a high metal fence. The applicant was placed in block 3 of the home, reserved for residents with the least serious health problems, who were able to move around the premises and go alone to the nearest village with prior permission.", "21. According to the applicant, the home was decaying, dirty and rarely heated in winter and, as a result, he and the other residents were obliged to sleep in their coats during winter. The applicant shared a room measuring 16 sq. m with four other residents and the beds were practically side by side. He had only a bedside table in which to store his clothes, but he preferred to keep them in his bed at night for fear that they might be stolen and replaced with old clothes. The home’s residents did not have their own items of clothing because clothes were not returned to the same people after being washed.", "3. Diet and hygiene and sanitary conditions", "22. The applicant asserted that the food provided at the home was insufficient and of poor quality. He had no say in the choice of meals and was not allowed to help prepare them.", "23. Access to the bathroom, which was unhealthy and decrepit, was permitted once a week. The toilets in the courtyard, which were unhygienic and in a very poor state of repair, consisted of holes in the ground covered by dilapidated shelters. Each toilet was shared by at least eight people. Toiletries were available only sporadically.", "4. Recent developments", "24. In their memorial before the Grand Chamber, the Government stated that renovation work had been carried out in late 2009 in the part of the home where the applicant lived, including the sanitary facilities. The home now had central heating. The diet was varied and regularly included fruit and vegetables as well as meat. Residents had access to television, books and games. The State provided them all with clothes. The applicant did not dispute these assertions.", "5. Journeys undertaken by the applicant", "25. The home’s management kept hold of the applicant’s identity papers, allowing him to leave the home only with special permission from the Director. He regularly went to the village of Pastra. It appears that during the visits he mainly provided domestic help to villagers or carried out tasks at the village restaurant.", "26. Between 2002 and 2006 the applicant returned to Ruse three times on leave of absence. Each trip was authorised for a period of about ten days. The journey cost BGN 60 (approximately EUR 30), which was paid to the applicant by the home’s management.", "27. The applicant returned to Pastra before the end of his authorised period of leave after his first two visits to Ruse. According to a statement made by the Director of the home to the public prosecutor’s office on an unspecified date, the applicant came back early because he was unable to manage his finances and had no accommodation.", "28. The third period of leave was authorised from 15 to 25 September 2006. After the applicant failed to return on the scheduled date, the Director of the home wrote to the Ruse municipal police on 13 October 2006, asking them to search for the applicant and transfer him to Sofia, where employees of the home would be able to collect him and take him back to Pastra. On 19 October 2006 the Ruse police informed the Director that the applicant’s whereabouts had been discovered but that the police could not transfer him because he was not the subject of a wanted notice. He was driven back to the social care home on 31 October 2006, apparently by staff of the home.", "6. Opportunities for cultural and recreational activities", "29. The applicant had access to a television set, several books and a chessboard in a common room at the home until 3 p.m., after which the room was kept locked. The room was not heated in winter and the residents kept their coats, hats and gloves on when inside. No other social, cultural or sports activities were available.", "7. Correspondence", "30. The applicant submitted that the staff at the social care home had refused to supply him with envelopes for his correspondence and that, as he did not have access to his own money, he could not buy any either. The staff would ask him to give them any sheets of paper he wished to post so that they could put them in envelopes and send them off for him.", "8. Medical treatment", "31. It appears from a medical certificate of 15 June 2005 (see paragraph 37 below) that, following his placement in the home in 2002, the applicant was given anti-psychotic medication (carbamazepine (600 mg)) under the monthly supervision of a psychiatrist.", "32. In addition, at the Grand Chamber hearing the applicant’s representatives stated that their client had been in stable remission since 2006 and had not undergone any psychiatric treatment in recent years.", "C. Assessment of the applicant’s social skills during his stay in Pastra and conclusions of the psychiatric report drawn up at his lawyer’s request", "33. Once a year, the Director of the social care home and the home’s social worker drew up evaluation reports on the applicant’s behaviour and social skills. The reports indicated that the applicant was uncommunicative, preferred to stay on his own rather than join in group activities, refused to take his medication and had no close relatives to visit while on leave of absence. He was not on good terms with his half-sister and nobody was sure whether he had anywhere to live outside the social care home. The reports concluded that it was impossible for the applicant to reintegrate into society, and set the objective of ensuring that he acquired the necessary skills and knowledge for social resettlement and, in the long term, reintegration into his family. It appears that he was never offered any therapy to that end.", "34. The case file indicates that in 2005 the applicant’s guardian asked the Municipal Council to grant a social allowance to facilitate his reintegration into the community. Further to that request, on 30 December 2005 the municipal social assistance department carried out a “social assessment” ( социална оценка ) of the applicant, which concluded that he was incapable of working, even in a sheltered environment, and had no need for training or retraining, and that in those circumstances he was entitled to a social allowance to cover the costs of his transport, subsistence and medication. On 7 February 2007 the municipal social assistance department granted the applicant a monthly allowance of BGN 16.50 (approximately EUR 8). On 3 February 2009 the allowance was increased to BGN 19.50 (approximately EUR 10).", "35. In addition, at his lawyer’s request, the applicant was examined on 31 August 2006 by Dr V.S., a different psychiatrist from the one who regularly visited the social care home, and by a psychologist, Ms I.A. The report drawn up on that occasion concluded that the diagnosis of schizophrenia given on 15 June 2005 (see paragraph 37 below) was inaccurate in that the patient did not display all the symptoms of that condition. It stated that, although the applicant had suffered from the condition in the past, he had not shown any signs of aggression at the time of the examination but rather a suspicious attitude and a slight tendency towards “verbal aggression”; that he had not undergone any treatment for the condition between 2002 and 2006; and that his health had visibly stabilised. The report noted that no risk of deterioration of his mental health had been observed and stated that, in the opinion of the home’s Director, the applicant was capable of reintegrating into society.", "36. According to the report, the applicant’s stay in the Pastra social care home was very damaging to his health and it was desirable that he should leave the home, otherwise he was at risk of developing “institutionalisation syndrome” the longer he stayed there. The report added that it would be more beneficial to his mental health and social development to allow him to integrate into community life with as few restrictions as possible, and that the only aspect to monitor was his tendency towards alcohol abuse, which had been apparent prior to 2002. In the view of the experts who had examined the applicant, the behaviour of an alcohol-dependent person could have similar characteristics to that of a person with schizophrenia; accordingly, vigilance was required in the applicant’s case and care should be taken not to confuse the two conditions.", "D. The applicant’s attempts to obtain release from partial guardianship", "37. On 25 November 2004 the applicant, through his lawyer, asked the public prosecutor’s office to apply to the Regional Court to have his legal capacity restored. On 2 March 2005 the public prosecutor requested the Pastra social care home to send him a doctor’s opinion and other medical certificates concerning the applicant’s disorders in preparation for a possible application to the courts for restoration of his legal capacity. Further to that request, the applicant was admitted to a psychiatric hospital from 31 May to 15 June 2005 for a medical assessment. In a certificate issued on the latter date, the doctors attested that the applicant showed symptoms of schizophrenia. As his health had not deteriorated since he had been placed in the home in 2002, the regime to which he was subject there had remained unchanged. He had been on maintenance medication since 2002 under the monthly supervision of a psychiatrist. A psychological examination had revealed that he was agitated, tense and suspicious. His communication skills were poor and he was unaware of his illness. He had said that he wanted to leave the home at all costs. The doctors did not express an opinion either on his capacity for resettlement or on the need to keep him in the Pastra social care home.", "38. On 10 August 2005 the regional prosecutor refused to bring an action for restoration of the applicant’s legal capacity on the grounds that, in the opinion of the doctors, the Director of the Pastra social care home and the home’s social worker, the applicant was unable to cope on his own, and that the home, where he could undergo medical treatment, was the most suitable place for him to live. The applicant’s lawyer challenged the refusal to bring the action, arguing that her client should have the opportunity to assess by himself whether or not, having regard to the living conditions at the home, it was in his interests to remain there. She pointed out that the enforced continuation of his stay in the home, on the pretext of providing him with treatment in his own interests, amounted in practice to a deprivation of liberty, a situation that was unacceptable. A person could not be placed in an institution without his or her consent. In accordance with the legislation in force, anyone under partial guardianship was free to choose his or her place of residence, with the guardian’s agreement. The choice of residence was therefore not a matter within the competence of the prosecution service. Despite those objections, the regional prosecutor’s refusal was upheld on 11 October 2005 by the appellate prosecutor, and subsequently on 29 November 2005 by the Chief Public Prosecutor’s Office at the Supreme Court of Cassation.", "39. On 9 September 2005 the applicant, through his lawyer, asked the mayor of Rila to bring a court action for his release from partial guardianship. In a letter of 16 September 2005, the mayor of Rila refused his request, stating that there was no basis for such an action in view of the medical certificate of 15 June 2005, the opinions of the Director and the social worker, and the conclusions reached by the public prosecutor’s office. On 28 September 2005 the applicant’s lawyer applied to the Dupnitsa District Court for judicial review of the mayor’s decision, under Article 115 of the Family Code (“the FC”) (see paragraph 49 below). In a letter of 7 October 2005, the District Court stated that since the applicant was partially lacking legal capacity he was required to submit a valid form of authority certifying that his lawyer was representing him, and that it should be specified whether his guardian had intervened in the procedure. On an unspecified date the applicant’s lawyer submitted a copy of the form of authority signed by the applicant. She also requested that the guardian join the proceedings as an interested party or that an ad hoc representative be appointed. On 18 January 2006 the court held a hearing at which the representative of the mayor of Rila objected that the form of authority was invalid as it had not been countersigned by the guardian. The guardian, who was present at the hearing, stated that he was not opposed to the applicant’s application, but that the latter’s old-age pension was insufficient to meet his needs and that, accordingly, the Pastra social care home was the best place for him to live.", "40. The Dupnitsa District Court gave judgment on 10 March 2006. As to the admissibility of the application for judicial review, it held that, although the applicant had instructed his lawyer to represent him, she was not entitled to act on his behalf since the guardian had not signed the form of authority. However, it held that the guardian’s endorsement of the application at the public hearing had validated all the procedural steps taken by the lawyer, and that the application was therefore admissible. As to the merits, the court dismissed the application, finding that the guardian had no legitimate interest in contesting the mayor’s refusal, given that he could apply independently and directly for the applicant to be released from partial guardianship. Since the judgment was not subject to appeal, it became final.", "41. Lastly, the applicant asserted that he had made several oral requests to his guardian to apply for his release from partial guardianship and to allow him to leave the home. However, his requests had always been refused.", "I. State liability", "62. The State and Municipalities Responsibility for Damage Act 1988 ( Закон за отговорността на държавата и общините за вреди – title amended in 2006) provides in section 2(1) that the State is liable for damage caused to private individuals as a result of a judicial decision ordering certain types of detention where the decision has been set aside as having no legal basis.", "63. Section 1(1) of the same Act provides that the State and municipalities are liable for damage caused to private individuals and other legal entities as a result of unlawful decisions, acts or omissions by their own authorities or officials while discharging their administrative duties.", "64. In a number of decisions, various domestic courts have found this provision to be applicable to the damage suffered by prisoners as a result of poor conditions or inadequate medical treatment in prison and have, where appropriate, partly or fully upheld claims for compensation brought by the persons concerned (реш. от 26.01.2004 г. по гр. д. № 959/2003, ВКС, IV г. о. and реш. № 330 от 7.08.2007 г. по гр. д. № 92/2006, ВКС, IV г. о.).", "65. There are no court decisions in which the above position has been found to apply to allegations of poor living conditions in social care homes.", "66. Moreover, it appears from the domestic courts’ case-law that, under section 1(1) of the Act in question, anyone whose health has deteriorated because bodies under the authority of the Ministry of Health have failed in their duty to provide a regular supply of medication may hold the administrative authorities liable and receive compensation (реш. № 211 от 27.05.2008 г. по гр. д. № 6087/2007, ВКС, V г. о.).", "67. Lastly, the State and its authorities are subject to the ordinary rules on tortious liability for other forms of damage resulting, for example, from the death of a person under guardianship while absconding from a social care home for adults with a mental deficiency, on the ground that the staff of the home had failed to discharge their duty of permanent supervision (реш. № 693 от 26.06.2009 г. по гр. д. № 8/2009, ВКС, III г. о.).", "J. Arrest by the police under the Ministry of the Interior Act 2006", "68. Under this Act, the police are, inter alia, authorised to arrest anyone who, on account of severe mental disturbance and through his or her conduct, poses a threat to public order or puts his or her own life in manifest danger (section 63(1)-(3)). The person concerned may challenge the lawfulness of the arrest before a court, which must give an immediate ruling (section 63(4)).", "69. Furthermore, the police’s responsibilities include searching for missing persons (section 139(3)).", "K. Information submitted by the applicant about searches for persons who have absconded from social care homes for adults with mental disorders", "70. The Bulgarian Helsinki Committee conducted a survey of police stations regarding searches for people who had absconded from social care homes of this type. It appears from the survey that there is no uniform practice. Some police officers said that when they were asked by employees of a home to search for a missing person, they carried out the search and took the person to the police station, before informing the home. Other officers explained that they searched for the person but, not being empowered to perform an arrest, simply notified the staff of the home, who took the person back themselves.", "L. Statistics submitted by the applicant on judicial proceedings concerning deprivation of legal capacity", "71. The Bulgarian Helsinki Committee obtained statistics from 8 regional courts on the outcome of proceedings for restoration of legal capacity between January 2002 and September 2009. During this period 677 persons were deprived of legal capacity. Proceedings to restore capacity were instituted in 36 cases: 10 of them ended with the lifting of the measure; total incapacitation was changed to partial incapacitation in 8 cases; the applications were rejected in 4 cases; the courts discontinued the proceedings in 7 cases; and the other cases are still pending." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Legal status of persons placed under partial guardianship and their representation before the courts", "42. Section 5 of the Persons and Family Act of 9 August 1949 provides that persons who are unable to look after their own interests on account of mental illness or mental deficiency must be entirely deprived of legal capacity and declared legally incapable. Adults with milder forms of such disorders are to be partially incapacitated. Persons who are entirely deprived of legal capacity are placed under full guardianship ( настойничество ), whereas those who are partially incapacitated are placed under partial guardianship ( попечителство – literally “trusteeship”). In accordance with sections 4 and 5 of the Act, persons under partial guardianship may not perform legal transactions without their guardian’s consent. They may, however, carry out ordinary acts forming part of everyday life and have access to the resources obtained in consideration for their work. Accordingly, the guardian of a partially incapacitated person cannot independently perform legal transactions that are binding on that person. This means that contracts signed only by the guardian, without the consent of the person partially lacking legal capacity, are invalid.", "43. Under Article 16 § 2 of the Code of Civil Procedure (“the CCP”), persons under full guardianship are represented before the courts by their guardian. Persons under partial guardianship, however, are entitled to take part in court proceedings, but require their guardian’s consent. Accordingly, the guardian of a partially incapacitated person does not perform the role of a legal representative. The guardian cannot act on behalf of the person under partial guardianship, but may express agreement or disagreement with the person’s individual transactions (Сталев, Ж., Българско гражданско процесуално право, София, 2006 г., стр. 171). In particular, a person under partial guardianship may instruct a lawyer provided that the form of authority is signed by the guardian (ibid., стр. 173).", "B. Procedure for placement under partial guardianship", "44. There are two stages to the procedure for placing a person under partial guardianship: the declaration of partial incapacity and the appointment of a guardian.", "1. Declaration of partial incapacity by the courts", "45. The first stage involves a judicial procedure which at the material time was governed by Articles 275 to 277 of the 1952 CCP, which have been reproduced unchanged in Articles 336 to 340 of the new 2007 CCP. A declaration of partial incapacity may be sought by the person’s spouse or close relatives, by the public prosecutor or by any other interested party. The court reaches its decision after examining the person concerned at a public hearing – or, failing that, after forming a first-hand impression of the person’s condition – and interviewing the person’s close relatives. If the statements thus obtained are insufficient, the court may have recourse to other evidence, such as an expert medical assessment. According to domestic case-law, an assessment must be ordered where the court is unable to conclude from any other information in the file that the request for deprivation of legal capacity is unfounded (Решение на ВС № 1538 от 21.VIII.1961 г. по гр. д. № 5408/61 г.; Решение на ВС № 593 от 4.III.1967 г. по гр. д. № 3218/1966 г.).", "2. Appointment of a guardian by the administrative authorities", "46. The second stage involves an administrative procedure for the appointment of a guardian, which at the material time was governed by Chapter X (Articles 109 to 128) of the 1985 FC; these provisions have been reproduced, with only minor amendments, in Articles 153 to 174 of the new 2009 FC. The administrative stage is conducted by an authority referred to as “the guardianship authority”, namely the mayor or any other municipal council officer designated by him or her.", "47. The guardian should preferably be appointed from among the relatives of the person concerned who are best able to defend his or her interests.", "C. Review of measures taken by the guardian and possibility of replacement", "48. Measures taken by the guardian are subject to review by the guardianship authority. At the authority’s request, the guardian must report on his or her activities. If any irregularities are observed, the authority may request that they be rectified or may order the suspension of the measures in question (see Articles 126 § 2 and 125 of the 1985 FC, and Articles 170 and 171 §§ 2 and 3, of the 2009 FC). It is unclear from domestic law whether persons under partial guardianship may apply to the mayor individually or through another party to suspend measures taken by the guardian.", "49. Decisions by the mayor, as the guardianship authority, and any refusal by the mayor to appoint a guardian or to take other steps provided for in the FC are, for their part, amenable to judicial review. They may be challenged by interested parties or the public prosecutor before the district court, which gives a final decision on the merits (Article 115 of the 1985 FC). This procedure allows close relatives to request a change of guardian in the event of a conflict of interests (Решение на ВС № 1249 от 23.XII.1993 г. по гр. д. № 897/93 г.). According to domestic case-law, fully incapacitated persons are not among the “interested parties” entitled to initiate such proceedings (Определение № 5771 от 11.06.2003 г. на ВАС по адм. д. № 9248/2002). There is no domestic case-law showing that a partially incapacitated person is authorised to do so.", "50. Furthermore, the guardianship authority may at any time replace a guardian who fails to discharge his or her duties (Article 113 of the 1985 FC). By Article 116 of the 1985 FC, a person cannot be appointed as a guardian where there is a conflict of interests between that person and the person under partial guardianship. Article 123 of the 1985 FC provides that a deputy guardian is to be appointed where the guardian is unable to discharge his or her duties or where there is a conflict of interests. In both cases, the guardianship authority may also appoint an ad hoc representative.", "D. Procedure for restoration of legal capacity", "51. By virtue of Article 277 of the 1952 CCP, this procedure is similar to the partial-guardianship procedure. It is open to anyone entitled to apply for a person to be placed under partial guardianship, and also to the guardianship authority and the guardian. The above-mentioned provision has been reproduced in Article 340 of the 2007 CCP. On 13 February 1980 the Plenary Supreme Court delivered a decision (no. 5/79) aimed at clarifying certain questions concerning the procedure for deprivation of legal capacity. Paragraph 10 of the decision refers to the procedure for restoration of legal capacity and reads as follows:", "“The rules applicable in the procedure for restoration of legal capacity are the same as those governing the procedure for deprivation of capacity (Articles 277 and 275 §§ 1 and 2 of the CCP). The persons who requested the measure or the close relatives are treated as respondent parties in the procedure. There is nothing to prevent the party that applied for a person to be deprived of legal capacity from requesting the termination of the measure if circumstances have changed.", "Persons under partial guardianship may request, either individually or with the consent of their guardian, that the measure be lifted. They may also ask the guardianship authority or the guardianship council to bring an action under Article 277 of the CCP in the regional court which deprived them of legal capacity. In such cases, they must show that the application is in their interests by producing a medical certificate. In the context of such an action, they will be treated as the claimant. Where the guardian of a partially incapacitated person, the guardianship authority or the guardianship council (in the case of a fully incapacitated person) refuses to bring an action for restoration of legal capacity, the incapacitated person may ask the public prosecutor to do so (Постановление № 5/79 от 13.II.1980 г., Пленум на ВС).”", "52. In addition, the Government cited a case in which proceedings for the review of the legal status of a person entirely deprived of legal capacity had been instituted at the guardian’s request and the person had been released from guardianship (Решение № 1301 от 12.11.2008 г. на ВКС по гр. Д. № 5560/2007 г., V г.о.).", "E. Validity of contracts signed by representatives of incapacitated persons", "53. Section 26(2) of the Obligations and Contracts Act 1950 provides that contracts that are in breach of the law or have been entered into in the absence of consent are deemed null and void.", "54. In accordance with section 27 of the same Act, contracts entered into by representatives of persons deprived of legal capacity in breach of the applicable rules are deemed voidable. A ground of incurable nullity may be raised on any occasion, whereas a ground of voidability may be raised only by means of a court action. The right to raise a ground of voidability becomes time-barred after a period of three years from the date of release from partial guardianship if a guardian is not appointed. In other cases, the period in question begins to run from the date on which a guardian is appointed (section 32(2), in conjunction with section 115(1)(e), of the above-mentioned Act; see also Решение на ВС № 668 от 14.III.1963 г. по гр. д. № 250/63 г., I г. о., Решение на Окръжен съд – Стара Загора от 2.2.2010 г. по т. д. № 381/2009 г. на I състав, Решение на Районен съд Стара Загора № 459 от 19.5.2009 г. по гр. д. № 1087/2008).", "F. Place of residence of legally incapacitated persons", "55. By virtue of Articles 120 and 122 § 3 of the 1985 FC, persons deprived of legal capacity are deemed to reside at the home address of their guardian unless “exceptional reasons” require them to live elsewhere. Where the place of residence is changed without the guardian’s consent, the guardian may request the district court to order the person’s return to the official address. By Article 163 §§ 2 and 3 of the 2009 FC, before reaching a decision in such cases, the court is required to interview the person under guardianship. If it finds that there are “exceptional reasons”, it must refuse to order the person’s return and must immediately inform the municipal social assistance department so that protective measures can be taken.", "56. The district court’s order may be appealed against to the president of the regional court, although its execution cannot be stayed.", "G. Placement of legally incapacitated persons in social care homes for adults with mental disorders", "57. Under the Social Assistance Act 1998, social assistance is available to people who, for medical and social reasons, are incapable of meeting their basic needs on their own through work, through their own assets or with the help of persons required by law to care for them (section 2 of the Act). Social assistance consists of the provision of various financial benefits, benefits in kind and social services, including placement in specialised institutions. Such benefits are granted on the basis of an individual assessment of the needs of the persons concerned and in accordance with their wishes and personal choices (section 16(2)).", "58. By virtue of the implementing regulations for the Social Assistance Act 1998 ( Правилник за прилагане на Закона за социално подпомагане ), three categories of institutions are defined as “specialised institutions” for the provision of social services: (1) children’s homes (homes for children deprived of parental care, homes for children with physical disabilities, homes for children with a mental deficiency); (2) homes for adults with disabilities (homes for adults with a mental deficiency, homes for adults with mental disorders, homes for adults with physical disabilities, homes for adults with sensory disorders, homes for adults with dementia); and (3) old people’s homes (Regulation 36(3)). Social services are provided in specialised institutions where it is no longer possible to receive them in the community (Regulation 36(4)). Under domestic law, placement of a legally incapacitated person in a social care home is not regarded as a form of deprivation of liberty.", "59. Similarly, in accordance with Decree no. 4 of 16 March 1999 on the conditions for obtaining social services ( Наредба № 4 за условията и реда за извършване на социални услуги ), adults with mental deficiencies are placed in specialised social care homes if it is impossible to provide them with the necessary medical care in a family environment (Articles 12, point (4), and 27 of the Decree). Article 33 § 1, point (3), of the Decree provides that when a person is placed in a social care home, a medical certificate concerning the person’s state of health must be produced. By Article 37 § 1 of the Decree, a placement agreement for the provision of social services is signed between the specialised institution and the person concerned or his or her legal representative, on the basis of a model approved by the Ministry of Labour and Social Policy. The person may be transferred to another home or may leave the institution in which he or she has been placed: (1) at his or her request or at the request of his or her legal representative, submitted in writing to the director of the institution; (2) if there is a change in the state of his or her mental and/or physical health such that it no longer corresponds to the profile of the home; (3) in the event of failure to pay the monthly social welfare contribution for more than one month; (4) in the event of systematic breaches of the institution’s internal rules; or (5) in the event of a confirmed addiction to narcotic substances.", "60. Furthermore, the system governing admission to a psychiatric hospital for compulsory medical treatment is set out in the Health Act 2005, which replaced the Public Health Act 1973.", "H. Appointment of an ad hoc representative in the event of a conflict of interests", "61. Article 16 § 6 of the CCP provides that, in the event of a conflict of interests between a person being represented and the representative, the court is to appoint an ad hoc representative. The Bulgarian courts have applied this provision in certain situations involving a conflict of interests between minors and their legal representative. Thus, the failure to appoint an ad hoc representative has been found to amount to a substantial breach of the rules governing paternity proceedings (Решение на ВС № 297 от 15.04.1987 г. по гр. д. № 168/87 г., II г. о.), disputes between adoptive and biological parents (Решение на ВС № 1381 от 10.05.1982 г. по гр. д. № 954/82 г., II г. о.) or property disputes (Решение № 643 от 27.07.2000 г. на ВКС по гр. д. № 27/2000 г., II г. о.; Определение на ОС – Велико Търново от 5.11.2008 г. по в. ч. гр. д. № 963/2008).", "III. RELEVANT INTERNATIONAL INSTRUMENTS", "A. Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106)", "72. This convention came into force on 3 May 2008. It was signed by Bulgaria on 27 September 2007 but has yet to be ratified. The relevant parts of the Convention provide:", "Article 12 Equal recognition before the law", "“1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.", "2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.", "3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.", "4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.", "5. Subject to the provisions of this Article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.”", "Article 14 Liberty and security of person", "“1. States Parties shall ensure that persons with disabilities, on an equal basis with others:", "(a) Enjoy the right to liberty and security of person;", "(b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.", "2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.”", "B. Recommendation No. R (99) 4 of the Committee of Ministers of the Council of Europe on principles concerning the legal protection of incapable adults (adopted on 23 February 1999)", "73. The relevant parts of this Recommendation read as follows.", "Principle 2 – Flexibility in legal response", "“1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal response to be made to different degrees of incapacity and various situations.", "...", "4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.”", "Principle 3 – Maximum preservation of capacity", "“1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.", "2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so.", "...”", "Principle 6 – Proportionality", "“1. Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned.", "2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention.”", "Principle 13 – Right to be heard in person", "“The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.”", "Principle 14 – Duration, review and appeal", "“1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews.", "...", "3. There should be adequate rights of appeal.”", "C. Reports on visits to Bulgaria by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)", "1. The CPT’s report on its visit from 16 to 22 December 2003, published on 24 June 2004", "74. This report outlines the situation of persons placed by the public authorities in social care homes for people with mental disorders or mental deficiency, which are under the authority of the Ministry of Labour and Social Policy. Part II.4 of the report is devoted to the Pastra social care home.", "75. The CPT noted that the home’s official capacity was 105; it had 92 registered male residents, of whom 86 were present at the time of the visit. Two residents had absconded and the others were on home leave. Some 90% of the residents were suffering from schizophrenia and the remainder had a mental deficiency. The majority had spent many years in the institution, discharges being quite uncommon.", "76. According to the CPT’s findings, the premises of the Pastra social care home were in a deplorable state of repair and hygiene and the home was inadequately heated.", "77. In particular, the buildings did not have running water. The residents washed in cold water in the yard and were often unshaven and dirty. The bathroom, to which they had access once a week, was rudimentary and dilapidated.", "78. The toilets, likewise located in the yard, consisted of decrepit shelters with holes dug in the ground. They were in an execrable state and access to them was dangerous. Furthermore, basic toiletries were rarely available.", "79. The report notes that the provision of food was inadequate. Residents received three meals a day, including 750 g of bread. Milk and eggs were never on offer, and fresh fruit and vegetables were rarely available. No provision was made for special diets.", "80. The only form of treatment at the home consisted of the provision of medication. The residents, who were treated as chronic psychiatric patients in need of maintenance therapy, were registered as outpatients with a psychiatrist in Dupnitsa. The psychiatrist visited the home once every two to three months, and also on request. In addition, residents could be taken to the psychiatrist – who held weekly surgeries in the nearby town of Rila – if changes in their mental condition were observed. All residents underwent a psychiatric examination twice a year, which was an occasion for them to have their medication reviewed and, if necessary, adjusted. Nearly all residents received psychiatric medication, which was recorded on a special card and administered by the nurses.", "81. Apart from the administration of medication, no therapeutic activities were organised for residents, who led passive, monotonous lives.", "82. The CPT concluded that these conditions had created a situation which could be said to amount to inhuman and degrading treatment. It requested the Bulgarian authorities to replace the Pastra social care home as a matter of urgency. In their response of 13 February 2004, the Bulgarian authorities acknowledged that the home was not in conformity with European care standards. They stated that it would be closed as a priority and that the residents would be transferred to other institutions.", "83. The CPT further observed, in part II.7 of its report, that in most cases placement of people with mental disabilities in a specialised institution led to a de facto deprivation of liberty. The placement procedure should therefore be accompanied by appropriate safeguards, among them an objective medical, and in particular psychiatric, assessment. It was also essential that these persons should have the right to bring proceedings by which the lawfulness of their placement could be decided speedily by a court. The CPT recommended that such a right be guaranteed in Bulgaria (see paragraph 52 of the report).", "2. The CPT’s report on its visit from 10 to 21 September 2006, published on 28 February 2008", "84. In this report the CPT again recommended that provision be made for the introduction of judicial review of the lawfulness of placement in a social care home (see paragraphs 176-77 of the report).", "85. It also recommended that efforts be made to ensure that the placement of residents in homes for people with mental disorders and/or deficiency conformed fully to the letter and spirit of the law. Contracts for the provision of social services should specify the legal rights of residents, including the possibilities for lodging complaints with an outside authority. Furthermore, residents who were incapable of understanding the contracts should receive appropriate assistance (see paragraph 178 of the report).", "86. Lastly, the CPT urged the Bulgarian authorities to take the necessary steps to avoid conflicts of interests arising from the appointment of an employee of a social care home as the guardian of a resident of the same institution (see paragraph 179 of the report).", "87. The CPT made a further visit to the Pastra social care home during its periodic visit to Bulgaria in October 2010.", "IV. COMPARATIVE LAW", "A. Access to a court for restoration of legal capacity", "88. A comparative study of the domestic law of twenty Council of Europe member States indicates that in the vast majority of cases (Croatia, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Luxembourg, Monaco, Poland, Portugal, Romania, Slovakia, Sweden, Switzerland and Turkey) the law entitles anyone who has been deprived of legal capacity to apply directly to the courts for discontinuation of the measure.", "89. In Ukraine, people who have been partially deprived of legal capacity may themselves apply for the measure to be lifted; this does not apply to those who have been declared fully incapable, who may nevertheless challenge before a court any measures taken by their guardian.", "90. Judicial proceedings for the discontinuation of an order depriving a person of legal capacity cannot be instituted directly by the person concerned in Latvia (where an application may be made by the public prosecutor or the guardianship council) or in Ireland.", "B. Placement of legally incapacitated persons in a specialised institution", "91. A comparative-law study of the legislation of twenty States Parties to the Convention shows that there is no uniform approach in Europe to the question of placement of legally incapacitated persons in specialised institutions, particularly as regards the authority competent to order the placement and the guarantees afforded to the person concerned. It may nevertheless be observed that in some countries (Austria, Estonia, Finland, France, Germany, Greece, Poland, Portugal and Turkey) the decision to place a person in a home on a long-term basis against his or her will is taken directly or approved by a judge.", "92. Other legal systems (Belgium, Denmark, Hungary, Ireland, Latvia, Luxembourg, Monaco and the United Kingdom) authorise the guardian, close relatives or the administrative authorities to decide on placement in a specialised institution without a judge’s approval being necessary. It also appears that in all the above-mentioned countries, the placement is subject to a number of substantive requirements, relating in particular to the person’s health, the existence of a danger or risk and/or the production of medical certificates. In addition, the obligation to interview or consult the person concerned on the subject of the placement, the setting of a time-limit by law or by the courts for the termination or review of the placement, and the possibility of legal assistance are among the safeguards provided in several national legal systems.", "93. In certain countries (Denmark, Estonia, Germany, Greece, Hungary, Ireland, Latvia, Poland, Slovakia, Switzerland and Turkey) the possibility of challenging the initial placement order before a judicial body is available to the person concerned without requiring the guardian’s consent.", "94. Lastly, several States (Denmark, Estonia, Finland, Germany, Greece, Ireland, Latvia, Poland, Switzerland and Turkey) directly empower the person concerned to apply periodically for judicial review of the lawfulness of the continued placement.", "95. It should also be noted that many countries’ laws on legal capacity or placement in specialised institutions have recently been amended (Austria: 2007; Denmark: 2007; Estonia: 2005; Finland: 1999; France: 2007; Germany: 1992; Greece: 1992; Hungary: 2004; Latvia: 2006; Poland: 2007; Ukraine: 2000; United Kingdom: 2005) or are in the process of being amended (Ireland). These legislative reforms are designed to increase the legal protection of persons lacking legal capacity by affording them either the right of direct access to court for a review of their status, or additional safeguards when they are placed in specialised institutions against their will.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "96. The applicant submitted that his placement in the Pastra social care home was in breach of Article 5 § 1 of the Convention.", "Article 5 § 1 provides:", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "(a) the lawful detention of a person after conviction by a competent court;", "(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;", "(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;", "(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;", "(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;", "(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”", "A. Preliminary remarks", "97. The Grand Chamber observes that the Government maintained before it the objection they raised before the Chamber, alleging failure to exhaust domestic remedies in respect of the complaint under Article 5 § 1.", "98. The objection was based on the following arguments. Firstly, the applicant could at any time have applied personally to a court for restoration of his legal capacity, under Article 277 of the Code of Civil Procedure (“the CCP”), and release from guardianship would have allowed him to leave the home of his own accord. Secondly, his close relatives had not availed themselves of the possibility open to some of them, under Articles 113 and 115 of the Family Code (“the FC”), of asking the guardianship authority to replace his guardian. According to the Government, in the event of a refusal the applicants’ relatives could have applied to a court, which would have considered the merits of the request and, if appropriate, appointed a new guardian, who would then have been able to terminate the placement agreement. The Government also submitted in substance that the applicant’s close relatives could have challenged the contract signed between the guardian R.P. and the Pastra social care home. Lastly, they indicated that the applicant himself could have requested the guardianship authority to appoint an ad hoc representative on account of his alleged conflict of interests with his guardian, with a view to requesting to leave the institution and establish his home elsewhere (Article 123 § 1 of the FC).", "99. The Grand Chamber observes that in its admissibility decision of 29 June 2010 the Chamber found that this objection raised questions that were closely linked to those arising in relation to the applicant’s complaint under Article 5 § 4 and therefore joined the objection to its examination of the merits under that provision.", "100. In addition, finding that the question whether there had been a “deprivation of liberty” within the meaning of Article 5 § 1 in the present case was closely linked to the merits of the complaint under that provision, the Chamber likewise joined that issue to its examination of the merits. The Grand Chamber sees no reason to call into question the Chamber’s findings on these issues.", "B. Whether the applicant was deprived of his liberty within the meaning of Article 5 § 1", "1. The parties’ submissions", "(a) The applicant", "101. The applicant contended that, although under domestic law placement of people with mental disorders in a social care institution was regarded as “voluntary”, his transfer to the Pastra social care home constituted a deprivation of liberty. He maintained that, as in Storck v. Germany (no. 61603/00, ECHR 2005-V), the objective and subjective elements of detention were present in his case.", "102. With regard to the nature of the measure, the applicant submitted that living in a social care home in a remote mountain location amounted to physical isolation from society. He could not have chosen to leave on his own initiative since, having no identity papers or money, he would soon have faced the risk of being stopped by the police for a routine check, a widespread practice in Bulgaria.", "103. Absences from the social care home were subject to permission. The distance of approximately 420 km between the institution and his home town and the fact that he had no access to his invalidity pension had made it impossible for him to travel to Ruse more than three times. The applicant further submitted that he had been denied permission to travel on many other occasions by the home’s management. He added that, in accordance with a practice with no legal basis, residents who left the premises for longer than the authorised period were treated as fugitives and were searched for by the police. He stated in that connection that on one occasion the police had arrested him in Ruse and that, although they had not taken him back to the home, the fact that the Director had asked for him to be located and transferred back had amounted to a decisive restriction on his right to personal liberty. He stated that he had been arrested and detained by the police pending the arrival of staff from the home to collect him, without being informed of the grounds for depriving him of his liberty. Since he had been transferred back under duress, it was immaterial that those involved had been employees of the home.", "104. The applicant further noted that his placement in the home had already lasted more than eight years and that his hopes of leaving one day were futile, as the decision had to be approved by his guardian.", "105. As to the consequences of his placement, the applicant highlighted the severity of the regime to which he was subject. His occupational activities, treatment and movements had been subject to thorough and practical supervision by the home’s employees. He had been required to follow a strict daily routine, getting up, going to bed and eating at set times. He had had no free choice as to his clothing, the preparation of his meals, participation in cultural events or the development of relations with other people, including intimate relationships as the home’s residents were all men. He had been allowed to watch television in the morning only. Accordingly, his stay in the home had caused a perceptible deterioration in his well-being and the onset of institutionalisation syndrome, in other words the inability to reintegrate into the community and lead a normal life.", "106. With regard to the subjective element, the applicant submitted that his situation differed from that examined in H.M. v. Switzerland (no. 39187/98, ECHR 2002-II), in which the applicant had consented to her placement in a nursing home. He himself had never given such consent. His guardian at the time, Ms R.P. (see paragraph 12 above), had not consulted him on the placement and, moreover, he did not even know her; nor had he been informed of the existence of the placement agreement of 10 December 2002 (see paragraph 14 above), which he had never signed. Those circumstances reflected a widespread practice in Bulgaria whereby once people were deprived of legal capacity, even partially, they were deemed incapable of expressing their wishes. In addition, it was clear from the medical documents that the applicant’s desire to leave the home had been interpreted not as a freely expressed wish, but rather as a symptom of his mental illness.", "107. Lastly, in H.M. v. Switzerland (cited above) the authorities had based their decision to place the applicant in a nursing home on a thorough examination showing that the living conditions in her own home had severely deteriorated as a result of her lack of cooperation with a social welfare authority. By contrast, the applicant in the present case had never been offered and had never refused alternative social care at home.", "(b) The Government", "108. In their written observations before the Chamber, the Government accepted that the circumstances of the case amounted to a “deprivation of liberty” within the meaning of Article 5 § 1 of the Convention. However, at the hearing and in the proceedings before the Grand Chamber, they contended that Article 5 was not applicable. They observed in that connection that the applicant had not been compulsorily admitted to a psychiatric institution by the public authorities under the Public Health Act, but had been housed in a social care home at his guardian’s request, on the basis of a civil-law agreement and in accordance with the rules on social assistance. Thus, persons in need of assistance, including those with mental disorders, could request various social and medical services, either directly or through their representatives, under the Social Assistance Act 1998 (see paragraphs 57-60 above). Homes for adults with mental disorders offered a wide range of services of this kind and placement in such institutions could not be seen as a deprivation of liberty.", "109. As to the particular circumstances of the case, the Government emphasised that the applicant had never expressly and consciously objected to his placement in the home, and it could not therefore be concluded that the measure had been involuntary. Furthermore, he had been free to leave the home at any time.", "110. In addition, the applicant had been encouraged to work in the village restaurant to the best of his abilities and had been granted leave of absence on three occasions. The reason he had twice returned from Ruse before the end of his authorised period of leave (see paragraph 27 above) was his lack of accommodation. The Government further submitted that the applicant had never been brought back to the home by the police. They acknowledged that in September 2006 the Director had been obliged to ask the police to search for him because he had not come back (see paragraph 28 above). However, it was clear from the case of Dodov v. Bulgaria (no. 59548/00, 17 January 2008) that the State had a positive obligation to take care of people housed in social care homes. In the Government’s submission, the steps taken by the Director had formed part of this duty of protection.", "111. The Government further observed that the applicant had lacked legal capacity and had not had the benefit of a supportive family environment, accommodation or sufficient resources to lead an independent life. Referring in that connection to the judgments in H.M. v. Switzerland (cited above) and Nielsen v. Denmark (28 November 1988, Series A no. 144), they submitted that the applicant’s placement in the home was simply a protective measure taken in his interests alone and constituted an appropriate response to a social and medical emergency; such a response could not be viewed as involuntary.", "(c) The third party", "112. Interights made the following general observations. It stated that it had carried out a survey of practices regarding placement of people with mental disorders in specialised institutions in central and east European countries. According to the conclusions of the survey, in most cases placement in such institutions could be regarded as amounting to a de facto deprivation of liberty.", "113. Social care homes were often located in rural or mountainous areas which were not easily accessible. Where they were situated near urban areas, they were surrounded by high walls or fences and the gates were kept locked. As a rule, residents were able to leave the premises only with the express permission of the director of the home, and for a limited period. In cases of unauthorised leave, the police had the power to search for and return the persons concerned. The same restrictive regime applied to all residents, without any distinction according to legal status – whether they had full, partial or no legal capacity – and in the view of Interights this was a decisive factor. No consideration at all was given to whether the placement was voluntary or involuntary.", "114. Regarding the analysis of the subjective aspect of the placement, Interights submitted that the consent of the persons concerned was a matter requiring careful attention. Thorough efforts should be made to ascertain their true wishes, notwithstanding any declaration of legal incapacity that might have been made in their case. Interights contended that in reality, when faced with a choice between a precarious, homeless existence and the relative security offered by a social care home, incapable persons in central and east European countries might opt for the latter solution, simply because no alternative services were offered by the State’s social welfare system. That did not mean, however, that the persons concerned could be said to have freely consented to the placement.", "2. The Court’s assessment", "(a) General principles", "115. The Court reiterates that the difference between deprivation of liberty and restrictions on liberty of movement, the latter being governed by Article 2 of Protocol No. 4, is merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends (see Guzzardi v. Italy, 6 November 1980, §§ 92-93, Series A no. 39). In order to determine whether someone has been deprived of his liberty, the starting-point must be his specific situation and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question (see Storck, cited above, § 71, and Guzzardi, cited above, § 92).", "116. In the context of deprivation of liberty on mental-health grounds, the Court has held that a person could be regarded as having been “detained” even during a period when he was in an open hospital ward with regular unescorted access to the unsecured hospital grounds and the possibility of unescorted leave outside the hospital (see Ashingdane v. the United Kingdom, 28 May 1985, § 42, Series A no. 93).", "117. Furthermore, in relation to the placement of mentally disordered persons in an institution, the Court has held that the notion of deprivation of liberty does not only comprise the objective element of a person’s confinement in a particular restricted space for a not negligible length of time. A person can only be considered to have been deprived of his liberty if, as an additional subjective element, he has not validly consented to the confinement in question (see Storck, cited above, § 74).", "118. The Court has found that there was a deprivation of liberty in circumstances such as the following: (a) where the applicant, who had been declared legally incapable and admitted to a psychiatric hospital at his legal representative’s request, had unsuccessfully attempted to leave the hospital (see Shtukaturov v. Russia, no. 44009/05, § 108, ECHR 2008); (b) where the applicant had initially consented to her admission to a clinic but had subsequently attempted to escape (see Storck, cited above, § 76); and (c) where the applicant was an adult incapable of giving his consent to admission to a psychiatric institution which, nonetheless, he had never attempted to leave (see H.L. v. the United Kingdom, no. 45508/99, §§ 89-94, ECHR 2004-IX).", "119. The Court has also held that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, §§ 64 ‑ 65, Series A no. 12), especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action (see H.L. v. the United Kingdom, cited above, § 90).", "120. In addition, the Court has had occasion to observe that the first sentence of Article 5 § 1 must be construed as laying down a positive obligation on the State to protect the liberty of those within its jurisdiction. Otherwise, there would be a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The State is therefore obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge (see Storck, cited above, § 102). Thus, having regard to the particular circumstances of the cases before it, the Court has held that the national authorities’ responsibility was engaged as a result of detention in a psychiatric hospital at the request of the applicant’s guardian (see Shtukaturov, cited above) and detention in a private clinic (see Storck, cited above).", "(b) Application of these principles in the present case", "121. The Court observes at the outset that it is unnecessary in the present case to determine whether, in general terms, any placement of a legally incapacitated person in a social care institution constitutes a “deprivation of liberty” within the meaning of Article 5 § 1. In some cases, the placement is initiated by families who are also involved in the guardianship arrangements and is based on civil-law agreements signed with an appropriate social care institution. Accordingly, any restrictions on liberty in such cases are the result of actions by private individuals and the authorities’ role is limited to supervision. The Court is not called upon in the present case to rule on the obligations that may arise under the Convention for the authorities in such situations.", "122. It observes that there are special circumstances in the present case. No members of the applicant’s family were involved in his guardianship arrangements, and the duties of guardian were assigned to a State official (Ms R.P.), who negotiated and signed the placement agreement with the Pastra social care home without any contact with the applicant, whom she had in fact never met. The placement agreement was implemented in a State-run institution by social services, which likewise did not interview the applicant (see paragraphs 12-15 above). The applicant was never consulted about his guardian’s choices, even though he could have expressed a valid opinion and his consent was necessary in accordance with the Persons and Family Act 1949 (see paragraph 42 above). That being so, he was not transferred to the Pastra social care home at his request or on the basis of a voluntary private-law agreement on admission to an institution to receive social assistance and protection. The Court considers that the restrictions complained of by the applicant are the result of various steps taken by public authorities and institutions through their officials, from the initial request for his placement in an institution and throughout the implementation of the relevant measure, and not of acts or initiatives by private individuals. Although there is no indication that the applicant’s guardian acted in bad faith, the above considerations set the present case apart from Nielsen (cited above), in which the applicant’s mother committed her son, a minor, to a psychiatric institution in good faith, which prompted the Court to find that the measure in question entailed the exercise of exclusive custodial rights over a child who was not capable of expressing a valid opinion.", "123. The applicant’s placement in the social care home can therefore be said to have been attributable to the national authorities. It remains to be determined whether the restrictions resulting from that measure amounted to a “deprivation of liberty” within the meaning of Article 5.", "124. With regard to the objective aspect, the Court observes that the applicant was housed in a block which he was able to leave, but emphasises that the question whether the building was locked is not decisive (see Ashingdane, cited above, § 42). While it is true that the applicant was able to go to the nearest village, he needed express permission to do so (see paragraph 25 above). Moreover, the time he spent away from the home and the places where he could go were always subject to controls and restrictions.", "125. The Court further notes that between 2002 and 2009 the applicant was granted leave of absence for three short visits (of about ten days) to Ruse (see paragraphs 26-28 above). It cannot speculate as to whether he could have made more frequent visits had he asked to do so. Nevertheless, it observes that such leave of absence was entirely at the discretion of the home’s management, who kept the applicant’s identity papers and administered his finances, including transport costs (see paragraphs 25-26 above). Furthermore, it would appear to the Court that the home’s location in a mountain region far away from Ruse (some 400 km) made any journey difficult and expensive for the applicant in view of his income and his ability to make his own travel arrangements.", "126. The Court considers that this system of leave of absence and the fact that the management kept the applicant’s identity papers placed significant restrictions on his personal liberty.", "127. Moreover, it is not disputed that when the applicant did not return from leave of absence in 2006, the home’s management asked the Ruse police to search for and return him (see paragraph 28 above). The Court can accept that such steps form part of the responsibilities assumed by the management of a home for people with mental disorders towards its residents. It further notes that the police did not escort the applicant back and that he has not proved that he was arrested pending the arrival of staff from the home. Nevertheless, since his authorised period of leave had expired, the staff returned him to the home without regard for his wishes.", "128. Accordingly, although the applicant was able to undertake certain journeys, the factors outlined above lead the Court to consider that, contrary to what the Government maintained, he was under constant supervision and was not free to leave the home without permission whenever he wished. With reference to the Dodov case (cited above), the Government maintained that the restrictions in issue had been necessary in view of the authorities’ positive obligations to protect the applicant’s life and health. The Court notes that, in the above-mentioned case, the applicant’s mother suffered from Alzheimer’s disease and that, as a result, her memory and other mental capacities had progressively deteriorated, to the extent that the nursing home staff had been instructed not to leave her unattended. In the present case, however, the Government have not shown that the applicant’s state of health was such as to put him at immediate risk, or to require the imposition of any special restrictions to protect his life and limb.", "129. As regards the duration of the measure, the Court observes that it was not specified and was thus indefinite since the applicant was listed in the municipal registers as having his permanent address at the home, where he still remains (having lived there for more than eight years). This period is sufficiently lengthy for him to have felt the full adverse effects of the restrictions imposed on him.", "130. As to the subjective aspect of the measure, it should be noted that, contrary to the requirements of domestic law (see paragraph 42 above), the applicant was not asked to give his opinion on his placement in the home and never explicitly consented to it. Instead, he was taken to Pastra by ambulance and placed in the home without being informed of the reasons for or duration of that measure, which had been taken by his officially assigned guardian. The Court observes in this connection that there are situations where the wishes of a person with impaired mental faculties may validly be replaced by those of another person acting in the context of a protective measure and that it is sometimes difficult to ascertain the true wishes or preferences of the person concerned. However, the Court has already held that the fact that a person lacks legal capacity does not necessarily mean that he is unable to comprehend his situation (see Shtukaturov, cited above, § 108). In the present case, domestic law attached a certain weight to the applicant’s wishes and it appears that he was well aware of his situation. The Court notes that, at least from 2004, the applicant explicitly expressed his desire to leave the Pastra social care home, both to psychiatrists and through his applications to the authorities to have his legal capacity restored and to be released from guardianship (see paragraphs 37-41 above).", "131. These factors set the present case apart from H.M. v. Switzerland (cited above), in which the Court found that there had been no deprivation of liberty as the applicant had been placed in a nursing home purely in her own interests and, after her arrival there, had agreed to stay. In that connection the Government have not shown that in the present case, on arrival at the Pastra social care home or at any later date, the applicant agreed to stay there. That being so, the Court is not convinced that the applicant consented to the placement or accepted it tacitly at a later stage and throughout his stay.", "132. Having regard to the particular circumstances of the present case, especially the involvement of the authorities in the decision to place the applicant in the home and its implementation, the rules on leave of absence, the duration of the placement and the applicant’s lack of consent, the Court concludes that the situation under examination amounts to a deprivation of liberty within the meaning of Article 5 § 1 of the Convention. Accordingly, that provision is applicable.", "C. Whether the applicant’s placement in the Pastra social care home was compatible with Article 5 § 1", "1. The parties’ submissions", "(a) The applicant", "133. The applicant submitted that, since he had not consented to his placement in the Pastra social care home and had not signed the agreement drawn up between his guardian and the home, the agreement was in breach of the Persons and Family Act. He added that he had not been informed of the agreement’s existence at the time of his placement and that he had remained unaware of it for a long time afterwards. Nor had he had any opportunity to challenge this step taken by his guardian. Although the guardian had been required by Article 126 of the FC to report on her activities to the guardianship authority (the mayor), the latter was not empowered to take any action against her. Furthermore, no report had ever been drawn up in respect of the applicant, and his guardians had never been called to account for that shortcoming.", "134. The applicant further argued that his placement in a home for people with mental disorders did not fall within any of the grounds on which deprivation of liberty could be justified for the purposes of Article 5. The measure in question had not been justified by the need to ensure public safety or by the inability of the person concerned to cope outside the institution. In support of that contention, the applicant argued that the Director of the home had deemed him capable of integrating into the community and that attempts had been made to bring him closer to his family, albeit to no avail. Accordingly, the authorities had based their decision to place him in the home on the simple fact that his family were not prepared to take care of him and he needed social assistance. They had not examined whether the necessary assistance could be provided through alternative measures that were less restrictive of his personal liberty. Such measures were, moreover, quite conceivable since Bulgarian legislation made provision for a wide range of social services, such as personal assistance, social rehabilitation centres and special allowances and pensions. The authorities had thus failed to strike a fair balance between the applicant’s social needs and his right to liberty. It would be arbitrary, and contrary to the purpose of Article 5, for detention to be based on purely social considerations.", "135. Should the Court take the view that the placement fell within the scope of Article 5 § 1 (e), by which persons of unsound mind could be deprived of their liberty, the applicant submitted that the national authorities had not satisfied the requirements of that provision. In the absence of a recent psychiatric assessment, it was clear that his placement in the home had not pursued the aim of providing him with medical treatment and had been based solely on medical documents produced in the context of the proceedings for his legal incapacitation. The documents had been issued approximately a year and a half beforehand and had not strictly concerned his placement in an institution for people with mental disorders. Relying on Varbanov v. Bulgaria (no. 31365/96, § 47, ECHR 2000-X), the applicant stated that he had been placed in the Pastra social care home without having undergone any assessment of his mental health at that time.", "(b) The Government", "136. The Government submitted that the applicant’s placement in the home complied with domestic law as the guardian had signed an agreement whereby the applicant was to receive social services in his own interests. She had therefore acted in accordance with her responsibilities and had discharged her duty to protect the person under partial guardianship.", "137. Bearing in mind that the sole purpose of the placement had been to provide the applicant with social services under the Social Assistance Act and not to administer compulsory medical treatment, the Government submitted that this measure was not governed by Article 5 § 1 (e) of the Convention. In that connection, the authorities had taken into account his financial and family situation, that is to say, his lack of resources and the absence of close relatives able to assist him on a day-to-day basis.", "138. The Government noted at the same time that the applicant could in any event be regarded as a “person of unsound mind” within the meaning of Article 5 § 1 (e). The medical assessment carried out during the proceedings for his legal incapacitation in 2000 showed clearly that he was suffering from mental disorders and that it was therefore legitimate for the authorities to place him in an institution for people with similar problems. Lastly, relying on the Ashingdane judgment (cited above, § 44), the Government submitted that there was an adequate link between the reason given for the placement, namely the applicant’s state of health, and the institution in which he had been placed. Accordingly, they contended that the measure in issue had not been in breach of Article 5 § 1 (e).", "(c) The third party", "139. On the basis of the study referred to in paragraphs 112 to 114 above, Interights submitted that in central and east European countries, the placement of mentally disordered persons in a social care home was viewed solely in terms of social protection and was governed by contractual law. Since such placements were not regarded as a form of deprivation of liberty under domestic law, the procedural safeguards available in relation to involuntary psychiatric confinement were not applicable.", "140. Interights contended that situations of this nature were comparable to that examined in H.L. v. the United Kingdom (cited above), in which criticism had been levelled at the system prior to 2007 in the United Kingdom, whereby the common-law doctrine of necessity had permitted the “informal” detention of compliant incapacitated persons with mental disorders. The Court had held that the lack of any fixed procedural rules on the admission and detention of such persons was striking. In its view, the contrast between this dearth of regulation and the extensive network of safeguards applicable to formal psychiatric committals covered by mental-health legislation was significant. In the absence of a formalised admission procedure, indicating who could propose admission, for what reasons and on what basis, and given the lack of indication as to the length of the detention or the nature of treatment or care, the hospital’s health-care professionals had assumed full control of the liberty and treatment of a vulnerable incapacitated person solely on the basis of their own clinical assessments completed as and when they saw fit. While not doubting that those professionals had acted in good faith and in the applicant’s best interests, the Court had observed that the very purpose of procedural safeguards was to protect individuals against any misjudgments and professional lapses (ibid., §§ 120-21).", "141. Interights urged the Court to remain consistent with that approach and to find that in the present case the informal nature of admission to and continued detention in a social care home was at odds with the guarantees against arbitrariness under Article 5. The courts had not been involved at any stage of the proceedings and no other independent body had been assigned the task of monitoring the institutions in question. The lack of regulation coupled with the vulnerability of mentally disordered persons facilitated abuses of fundamental rights in a context of extremely limited supervision.", "142. The third party further submitted that, in most cases of this kind, placements were automatic as there were few possibilities of alternative social assistance. It contended that the authorities should be under a practical obligation to provide for appropriate measures that were less restrictive of personal liberty but were nonetheless capable of ensuring medical care and social services for mentally disordered persons. This would be a means of applying the principle that the rights guaranteed by the Convention should not be theoretical or illusory but practical and effective.", "2. The Court’s assessment", "(a) General principles", "143. The Court reiterates that in order to comply with Article 5 § 1, the detention in issue must first of all be “lawful”, including the observance of a procedure prescribed by law; in this respect the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. It requires in addition, however, that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness (see Herczegfalvy v. Austria, 24 September 1992, § 63, Series A no. 244). Furthermore, the detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is in conformity with national law; it must also be necessary in the circumstances (see Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000-III).", "144. In addition, sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds of deprivation of liberty; such a measure will not be lawful unless it falls within one of those grounds (ibid., § 49; see also, in particular, Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008, and Jendrowiak v. Germany, no. 30060/04, § 31, 14 April 2011).", "145. As regards the deprivation of liberty of mentally disordered persons, an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33; Shtukaturov, cited above, § 114; and Varbanov, cited above, § 45).", "146. As to the second of the above conditions, the detention of a mentally disordered person may be necessary not only where the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him, for example, causing harm to himself or other persons (see Hutchison Reid v. the United Kingdom, no. 50272/99, § 52, ECHR 2003 ‑ IV).", "147. The Court further reiterates that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the “detention” of a person as a mental-health patient will be “lawful” for the purposes of Article 5 § 1 (e) only if effected in a hospital, clinic or other appropriate institution authorised for that purpose (see Ashingdane, cited above, § 44, and Pankiewicz v. Poland, no. 34151/04, §§ 42-45, 12 February 2008). However, subject to the foregoing, Article 5 § 1 (e) is not in principle concerned with suitable treatment or conditions (see Ashingdane, cited above, § 44, and Hutchison Reid, cited above, § 49).", "(b) Application of these principles in the present case", "148. In examining whether the applicant’s placement in the Pastra social care home was lawful for the purposes of Article 5 § 1, the Court must ascertain whether the measure in question complied with domestic law, whether it fell within the scope of one of the exceptions provided for in sub-paragraphs (a) to (f) of Article 5 § 1 to the rule of personal liberty, and, lastly, whether it was justified on the basis of one of those exceptions.", "149. On the basis of the relevant domestic instruments (see paragraphs 57-59 above), the Court notes that Bulgarian law envisages placement in a social care institution as a protective measure taken at the request of the person concerned and not a coercive one ordered on one of the grounds listed in sub-paragraphs (a) to (f) of Article 5 § 1. However, in the particular circumstances of the instant case, the measure in question entailed significant restrictions on personal freedom giving rise to a deprivation of liberty with no regard for the applicant’s will or wishes (see paragraphs 121-32 above).", "150. As to whether a procedure prescribed by law was followed, the Court notes firstly that under domestic law the guardian of a person partially lacking legal capacity is not empowered to take legal steps on that person’s behalf. Any contracts drawn up in such cases are valid only when signed together by the guardian and the person under partial guardianship (see paragraph 42 above). The Court therefore concludes that the decision by the applicant’s guardian R.P. to place him in a social care home for people with mental disorders without having obtained his prior consent was invalid under Bulgarian law. This conclusion is in itself sufficient for the Court to establish that the applicant’s deprivation of liberty was contrary to Article 5.", "151. In any event, the Court considers that that measure was not lawful within the meaning of Article 5 § 1 of the Convention since it was not justified on the basis of any of sub-paragraphs (a) to (f).", "152. The applicant accepted that the authorities had acted mainly on the basis of the arrangements governing social assistance (see paragraph 134 above). However, he argued that the restrictions imposed amounted to a deprivation of liberty which had not been warranted by any of the exceptions provided for in sub-paragraphs (a) to (f) of Article 5 § 1 to the rule of personal liberty. The Government contended that the applicant’s placement in the home had been intended solely to protect his interest in receiving social care (see paragraphs 136-37 above). However, they stated that should the Court decide that Article 5 § 1 was applicable, the measure in question should be held to comply with sub-paragraph (e) in view of the applicant’s mental disorder (see paragraph 138 above).", "153. The Court notes that the applicant was eligible for social assistance as he had no accommodation and was unable to work as a result of his illness. It takes the view that, in certain circumstances, the welfare of a person with mental disorders might be a further factor to take into account, in addition to medical evidence, in assessing whether it is necessary to place the person in an institution. However, the objective need for accommodation and social assistance must not automatically lead to the imposition of measures involving deprivation of liberty. The Court considers that any protective measure should reflect as far as possible the wishes of persons capable of expressing their will. Failure to seek their opinion could give rise to situations of abuse and hamper the exercise of the rights of vulnerable persons. Therefore, any measure taken without prior consultation of the interested person will as a rule require careful scrutiny.", "154. The Court is prepared to accept that the applicant’s placement in the home was the direct consequence of the state of his mental health, the declaration of his partial incapacity and his placement under partial guardianship. Some six days after being appointed as the applicant’s guardian, Ms R.P., without knowing him or meeting him, decided on the strength of the file to ask social services to place him in a home for people with mental disorders. Social services, for their part, likewise referred to the applicant’s mental health in finding that the request should be granted. It seems clear to the Court that if the applicant had not been deprived of legal capacity on account of his mental disorder, he would not have been deprived of his liberty. Therefore, the present case should be examined under sub-paragraph (e) of Article 5 § 1.", "155. It remains to be determined whether the applicant’s placement in the home satisfied the requirements laid down in the Court’s case-law concerning the detention of mentally disordered persons (see the principles outlined in paragraph 145 above). In this connection, the Court reiterates that in deciding whether an individual should be detained as a “person of unsound mind”, the national authorities are to be recognised as having a certain discretion since it is in the first place for them to evaluate the evidence adduced before them in a particular case; the Court’s task is to review under the Convention the decisions of those authorities (see Winterwerp, cited above, § 40, and Luberti v. Italy, 23 February 1984, § 27, Series A no. 75).", "156. In the instant case it is true that the expert medical report produced in the course of the proceedings for the applicant’s legal incapacitation referred to the disorders from which he was suffering. However, the relevant examination took place before November 2000, whereas the applicant was placed in the Pastra social care home on 10 December 2002 (see paragraphs 10 and 14 above). More than two years thus elapsed between the expert psychiatric assessment relied on by the authorities and the applicant’s placement in the home, during which time his guardian did not check whether there had been any change in his condition and did not meet or consult him. Unlike the Government (see paragraph 138 above), the Court considers that this period is excessive and that a medical opinion issued in 2000 cannot be regarded as a reliable reflection of the state of the applicant’s mental health at the time of his placement. It should also be noted that the national authorities were not under any legal obligation to order a psychiatric report at the time of the placement. The Government explained in that connection that the applicable provisions were those of the Social Assistance Act and not those of the Health Act (see paragraphs 57-60 and 137 above). Nevertheless, in the Court’s view, the lack of a recent medical assessment would be sufficient to conclude that the applicant’s placement in the home was not lawful for the purposes of Article 5 § 1 (e).", "157. As a subsidiary consideration, the Court observes that the other requirements of Article 5 § 1 (e) were not satisfied in the present case either. As regards the need to justify the placement by the severity of the disorder, it notes that the purpose of the 2000 medical report was not to examine whether the applicant’s state of health required his placement in a home for people with mental disorders, but solely to determine the issue of his legal protection. While it is true that Article 5 § 1 (e) authorises the confinement of a person suffering from a mental disorder even where no medical treatment is necessarily envisaged (see Hutchison Reid, cited above, § 52), such a measure must be properly justified by the seriousness of the person’s condition in the interests of ensuring his or her own protection or that of others. In the present case, however, it has not been established that the applicant posed a danger to himself or to others, for example because of his psychiatric condition; the simple assertion by certain witnesses that he became aggressive when he drank (see paragraph 10 above) cannot suffice for this purpose. Nor have the authorities reported any acts of violence on the applicant’s part during his time in the Pastra social care home.", "158. The Court also notes deficiencies in the assessment of whether the disorders warranting the applicant’s confinement still persisted. Although he was under the supervision of a psychiatrist (see paragraph 31 above), the aim of such supervision was not to provide an assessment at regular intervals of whether he still needed to be kept in the Pastra social care home for the purposes of Article 5 § 1 (e). Indeed, no provision was made for such an assessment under the relevant legislation.", "159. Having regard to the foregoing, the Court observes that the applicant’s placement in the home was not ordered “in accordance with a procedure prescribed by law” and that his deprivation of liberty was not justified by sub-paragraph (e) of Article 5 § 1. Furthermore, the Government have not indicated any of the other grounds listed in sub-paragraphs (a) to (f) which might have justified the deprivation of liberty in issue in the present case.", "160. There has therefore been a violation of Article 5 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION", "161. The applicant complained that he had been unable to have the lawfulness of his placement in the Pastra social care home reviewed by a court.", "He relied on Article 5 § 4 of the Convention, which provides:", "“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”", "A. The parties’ submissions", "1. The applicant", "162. The applicant submitted that domestic law did not provide for any specific remedies in respect of his situation, such as a periodic judicial review of the lawfulness of his placement in a home for people with mental disorders. He added that, since he was deemed incapable of taking legal action on his own, domestic law did not afford him the possibility of applying to a court for permission to leave the Pastra social care home. He stated that he had likewise been unable to seek to have the placement agreement terminated, in view of the conflict of interests with his guardian, who at the same time was the Director of the home.", "163. The applicant further noted that he had not been allowed to apply to the courts to initiate the procedure provided for in Article 277 of the CCP (see paragraph 51 above) and that, moreover, such action would not have led to a review of the lawfulness of his deprivation of liberty but solely to a review of the conditions justifying partial guardianship in his case.", "164. He further submitted that the procedure provided for in Articles 113 and 115 of the FC (see paragraphs 49-50 above) in theory afforded his close relatives the right to ask the mayor to replace the guardian or to compel the mayor to terminate the placement agreement. However, this had been an indirect remedy not accessible to him, since his half-sister and his father’s second wife had not been willing to initiate such a procedure.", "2. The Government", "165. The Government submitted that, since the purpose of the applicant’s placement in the home had been to provide social services, he could at any time have asked for the placement agreement to be terminated without the courts needing to be involved. In their submission, in so far as the applicant alleged a conflict of interests with his guardian, he could have relied on Article 123 § 1 of the FC (see paragraph 50 above) and requested the guardianship authority to appoint an ad hoc representative, who could then have consented to a change of permanent residence.", "166. The Government further contended that the applicant’s close relatives had not availed themselves of the possibility open to some of them under Articles 113 and 115 of the FC of requesting the guardianship authority to replace his guardian or of challenging steps taken by the latter. They added that in the event of a refusal, his relatives could have appealed to a court, which would have considered the merits of the case and, if appropriate, appointed a new guardian, who could then have terminated the placement agreement. This, in the Government’s submission, would have enabled them to challenge in substance the agreement signed between Ms R.P. and the Pastra social care home.", "167. Lastly, the Government submitted that an action for restoration of legal capacity (under Article 277 of the CCP – see paragraph 51 above) constituted a remedy for the purposes of Article 5 § 4 since, if a sufficient improvement in the applicant’s health had been observed and he had been released from guardianship, he would have been free to leave the home.", "B. The Court’s assessment", "1. General principles", "168. The Court reiterates that Article 5 § 4 entitles detained persons to institute proceedings for a review of compliance with the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty. The notion of “lawfulness” under paragraph 4 of Article 5 has the same meaning as in paragraph 1, so that a detained person is entitled to a review of the “lawfulness” of his detention in the light not only of the requirements of domestic law but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the “lawful” detention of a person according to Article 5 § 1 (see E. v. Norway, 29 August 1990, § 50, Series A no. 181-A). The reviewing “court” must not have merely advisory functions but must have the competence to “decide” the “lawfulness” of the detention and to order release if the detention is unlawful (see Ireland v. the United Kingdom, 18 January 1978, § 200, Series A no. 25; Weeks v. the United Kingdom, 2 March 1987, § 61, Series A no. 114; Chahal v. the United Kingdom, 15 November 1996, § 130, Reports of Judgments and Decisions 1996 ‑ V; and A. and Others v. the United Kingdom [GC], no. 3455/05, § 202, ECHR 2009).", "169. The forms of judicial review satisfying the requirements of Article 5 § 4 may vary from one domain to another, and will depend on the type of deprivation of liberty in issue. It is not the Court’s task to inquire into what would be the most appropriate system in the sphere under examination (see Shtukaturov, cited above, § 123).", "170. Nevertheless, Article 5 § 4 guarantees a remedy that must be accessible to the person concerned and must afford the possibility of reviewing compliance with the conditions to be satisfied if the detention of a person of unsound mind is to be regarded as “lawful” for the purposes of Article 5 § 1 (e) (see Ashingdane, cited above, § 52). The Convention requirement for an act of deprivation of liberty to be amenable to independent judicial scrutiny is of fundamental importance in the context of the underlying purpose of Article 5 of the Convention to provide safeguards against arbitrariness. What is at stake is both the protection of the physical liberty of individuals and their personal security (see Varbanov, cited above, § 58). In the case of detention on the ground of mental illness, special procedural safeguards may be called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves (see, among other authorities, Winterwerp, cited above, § 60).", "171. Among the principles emerging from the Court’s case-law under Article 5 § 4 concerning “persons of unsound mind” are the following:", "(a) a person detained for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings “at reasonable intervals” before a court to put in issue the “lawfulness” – within the meaning of the Convention – of his detention;", "(b) Article 5 § 4 requires the procedure followed to have a judicial character and to afford the individual concerned guarantees appropriate to the kind of deprivation of liberty in question; in order to determine whether proceedings provide adequate guarantees, regard must be had to the particular nature of the circumstances in which they take place;", "(c) the judicial proceedings referred to in Article 5 § 4 need not always be attended by the same guarantees as those required under Article 6 § 1 for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation (see Megyeri v. Germany, 12 May 1992, § 22, Series A no. 237-A).", "2. Application of these principles in the present case", "172. The Court observes that the Government have not indicated any domestic remedy capable of affording the applicant the direct opportunity to challenge the lawfulness of his placement in the Pastra social care home and the continued implementation of that measure. It also notes that the Bulgarian courts were not involved at any time or in any way in the placement and that the domestic legislation does not provide for automatic periodic judicial review of placement in a home for people with mental disorders. Furthermore, since the applicant’s placement in the home is not recognised as a deprivation of liberty in Bulgarian law (see paragraph 58 above), there is no provision for any domestic legal remedies by which to challenge its lawfulness in terms of a deprivation of liberty. In addition, the Court notes that, according to the domestic courts’ practice, the validity of the placement agreement could have been challenged on the ground of lack of consent only on the guardian’s initiative (see paragraph 54 above).", "173. In so far as the Government referred to the procedure for restoration of legal capacity under Article 277 of the CCP (see paragraph 167 above), the Court notes that the purpose of this procedure would not have been to examine the lawfulness of the applicant’s placement per se, but solely to review his legal status (see paragraphs 233-46 below). The Government also referred to the procedures for reviewing steps taken by the guardian (see paragraphs 165-66 above). The Court considers it necessary to determine whether such remedies could have given rise to a judicial review of the lawfulness of the placement as required by Article 5 § 4.", "174. In this connection, it notes that the 1985 FC entitled close relatives of a person under partial guardianship to challenge decisions by the guardianship authority, which in turn was required to review steps taken by the guardian – including the placement agreement – and to replace the latter in the event of failure to discharge his or her duties (see paragraphs 48-50 above). However, the Court notes that those remedies were not directly accessible to the applicant. Moreover, none of the persons theoretically entitled to make use of them displayed any intention of acting in Mr Stanev’s interests, and he himself was unable to act on his own initiative without their approval.", "175. It is uncertain whether the applicant could have requested the mayor to demand explanations from the guardian or to suspend the implementation of the placement agreement on the ground that it was invalid. In any event, it appears that since he had been partially deprived of legal capacity, the law did not entitle him to apply of his own motion to the courts to challenge steps taken by the mayor (see paragraph 49 above); this was not disputed by the Government.", "176. The same conclusion applies as regards the possibility for the applicant to ask the mayor to replace his guardian temporarily with an ad hoc representative on the basis of an alleged conflict of interests and then to apply for the termination of the placement agreement. The Court observes in this connection that the mayor has discretion to determine whether there is a conflict of interests (see paragraph 50 above). Lastly, it does not appear that the applicant could have applied of his own motion to the courts for a review on the merits in the event of the mayor’s refusal to take such action.", "177. The Court therefore concludes that the remedies referred to by the Government were either inaccessible to the applicant or were not judicial in nature. Furthermore, none of them can give rise to a direct review of the lawfulness of the applicant’s placement in the Pastra social care home in terms of domestic law and the Convention.", "178. Having regard to those considerations, the Court dismisses the Government’s objection of failure to exhaust domestic remedies (see paragraphs 97-99 above) and finds that there has been a violation of Article 5 § 4 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION", "179. The applicant submitted that he had not been entitled to compensation for the alleged violations of his rights under Article 5 §§ 1 and 4 of the Convention.", "He relied on Article 5 § 5, which provides:", "“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”", "A. The parties’ submissions", "180. The applicant submitted that the circumstances in which unlawful detention could give rise to compensation were exhaustively listed in the State Responsibility for Damage Act 1988 (see paragraphs 62-67 above) and that his own situation was not covered by any of them. He further complained that there were no legal remedies by which compensation could be claimed for a violation of Article 5 § 4.", "181. The Government maintained that the compensation procedure under the 1988 Act could have been initiated if the applicant’s placement in the home had been found to have no legal basis. Since the placement had been found to be consistent with domestic law and with his own interests, he had not been able to initiate the procedure in question.", "B. The Court’s assessment", "182. The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (see Wassink v. the Netherlands, 27 September 1990, § 38, Series A no. 185-A, and Houtman and Meeus v. Belgium, no. 22945/07, § 43, 17 March 2009). The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Convention institutions. In this connection, the effective enjoyment of the right to compensation guaranteed by Article 5 § 5 must be ensured with a sufficient degree of certainty (see Ciulla v. Italy, 22 February 1989, § 44, Series A no. 148; Sakık and Others v. Turkey, 26 November 1997, § 60, Reports 1997-VII; and N.C. v. Italy [GC], no. 24952/94, § 49, ECHR 2002-X).", "183. Turning to the present case, the Court observes that, regard being had to its finding of a violation of paragraphs 1 and 4 of Article 5, paragraph 5 is applicable. It must therefore ascertain whether, prior to the present judgment, the applicant had an enforceable right at domestic level to compensation for damage, or whether he will have such a right following the adoption of this judgment.", "184. The Court reiterates in this connection that in order to find a violation of Article 5 § 5, it has to establish that the finding of a violation of one of the other paragraphs of Article 5 could not give rise, either before or after the Court’s judgment, to an enforceable claim for compensation before the domestic courts (see Brogan and Others v. the United Kingdom, 29 November 1988, §§ 66-67, Series A no. 145-B).", "185. Having regard to the case-law cited above, the Court considers that it must first be determined whether the violation of Article 5 §§ 1 and 4 found in the present case could have given rise, before the delivery of this judgment, to an entitlement to compensation before the domestic courts.", "186. As regards the violation of Article 5 § 1, the Court observes that section 2(1) of the State Responsibility for Damage Act 1988 provides for compensation for damage resulting from a judicial decision ordering certain types of detention where the decision has been set aside as having no legal basis (see paragraph 62 above). However, that was not the case in this instance. It appears from the case file that the Bulgarian judicial authorities have not at any stage found the measure to have been unlawful or otherwise in breach of Article 5 of the Convention. Moreover, the Government’s line of argument has been that the applicant’s placement in the home was in accordance with domestic law. The Court therefore concludes that the applicant was unable to claim any compensation under the above-mentioned provision in the absence of an acknowledgment by the national authorities that the placement was unlawful.", "187. As to the possibility under section 1 of the same Act of claiming compensation for damage resulting from unlawful acts by the authorities (see paragraph 63 above), the Court observes that the Government have not produced any domestic decisions indicating that that provision is applicable to cases involving the placement of people with mental disorders in social care homes on the basis of civil-law agreements.", "188. Furthermore, since no judicial remedy by which to review the lawfulness of the placement was available under Bulgarian law, the applicant could not have invoked State liability as a basis for receiving compensation for the violation of Article 5 § 4.", "189. The question then arises whether the judgment in the present case, in which violations of paragraphs 1 and 4 of Article 5 have been found, will entitle the applicant to claim compensation under Bulgarian law. The Court observes that it does not appear from the relevant legislation that any such remedy exists; nor, indeed, have the Government submitted any arguments to prove the contrary.", "190. It has therefore not been shown the applicant was able to avail himself prior to the Court’s judgment in the present case, or will be able to do so after its delivery, of a right to compensation for the violation of Article 5 §§ 1 and 4.", "191. There has therefore been a violation of Article 5 § 5.", "IV. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 13", "192. The applicant complained that the living conditions in the Pastra social care home were poor and that no effective remedy was available under Bulgarian law in respect of that complaint. He relied on Article 3 of the Convention taken alone and in conjunction with Article 13. These provisions are worded as follows:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 13", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. Preliminary objection of failure to exhaust domestic remedies", "193. In their memorial before the Grand Chamber, the Government for the first time raised an objection of failure to exhaust domestic remedies in respect of the complaint under Article 3 of the Convention. They submitted that the applicant could have obtained compensation for the living conditions in the home by bringing an action under the State Responsibility for Damage Act 1988.", "194. The Court reiterates that, in accordance with Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see N.C. v. Italy, cited above, § 44). Where an objection of failure to exhaust domestic remedies is raised out of time for the purposes of Rule 55, an estoppel arises and the objection must accordingly be dismissed (see Velikova v. Bulgaria, no. 41488/98, § 57, ECHR 2000-VI, and Tanrıbilir v. Turkey, no. 21422/93, § 59, 16 November 2000).", "195. In the present case the Government have not cited any circumstances justifying their failure to raise the objection in question at the time of the Chamber’s examination of the admissibility of the case.", "196. That being so, the Court observes that the Government are estopped from raising this objection, which must accordingly be dismissed.", "B. Merits of the complaint under Article 3 of the Convention", "1. The parties’ submissions", "197. The applicant submitted that the poor living conditions in the Pastra social care home, in particular the inadequate food, the deplorable sanitary conditions, the lack of heating, the enforced medical treatment, the overcrowded bedrooms and the absence of therapeutic and cultural activities, amounted to treatment prohibited by Article 3.", "198. He observed that the Government had already acknowledged in 2004 that such living conditions did not comply with the relevant European standards and had undertaken to make improvements (see paragraph 82 above). However, the conditions had remained unchanged, at least until late 2009.", "199. In their observations before the Chamber, the Government acknowledged the deficiencies in the living conditions at the home. They explained that the inadequate financial resources set aside for institutions of this kind formed the main obstacle to ensuring the requisite minimum standard of living. They also stated that, following an inspection by the Social Assistance Agency, the authorities had resolved to close the Pastra social care home and to take steps to improve living conditions for its residents. In the Government’s submission, since the living conditions were the same for all the home’s residents and there had been no intention to inflict ill-treatment, the applicant had not been subjected to degrading treatment.", "200. Before the Grand Chamber the Government stated that renovation work had been carried out in late 2009 in the part of the home where the applicant lived (see paragraph 24 above).", "2. The Court’s assessment", "(a) General principles", "201. Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 90, ECHR 2000-XI, and Poltoratskiy v. Ukraine, no. 38812/97, § 130, ECHR 2003-V).", "202. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see Kudła, cited above, § 91, and Poltoratskiy, cited above, § 131).", "203. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV). Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance or driving them to act against their will or conscience (see Jalloh v. Germany [GC], no. 54810/00, § 68, ECHR 2006-IX). In this connection, the question whether such treatment was intended to humiliate or debase the victim is a factor to be taken into account, although the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 (see Peers v. Greece, no. 28524/95, §§ 67, 68 and 74, ECHR 2001-III, and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI).", "204. The suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. Yet it cannot be said that deprivation of liberty in itself raises an issue under Article 3 of the Convention. Nevertheless, under that Article the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (see Kudła, cited above, §§ 92-94).", "205. When assessing the conditions of a deprivation of liberty under Article 3 of the Convention, account has to be taken of their cumulative effects and the duration of the measure in question (see Kalashnikov, cited above, §§ 95 and 102; Kehayov v. Bulgaria, no. 41035/98, § 64, 18 January 2005; and Iovchev v. Bulgaria, no. 41211/98, § 127, 2 February 2006). In this connection an important factor to take into account, besides the material conditions, is the detention regime. In assessing whether a restrictive regime may amount to treatment contrary to Article 3 in a given case, regard must be had to the particular conditions, the stringency of the regime, its duration, the objective pursued and its effects on the person concerned (see Kehayov, cited above, § 65).", "(b) Application of these principles in the present case", "206. In the present case the Court has found that the applicant’s placement in the Pastra social care home – a situation for which the domestic authorities must be held responsible – amounts to a deprivation of liberty within the meaning of Article 5 of the Convention (see paragraph 132 above). It follows that Article 3 is applicable to the applicant’s situation, seeing that it prohibits the inhuman and degrading treatment of anyone in the care of the authorities. The Court would emphasise that the prohibition of ill-treatment in Article 3 applies equally to all forms of deprivation of liberty, and in particular makes no distinction according to the purpose of the measure in issue; it is immaterial whether the measure entails detention ordered in the context of criminal proceedings or admission to an institution with the aim of protecting the life or health of the person concerned.", "207. The Court notes at the outset that, according to the Government, the building in which the applicant lives was renovated in late 2009, resulting in an improvement in his living conditions (see paragraph 200 above); the applicant did not dispute this. The Court therefore considers that the applicant’s complaint should be taken to refer to the period between 2002 and 2009. The Government have not denied that during that period the applicant’s living conditions corresponded to his description, and have also acknowledged that, for economic reasons, there were certain deficiencies in that regard (see paragraphs 198-99 above).", "208. The Court observes that although the applicant shared a room measuring 16 sq. m with four other residents, he enjoyed considerable freedom of movement both inside and outside the home, a fact likely to lessen the adverse effects of a limited sleeping area (see Valašinas v. Lithuania, no. 44558/98, § 103, ECHR 2001-VIII).", "209. Nevertheless, other aspects of the applicant’s physical living conditions are a considerable cause for concern. In particular, it appears that the food was insufficient and of poor quality. The building was inadequately heated and in winter the applicant had to sleep in his coat. He was able to have a shower once a week in an unhygienic and dilapidated bathroom. The toilets were in an execrable state and access to them was dangerous, according to the findings by the CPT (see paragraphs 21, 22, 23, 78 and 79 above). In addition, the home did not return clothes to the same people after they were washed (see paragraph 21 above), which was likely to arouse a feeling of inferiority in the residents.", "210. The Court cannot overlook the fact that the applicant was exposed to all the above-mentioned conditions for a considerable period of approximately seven years. Nor can it ignore the findings of the CPT, which, after visiting the home, concluded that the living conditions there at the relevant time could be said to amount to inhuman and degrading treatment. Despite being aware of those findings, during the period from 2002 to 2009 the Government did not act on their undertaking to close down the institution (see paragraph 82 above). The Court considers that the lack of financial resources cited by the Government is not a relevant argument to justify keeping the applicant in the living conditions described (see Poltoratskiy, cited above, § 148).", "211. It would nevertheless emphasise that there is no suggestion that the national authorities deliberately intended to inflict degrading treatment. However, as noted above (see paragraph 203), the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3.", "212. In conclusion, while noting the improvements apparently made to the Pastra social care home since late 2009, the Court considers that, taken as a whole, the living conditions to which the applicant was exposed during a period of approximately seven years amounted to degrading treatment.", "213. There has therefore been a violation of Article 3 of the Convention.", "C. Merits of the complaint under Article 13 taken in conjunction with Article 3", "1. The parties’ submissions", "214. The applicant submitted that no domestic remedies, including the claim for compensation envisaged in the State Responsibility for Damage Act 1988, had been accessible to him without his guardian’s consent. He pointed out in that connection that he had not had a guardian for a period of more than two years, between the end of Ms R.P.’s designated term on 31 December 2002 (see paragraph 12 above) and the appointment of a new guardian on 2 February 2005 (see paragraph 17 above). Moreover, his new guardian was also the Director of the social care home. There would therefore have been a conflict of interests between the applicant and his guardian in the event of any dispute concerning the living conditions at the home, and the applicant could not have expected the guardian to support his allegations.", "215. In the Government’s submission, an action for restoration of legal capacity (see paragraphs 51-52 above) constituted a remedy by which the applicant could have secured a review of his status and, in the event of being released from partial guardianship, he could have left the social care home and ceased to endure the living conditions about which he complained.", "216. The Government added that the applicant could have complained directly about the living conditions at the Pastra social care home by bringing an action under section 1 of the State Responsibility for Damage Act 1988 (see paragraphs 62-67 above).", "2. The Court’s assessment", "217. The Court refers to its settled case-law to the effect that Article 13 guarantees the existence of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law (see McGlinchey and Others v. the United Kingdom, no. 50390/99, § 62, ECHR 2003 ‑ V).", "218. Where, as in the present case, the Court has found a breach of Article 3, compensation for the non-pecuniary damage flowing from the breach should in principle be part of the range of available remedies (ibid., § 63; and Iovchev, cited above, § 143).", "219. In the instant case the Court observes that section 1(1) of the State Responsibility for Damage Act 1988 has indeed been interpreted by the domestic courts as being applicable to damage suffered by prisoners as a result of poor detention conditions (see paragraphs 63-64 above). However, according to the Government’s submissions, the applicant’s placement in the Pastra social care home is not regarded as detention under domestic law (see paragraphs 108-11 above). Therefore, he would not have been entitled to compensation for the poor living conditions in the home. Moreover, there are no judicial precedents in which this provision has been found to apply to allegations of poor conditions in social care homes (see paragraph 65 above), and the Government have not adduced any arguments to prove the contrary. Having regard to those considerations, the Court concludes that the remedies in question were not effective within the meaning of Article 13.", "220. As to the Government’s reference to the procedure for restoration of legal capacity (see paragraph 215 above), the Court considers that, even assuming that as a result of that remedy the applicant had been able to have his legal capacity restored and to leave the home, he would not have been awarded any compensation for his treatment during his placement there. Accordingly, the remedy in question did not afford appropriate redress.", "221. There has therefore been a violation of Article 13 of the Convention taken in conjunction with Article 3.", "V. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "222. The applicant alleged that Bulgarian law had not afforded him the possibility of applying to a court for restoration of his legal capacity. He relied on Article 6 § 1 of the Convention, the relevant parts of which read:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "A. Preliminary remarks", "223. The Grand Chamber observes that the Government have maintained before it the objection they raised before the Chamber alleging failure to exhaust domestic remedies. The objection was based on Article 277 of the CCP, which, according to the Government, entitled the applicant to apply personally to the courts for restoration of his legal capacity.", "224. The Grand Chamber notes that in its admissibility decision of 29 June 2010 the Chamber observed that the applicant disputed the accessibility of the remedy which, according to the Government, would have enabled him to obtain a review of his legal status and that that argument underpinned his complaint under Article 6 § 1. The Chamber thus joined the Government’s objection to its examination of the merits of the complaint in question. The Grand Chamber sees no reason to depart from the Chamber’s conclusion.", "B. Merits", "1. The parties’ submissions", "225. The applicant maintained that he had been unable personally to institute proceedings for restoration of his legal capacity under Article 277 of the CCP and that this was borne out by the Supreme Court’s decision no. 5/79 (see paragraph 51 above). In support of that argument, he submitted that the Dupnitsa District Court had declined to examine his application for judicial review of the mayor’s refusal to bring such proceedings, on the ground that the guardian had not countersigned the form of authority (see paragraphs 39-40 above).", "226. In addition, although an action for restoration of legal capacity had not been accessible to him, the applicant had attempted to bring such an action through the public prosecutor’s office, the mayor and his guardian (the Director of the home). However, since no application to that end had been lodged with the courts, all his attempts had failed. Accordingly, the applicant had never had the opportunity to have his case heard by a court.", "227. The Government submitted that Article 277 of the CCP had offered the applicant direct access to a court at any time to have his legal status reviewed. They pointed out that, contrary to what the applicant alleged, the Supreme Court’s decision no. 5/79 had interpreted Article 277 of the CCP as meaning that persons partially deprived of legal capacity could apply directly to the courts to be released from guardianship. The only condition for making such an application was the production of evidence of an improvement in their condition. However, as was indicated by the medical assessment carried out at the public prosecutor’s request (see paragraph 37 above), which had concluded that the applicant’s condition still persisted and that he was incapable of looking after his own interests, it was clear that the applicant had not had any such evidence available. The Government thus concluded that the applicant had not attempted to apply to the court on his own because he had been unable to substantiate his application.", "228. The Government further observed that the courts regularly considered applications for restoration of legal capacity submitted, for example, by a guardian (see paragraph 52 above).", "2. The Court’s assessment", "(a) General principles", "229. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18). This “right to a court”, of which the right of access is an aspect, may be relied on by anyone who considers on arguable grounds that an interference with the exercise of his or her civil rights is unlawful and complains that no possibility was afforded to submit that claim to a court meeting the requirements of Article 6 § 1 (see, inter alia, Roche v. the United Kingdom [GC], no. 32555/96, § 117, ECHR 2005-X, and Salontaji-Drobnjak v. Serbia, no. 36500/05, § 132, 13 October 2009).", "230. The right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access “by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals” (see Ashingdane, cited above, § 57). In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (ibid.; see also, among many other authorities, Cordova v. Italy, no. 40877/98, § 54, ECHR 2003-I, and the recapitulation of the relevant principles in Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294-B).", "231. Furthermore, the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly true for the guarantees enshrined in Article 6, in view of the prominent place held in a democratic society by the right to a fair trial with all the guarantees under that Article (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 45, ECHR 2001-VIII).", "232. Lastly, the Court observes that in most of the cases before it involving “persons of unsound mind”, the domestic proceedings have concerned their detention and were thus examined under Article 5 of the Convention. However, it has consistently held that the “procedural” guarantees under Article 5 §§ 1 and 4 of the Convention are broadly similar to those under Article 6 § 1 (see, for instance, Winterwerp, cited above, § 60; Sanchez-Reisse v. Switzerland, 21 October 1986, §§ 51 and 55, Series A no. 107; Kampanis v. Greece, 13 July 1995, § 47, Series A no. 318-B; and Ilijkov v. Bulgaria, no. 33977/96, § 103, 26 July 2001). In the Shtukaturov case (cited above, § 66), in determining whether or not the incapacitation proceedings had been fair, the Court had regard, mutatis mutandis, to its case-law under Article 5 §§ 1 (e) and 4 of the Convention.", "(b) Application of these principles in the present case", "233. The Court observes at the outset that in the present case none of the parties disputed the applicability of Article 6 to proceedings for restoration of legal capacity. The applicant, who has been partially deprived of legal capacity, complained that Bulgarian law did not afford him direct access to a court to apply to have his capacity restored. The Court has had occasion to clarify that proceedings for restoration of legal capacity are directly decisive for the determination of “civil rights and obligations” (see Matter v. Slovakia, no. 31534/96, § 51, 5 July 1999). Article 6 § 1 of the Convention is therefore applicable in the instant case.", "234. It remains to be determined whether the applicant’s access to court was restricted and, if so, whether the restriction pursued a legitimate aim and was proportionate to it.", "235. The Court notes firstly that the parties differed as to whether a legally incapacitated person had locus standi to apply directly to the Bulgarian courts for restoration of legal capacity; the Government argued that this was the case, whereas the applicant maintained the contrary.", "236. The Court accepts the applicant’s argument that, in order to make an application to a Bulgarian court, a person under partial guardianship is required to seek the support of the persons referred to in Article 277 of the 1952 CCP (which has become Article 340 of the 2007 CCP). The list of persons entitled to apply to the courts under Bulgarian law does not explicitly include a person under partial guardianship (see paragraphs 45 and 51 above).", "237. With regard to the Supreme Court’s 1980 decision (see paragraph 51 above), the Court observes that, although the fourth sentence of paragraph 10 of the decision, read in isolation, might give the impression that a person under partial guardianship has direct access to a court, the Supreme Court explains further on that, where the guardian of a partially incapacitated person and the guardianship authority refuse to institute proceedings for restoration of legal capacity, the person concerned may request the public prosecutor to do so. In the Court’s view, the need to seek the intervention of the public prosecutor is scarcely reconcilable with direct access to court for persons under partial guardianship in so far as the decision to intervene is left to the prosecutor’s discretion. It follows that the Supreme Court’s 1980 decision cannot be said to have clearly affirmed the existence of such access in Bulgarian law.", "238. The Court further notes that the Government have not produced any court decisions showing that persons under partial guardianship have been able to apply of their own motion to a court to have the measure lifted; however, they have shown that at least one application for restoration of legal capacity has been successfully brought by the guardian of a fully incapacitated person (see paragraph 52 above).", "239. The Court thus considers it established that the applicant was unable to apply for restoration of his legal capacity other than through his guardian or one of the persons listed in Article 277 of the CCP.", "240. The Court would also emphasise that, as far as access to court is concerned, domestic law makes no distinction between those who are entirely deprived of legal capacity and those who, like the applicant, are only partially incapacitated. Moreover, domestic legislation does not provide for any possibility of automatic periodic review of whether the grounds for placing a person under guardianship remain valid. Lastly, in the applicant’s case the measure in question was not limited in time.", "241. Admittedly, the right of access to the courts is not absolute and requires by its very nature that the State should enjoy a certain margin of appreciation in regulating the sphere under examination (see Ashingdane, cited above, § 57). In addition, the Court acknowledges that restrictions on a person’s procedural rights, even where the person has been only partially deprived of legal capacity, may be justified for the person’s own protection, the protection of the interests of others and the proper administration of justice. However, the importance of exercising these rights will vary according to the purpose of the action which the person concerned intends to bring before the courts. In particular, the right to ask a court to review a declaration of incapacity is one of the most important rights for the person concerned since such a procedure, once initiated, will be decisive for the exercise of all the rights and freedoms affected by the declaration of incapacity, not least in relation to any restrictions that may be placed on the person’s liberty (see also Shtukaturov, cited above, § 71). The Court therefore considers that this right is one of the fundamental procedural rights for the protection of those who have been partially deprived of legal capacity. It follows that such persons should in principle enjoy direct access to the courts in this sphere.", "242. However, the State remains free to determine the procedure by which such direct access is to be realised. At the same time, the Court considers that it would not be incompatible with Article 6 for national legislation to provide for certain restrictions on access to court in this sphere, with the sole aim of ensuring that the courts are not overburdened with excessive and manifestly ill-founded applications. Nevertheless, it seems clear that this problem may be solved by other, less restrictive means than automatic denial of direct access, for example by limiting the frequency with which applications may be made or introducing a system for prior examination of their admissibility on the basis of the file.", "243. The Court further observes that eighteen of the twenty national legal systems studied in this context provide for direct access to the courts for any partially incapacitated persons wishing to have their status reviewed. In seventeen States such access is open even to those declared fully incapable (see paragraphs 88-90 above). This indicates that there is now a trend at European level towards granting legally incapacitated persons direct access to the courts to seek restoration of their capacity.", "244. The Court is also obliged to note the growing importance which international instruments for the protection of people with mental disorders are now attaching to granting them as much legal autonomy as possible. It refers in this connection to the United Nations Convention of 13 December 2006 on the Rights of Persons with Disabilities and to Recommendation No. R (99) 4 of the Committee of Ministers of the Council of Europe on principles concerning the legal protection of incapable adults, which recommend that adequate procedural safeguards be put in place to protect legally incapacitated persons to the greatest extent possible, to ensure periodic reviews of their status and to make appropriate remedies available (see paragraphs 72-73 above).", "245. In the light of the foregoing, in particular the trends emerging in national legislation and the relevant international instruments, the Court considers that Article 6 § 1 of the Convention must be interpreted as guaranteeing in principle that anyone who has been declared partially incapable, as is the applicant’s case, has direct access to a court to seek restoration of his or her legal capacity.", "246. In the instant case the Court has observed that direct access of this kind is not guaranteed with a sufficient degree of certainty by the relevant Bulgarian legislation. That finding is sufficient for it to conclude that there has been a violation of Article 6 § 1 of the Convention in respect of the applicant.", "247. The above conclusion dispenses the Court from examining whether the indirect legal remedies referred to by the Government provided the applicant with sufficient guarantees that his case would be brought before a court.", "248. The Court therefore dismisses the Government’s objection of failure to exhaust domestic remedies (see paragraph 223 above) and concludes that there has been a violation of Article 6 § 1 of the Convention.", "VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 13", "249. The applicant alleged that the restrictive guardianship regime, including his placement in the Pastra social care home and the physical living conditions there, had amounted to unjustified interference with his right to respect for his private life and home. He submitted that Bulgarian law had not afforded him a sufficient and accessible remedy in that respect. He relied on Article 8 of the Convention taken alone and in conjunction with Article 13.", "Article 8 provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "250. The applicant maintained in particular that the guardianship regime had not been geared to his individual case but had entailed restrictions automatically imposed on anyone who had been declared incapable by a judge. He added that the fact of having to live in the Pastra social care home had effectively barred him from taking part in community life and from developing relations with persons of his choosing. The authorities had not attempted to find alternative therapeutic solutions in the community or to take measures that were less restrictive of his personal liberty, with the result that he had developed “institutionalisation syndrome”, that is, the loss of social skills and individual personality traits.", "251. The Government contested those allegations.", "252. Having regard to its conclusions under Articles 3, 5, 6 and 13 of the Convention, the Court considers that no separate issue arises under Article 8 of the Convention taken alone and/or in conjunction with Article 13. It is therefore unnecessary to examine this complaint.", "VII. ARTICLES 46 AND 41 OF THE CONVENTION", "A. Article 46 of the Convention", "253. The relevant parts of Article 46 of the Convention read as follows:", "“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.", "2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”", "254. The Court reiterates that by Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects (see Menteş and Others v. Turkey (Article 50), 24 July 1998, § 24, Reports 1998-IV; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; and Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004-I). The Court further notes that it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order to discharge its obligation under Article 46 of the Convention (see Scozzari and Giunta, cited above; Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I; and Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005-IV).", "255. However, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V, and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 148, 17 September 2009).", "256. In the instant case the Court considers that it is necessary, in view of its finding of a violation of Article 5, to indicate individual measures for the execution of this judgment. It observes that it has found a violation of that Article on account of the failure to comply with the requirement that any deprivation of liberty must be “in accordance with a procedure prescribed by law” and the lack of justification for the applicant’s deprivation of liberty under sub-paragraph (e) or any of the other sub-paragraphs of Article 5 § 1. It has also noted deficiencies in the assessment of the presence and persistence of any disorders warranting placement in a social care home (see paragraphs 148-60 above).", "257. The Court considers that in order to redress the effects of the breach of the applicant’s rights, the authorities should ascertain whether he wishes to remain in the home in question. Nothing in this judgment should be seen as an obstacle to his continued placement in the Pastra social care home or any other home for people with mental disorders if it is established that he consents to the placement. However, should the applicant object to such placement, the authorities should re-examine his situation without delay in the light of the findings of this judgment.", "258. The Court notes that it has also found a violation of Article 6 § 1 on account of the lack of direct access to a court for a person who has been partially deprived of legal capacity with a view to seeking its restoration (see paragraphs 233-48 above). Having regard to that finding, the Court recommends that the respondent State envisage the necessary general measures to ensure the effective possibility of such access.", "B. Article 41 of the Convention", "259. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "1. Damage", "260. The applicant did not submit any claims in respect of pecuniary damage but sought 64,000 euros (EUR) for non-pecuniary damage.", "261. He asserted in particular that he had endured poor living conditions in the social care home and claimed a sum of EUR 14,000 on that account. In respect of his placement in the Pastra social care home, he stated that he had experienced feelings of anxiety, distress and frustration ever since that measure had begun to be implemented in December 2002. His enforced placement in the home had also had a significant impact on his life as he had been removed from his social environment and subjected to a very restrictive regime, making it harder for him to reintegrate into the community. He submitted that although there was no comparable case-law concerning unlawful detention in a social care home for people with mental disorders, regard should be had to the just satisfaction awarded by the Court in cases involving unlawful detention in psychiatric institutions. He referred, for example, to the judgments in Gajcsi v. Hungary (no. 34503/03, §§ 28-30, 3 October 2006) and Kayadjieva v. Bulgaria (no. 56272/00, § 57, 28 September 2006), while noting that he had been deprived of his liberty for a considerably longer period than the applicants in the above-mentioned cases. He submitted that a sum of EUR 30,000 would constitute an equitable award on that account. Lastly, he added that his lack of access to the courts to seek a review of his legal status had restricted the exercise of a number of freedoms in the sphere of his private life, causing additional non-pecuniary damage, for which an award of EUR 20,000 could provide redress.", "262. The Government submitted that the applicant’s claims were excessive and unfounded. They argued that if the Court were to make any award in respect of non-pecuniary damage, it should not exceed the amounts awarded in judgments against Bulgaria concerning compulsory psychiatric admission. The Government referred to the judgments in Kayadjieva (cited above, § 57), Varbanov (cited above, § 67), and Kepenerov v. Bulgaria (no. 39269/98, § 42, 31 July 2003).", "263. The Court observes that it has found violations of several provisions of the Convention in the present case, namely Articles 3, 5 (§§ 1, 4 and 5), 6 and 13. It considers that the applicant must have endured suffering as a result of his placement in the home, which began in December 2002 and is still ongoing, his inability to secure a judicial review of that measure and his lack of access to a court to apply for release from partial guardianship. This suffering undoubtedly aroused in him a feeling of helplessness and anxiety. The Court further considers that the applicant sustained non-pecuniary damage on account of the degrading living conditions he had to endure for more than seven years.", "264. Ruling on an equitable basis, as required by Article 41 of the Convention, the Court considers that the applicant should be awarded an aggregate sum of EUR 15,000 in respect of non-pecuniary damage.", "2. Costs and expenses", "265. The applicant did not submit any claims in respect of costs and expenses.", "3. Default interest", "266. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Background to the case", "5. The applicant was born on 21 November 2004 to parents who suffered from a mental disability. He was abandoned at birth and at his grandmother ’ s request he was placed in B. Orphanage at the age of three months. B. Social Welfare Centre was appointed as his guardian. Symptoms of growth delay were detected when he was one year old. According to a diagnosis given when he was two years old, his physical development had stalled and he had a speech disability. On 14 April 2008 a team of doctors from B. Hospital diagnosed that the applicant had been suffering from a moderate mental disability, the most severe ( најтешко ) form of physical disability (cerebral palsy), and a speech disability ( alalia ) since birth.", "6. On 8 November 2008 the applicant ’ s guardian placed him in B. Rehabilitation Institute, a State-run institution for people with hearing and speech disabilities. During his stay in the institute, the applicant was diagnosed as suffering from mental, physical and speech disabilities. He was discharged in June 2012 on the basis of findings made by the medical personnel in the institute which concluded that his continued stay and treatment there would not be justified.", "B. The applicant ’ s placement and treatment in the Rehabilitation Institute B.B.S.", "7. On 21 June 2012 the applicant ’ s guardian contacted the Rehabilitation Institute B.B.S. (“the RIBBS”), an open-type State-run institution for physically disabled people with no mental disabilities, asking it to accept the applicant. The competent ministry granted that request. In a reply received by the applicant ’ s guardian on 29 June 2012, the RIBBS stated, inter alia :", "“The expert panel ... decided unanimously that [the applicant] cannot be placed in our institution, for the following reasons:", "On the basis of [medical material], it was established that we cannot educate and rehabilitate [the applicant] because he is unable to speak; nor can we communicate with him or understand his needs, because we have no qualified staff to understand and work with him.", "Our primary activity is accommodating [and] providing care ... to people with severe physical disabilities [who are] mentally fit ...”", "8. On the same date (29 June 2012), the applicant ’ s guardian decided that he should be placed in the RIBBS. No appeal against that decision was submitted, notwithstanding the clear instruction on available legal remedies contained in the decision. Such an appeal would not have had suspensive effect, under section 181(3) of the Social Care Act. The guardian also requested that the applicant ’ s state of health be reclassified ( рекатегоризација ). However, the applicant was not transferred to B. Hospital for examination.", "9. By a letter of 12 July 2012, the RIBBS notified the applicant ’ s guardian that it had no qualified staff to care for the applicant. It further stated:", "“All members of staff hold [the applicant] by the hand all the time in order to prevent him from running away. Our institution is an open-type institution, and in accordance with internal rules, we can neither lock him in a room nor apply any other restrictive measure. If we don ’ t hold him by his hand, he runs away ... He could put himself in danger, because beyond the entrance door is a high-speed road ... We draw your attention to this in good faith, in order to find a solution for [the applicant] and avoid things for which we would all be responsible.”", "10. The RIBBS ’ records about the applicant stated that his continued stay there would worsen his condition. It was reiterated that its staff could not communicate with him because he was deaf and unable to speak. The applicant had also started injuring himself (biting himself). Whenever possible, he escaped from the institution. It was therefore recommended that he be transferred to a more appropriate institution. In this regard, meetings were held with the applicant ’ s guardian and other competent authorities. The RIBBS also raised the inappropriateness of the applicant ’ s placement with the competent ministry and inspectorate. In a letter of May 2013 the RIBBS told the relevant inspectorate, inter alia, “L.R. was categorised as suffering from the most severe form of physical disability, and he is in fact a schoolboy who is deaf and unable to speak”.", "11. On 6 November 2013 the Ombudsman visited the RIBBS, where the applicant was found tied to his bed by his leg. In a special report about the RIBBS of 16 November 2013, the Ombudsman stated:", "“ 2. Inhuman or degrading treatment of residents in the RIBBS", "A deaf child who cannot speak was found in the RIBBS, who had been tied [to a bed] for safety reasons; he cannot communicate with members of staff and the staff do not know sign language [so cannot] provide him with adequate care ...", "Holding that it is inhuman to place people with special disabilities in institutions that are inappropriate for them and have no adequate safeguards [to prevent] those people and other residents [from being] put at risk, ... it has to be established whether the rights of this group of people with special needs were violated.", "ESTABLISHED FACTS", "... Negative events", "People with special disabilities, for whom there are no adequate safeguards [at the institution], are placed in the RIBBS. The institution cannot provide these people with adequate care, nor does it have qualified staff to work with them. The Ombudsman considers that the inappropriate placement [of these people] constitutes, in itself, inhuman treatment.”", "12. In reply to the Ombudsman ’ s request for information, the RIBBS stated that the applicant ’ s placement there had been in contravention of all its internal regulations, a fact which it had brought to the attention of the competent ministries and social welfare centres.", "13. Following a request by the applicant ’ s guardian on 4 March 2014, B. Hospital examined the applicant and reached the same findings as those made in its earlier report, namely that he suffered from a moderate mental disability, the most severe form of physical disability (cerebral palsy), and a speech disability ( alalia ) (see paragraph 5 above).", "14. On 15 April 2014 the guardian placed the applicant in the S. Rehabilitation Institute, where he is at present.", "15. At a press conference on 25 June 2014 the Ombudsman presented its annual report and revealed that the applicant had been placed in the RIBBS and tied to his bed. Following that conference, on 30 June 2014 the HCHR visited the applicant at the S. Rehabilitation Institute.", "C. HCHR ’ s criminal complaint on behalf of the applicant", "16. On 17 July 2014 the HCHR lodged a criminal complaint, accusing the director of the RIBBS and other (unidentified) employees of “torture and other cruel, inhuman or degrading treatment or punishment” and “ill ‑ treatment in the performance of [their] duties”, punishable under Articles 142 and 143 of the Criminal Code (see paragraphs 34 and 35 below). It was alleged that not only had the applicant been tied to the bed by his leg with a rope described as being long enough to enable him to “reach the corridor”, he had also not been provided with adequate care and treatment, which had amounted to complete neglect. Furthermore, the RIBBS had had no qualified personnel to give the applicant treatment which was appropriate for his needs, which had resulted in his health deteriorating. The HCHR submitted several newspaper articles and a copy of the Ombudsman ’ s annual report as evidence.", "17. The S. public prosecutor ’ s office obtained a great deal of documentary material from the RIBBS, the Ombudsman and other competent authorities. It also examined the director of the RIBBS (J.G.D.) and four of its employees (V.M., Z.K., N.G. and S.I.).", "18. J.G.D. stated, inter alia :", "“... the RIBBS is an open-type institution ... all residents are easy to communicate with ... I immediately told [the director of B. Social Welfare Centre] that our institution had no qualified staff to treat [the applicant] and that we could not accommodate him ... [it was not just that the applicant] was deaf and unable to speak and that it was impossible to establish communication with him, he was also hyperactive and took every opportunity to leave the institution ... he attempted to jump from the window of his room ... In order to ensure his safety, we removed the handles from the window. I was also informed by employees that he had run away from the institution, so we looked for him in the [nearby] village. I constantly informed the competent authorities about the problems we had with [the applicant] and the fact that our institution was inappropriate and had no qualified staff to care for children like this. All my attempts were futile ...", "... [ regarding the Ombudsman ’ s visit] I informed the Ombudsman that [the applicant] created problems owing to his mental health and hyperactivity. For his safety, namely to prevent him from injuring or harming himself when employees were occupied [with other residents], employees were obliged to tie him to the bed for a while with cotton straps ( медицински завој ). When they were finished with their [other] duties, [the applicant] was untied and provided with all the requisite care, like other residents ...”", "19. Relevant parts of statements by the RIBBS ’ employees read as follows:", "“[the applicant] had no visible physical disabilities; on the contrary, he was a very active child ... Owing to his temperament, we avoided leaving him alone without any supervision ... because whenever he was alone, [he] would escape ... I do not think that he was aggressive, but he needed to be under [the RIBBS ’ ] employees ’ constant supervision. For those reasons, at night we tied him lightly to his bed with cotton straps ( памучен завој ). We did that strictly for safety reasons, to prevent him from escaping ... I tied [the applicant] to his bed at night, but I did not do it in order to ill ‑ treat him, [I did it] to protect him from harming himself by leaving the institution, where he would be exposed to danger ...” (Statement of V.M.)", "“... [ the applicant] was ... a hyperactive child ... at night we tied him to the bed on which he was sleeping for safety reasons only ... if we didn ’ t secure him, there was a risk that he would escape and go out of the institution onto the street, where there were people, animals and traffic that could put him in danger. That was particularly necessary after 8 p.m., during the night shift, when there were only two members of staff for sixty to seventy residents ... I know that during the day, usually during the midday break, not only I, but also other members of staff would tie [the applicant] to his bed for safety reasons ... All [the RIBBS] employees knew that, the director included, but I think that that was the only way to ensure [the applicant ’ s] safety. Our institution is an open-type institution: doors are open; windows have no bars. Given the lack of staff, ... the only way to prevent [the applicant] from harming himself or exposing himself to risk while we were occupied with other things was to tie him up during certain parts of the day ...” (Statement of Z.K.)", "“... despite the fact that, according to medical reports, [the applicant] was regarded as suffering from the most severe form of physical disability, [he had] no visible physical disabilities when he was admitted to the institution. [The applicant] walked without any problems; he ran, so I can say that he was hyperactive and constantly moving ... I consider that the RIBBS is not [an] appropriate [place] to accommodate a child with such disabilities, because our institution does not have [suitably] qualified staff ...” (Statement of N.G.)", "20. On 24 November 2014 the S. (first-instance) public prosecutor ’ s office notified, under section 288 of the Criminal Proceedings Act (see paragraph 33 below), the HCHR that by a decision of the same date it had rejected the criminal complaint against those accused of crimes, namely the director of B. Social Welfare Centre, the director of the RIBBS and five carers from the RIBBS (V.M., Z.K., V.B., P.M. and K.D., all identified by their full names). The decision found that their actions had not contained any elements of the alleged crimes or any other crime subject to State prosecution. The public prosecutor established: that the RIBBS was responsible for persons with physical disabilities, but in practice also accommodated mentally disabled people; that it had sought the applicant ’ s transfer to an appropriate institution, since its staff had not been adequately trained to provide him with the requisite care; that the applicant, notwithstanding his medical diagnosis, had not had any physical disability, but had instead been a very active child who had required constant care from the staff; that the applicant had received the daily care he required, but the results of the work with him had been limited, owing to his speech disability; that there had been incidents where the applicant had left the RIBBS; and that occasionally the applicant had been tied to his bed with a rope. The prosecutor held that the aim of that measure had not been to ill ‑ treat or degrade him, but to prevent him from running away from the RIBBS and putting himself in danger or harming himself. In those circumstances, the public prosecutor concluded that the act of tying the applicant to his bed could not be considered an act of unlawful use of force or threats intended to extract a confession or cause suffering. The prosecutor found that there had been a lack of intent on the part of the suspects to subject the applicant to inhuman or degrading treatment, a subjective element of the reported crimes. The applicant had been tied to his bed in order to prevent him from harming himself. Furthermore, L.R. could not be regarded as falling within any category of victims specified under Article 142 of the Criminal Code (see paragraph 34 below). A copy of the decision (containing an instruction on legal remedies) was served on B. Social Welfare Centre, the applicant ’ s guardian. The guardian did not appeal against the decision.", "21. On 30 December 2014, under the Public Prosecution Act (section 26(2)), the HCHR requested that the higher public prosecutor take over the prosecution. In that request, it reiterated that the applicant ’ s inappropriate placement and treatment in the RIBBS had amounted to inhuman and degrading treatment in violation of domestic and international law. It further added that the applicant ’ s guardian, although aware of his situation, had failed to take appropriate action. The findings of the first ‑ instance prosecutor ’ s office that the applicant had been tied to a bed for “safety reasons” were “unacceptable and absurd”. According to the HCHR, that amounted to unprofessional ( непрофесионално и нестручно ) exercise of office by the S. public prosecutor.", "22. In a letter of 27 January 2015 (received by the HCHR on 2 February 2015), the higher public prosecutor informed the HCHR that it had inspected the case file and had noted that the lower prosecutor had undertaken many investigative measures and had obtained a great deal of evidence regarding the complaint. The higher public prosecutor ’ s office referred to the Ombudsman ’ s report, according to which “[the applicant] had been tied up for safety reasons” (see paragraph 11 above). It endorsed the facts and reasoning provided by the first-instance public prosecutor. It also upheld the findings that the applicant had been tied to his bed for safety reasons and that there had been a lack of intent on the part of the suspects to debase the applicant.", "23. For the same reasons outlined above (see paragraph 21 above), the HCHR requested that the State Public Prosecutor take over the prosecution. By a letter of 1 June 2015 (received by the HCHR on 13 July 2015), the State Public Prosecutor confirmed the findings of the lower prosecutors ’ offices.", "D. Other relevant information", "1. Medical report about the applicant ’ s state of health following his discharge from the RIBBS", "24. On 10 July 2014 a psychiatric hospital in S. drew up a medical report about the applicant, the relevant parts of which state as follows:", "“... [the applicant] has a low level of functionality; [he has] communication difficulties ... [his] walking is stable, with synchronised movements; he keeps his balance properly ... Owing to [his] undeveloped communication skills, ... no two-way communication can be established ...", "I consider that [the applicant] suffers from autism ... accompanied by a mental disability and a speech disability. Owing to insufficient stimulation and early treatment, the child has a very low level of development and he is practically incapable of caring for himself.”", "2. Proceedings before the B. public prosecutor", "25. On 27 February 2015 the S. public prosecutor notified the B. public prosecutor about the HCHR ’ s criminal complaint, stating:", "“... it was established that the reported event [the applicant being tied to his bed] had been as a result of [the applicant ’ s] inappropriate placement in the RIBBS ... notwithstanding the fact that [the applicant] had no physical disabilities, in the medical report of 14 April 2008 he was classified as a person with multiple disabilities ... [including] the most severe form of physical disability ... He was classified in a similar way ... in 2014 ... Given the fact that medical reports about [the applicant] in 2008 and 2014, [prepared] by B. Hospital, ... did not reflect his real state of health ... we bring this information to your attention, as the competent prosecutor ’ s office, [so that you may] take measures regarding any crimes within your jurisdiction ...”", "26. Soon afterwards the B. public prosecutor ’ s office requested and obtained a copy of the medical material concerning the applicant from B. Hospital. It also obtained relevant material from the applicant ’ s guardian and the competent inspectorate, which had found no shortcomings in B. Hospital ’ s work. No information was submitted as to the outcome of the proceedings before the B. public prosecutor.", "3. Disciplinary proceedings", "27. By a decision of 22 August 2014, the director of the RIBBS found no grounds to reprimand (the measure proposed to her by the disciplinary commission of the institute) V.N., P.R.V., S.I. and E.J. – employees in the RIBBS who had allegedly failed to comply with the rules on keeping medical records ( неизготвување на потребната стручна документација ). There is nothing to suggest that the HCHR was informed about the institution and completion of those proceedings.", "4. Other actions taken by the HCHR regarding the applicant", "28. In the second half of 2014 the HCHR brought the allegedly incorrect medical diagnosis of the applicant and his subsequent neglect to the attention of the Ministry of Labour and Social Policy, the Ministry of Health, the competent inspectorate, B. Hospital and the Ombudsman. It also enquired as to whether any measures had been taken against the staff at the RIBBS and B. Hospital. The inspectorate replied that B. Hospital had not identified any shortcomings. The HCHR also reported the applicant ’ s case in its annual reports of 2014 and 2015.", "V. Conclusions and recommendationsB. Recommendations", "“ 85. The Special Rapporteur calls upon all States to:", "..", "(c) Conduct prompt, impartial and thorough investigations into all allegations of torture and ill-treatment in health-care settings; where the evidence warrants it, prosecute and take action against perpetrators; and provide victims with effective remedy and redress, including measures of reparation, satisfaction and guarantees of non-repetition as well as restitution, compensation and rehabilitation;", "... ”", "4. Persons with psychosocial disabilities", "“ 89. The Special Rapporteur calls upon all States to:", "(a) Review the anti-torture framework in relation to persons with disabilities in line with the Convention on the Rights of Persons with Disabilities as authoritative guidance regarding their rights in the context of health-care;", "(b) Impose an absolute ban on all forced and non-consensual medical interventions against persons with disabilities, including the non-consensual administration of psychosurgery, electroshock and mind-altering drugs such as neuroleptics, the use of restraint and solitary confinement, for both long- and short-term application. The obligation to end forced psychiatric interventions based solely on grounds of disability is of immediate application and scarce financial resources cannot justify postponement of its implementation;", "...”", "B. Council of Europe", "1. Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine of 4 April 1997 (CETS 164, Oviedo Convention)", "39. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, in its relevant parts provides:", "Article 6 – Protection of persons not able to consent", "” 1. Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.", "...", "3. Where, according to law, an adult does not have the capacity to consent to an intervention because of a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law. The individual concerned shall as far as possible take part in the authorisation procedure.", "4. The representative, the authority, the person or the body mentioned in paragraphs 2 and 3 above shall be given, under the same conditions, the information referred to in Article 5.", "5. The authorisation referred to in paragraphs 2 and 3 above may be withdrawn at any time in the best interests of the person concerned.”", "Article 7 – Protection of persons who have a mental disorder", "” Subject to protective conditions prescribed by law, including supervisory, control and appeal procedures, a person who has a mental disorder of a serious nature may be subjected, without his or her consent, to an intervention aimed at treating his or her mental disorder only where, without such treatment, serious harm is likely to result to his or her health.”", "2. Recommendation Rec(2004)10 of the Committee of Ministers to member States concerning the protection of the human rights and dignity of persons with mental disorders of 22 September 2004", "40. The relevant parts of this Recommendation read as follows:", "Chapter V – Specific situationsArticle 27 – Seclusion and restraint", "” 1. Seclusion or restraint should only be used in appropriate facilities, and in compliance with the principle of least restriction, to prevent imminent harm to the person concerned or others, and in proportion to the risks entailed.", "2. Such measures should only be used under medical supervision, and should be appropriately documented.", "3. In addition:", "i. the person subject to seclusion or restraint should be regularly monitored;", "ii. the reasons for, and duration of, such measures should be recorded in the person ’ s medical records and in a register.”", "3. Report to the Government of “the former Yugoslav Republic of Macedonia” on the visit to “the former Yugoslav Republic of Macedonia” carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 7 to 17 October 2014, CPT/ Inf (2016) 8, Strasbourg, 17 March 2016", "41. The relevant parts of the above Report read as follows:", "Social care establishments", "” ... representatives of the social work centres still did not visit regularly the persons under their care nor act effectively in their interests. Steps need to be taken to address these matters ...”" ]

[ "II. RELEVANT DOMESTIC LAW", "A. Criminal Proceedings Act of 2010", "29. Section 57 of the Criminal Proceedings Act sets out the rights of victims in criminal proceedings including, inter alia, the right to a representative ( полномошник ).", "30. Section 59(1) entitles a statutory custodian ( законски застапник ) to submit private criminal charges on behalf of a minor or a person divested of his or her legal capacity.", "31. Under section 66(1) of the Act, if the victim is a minor or a person divested of legal capacity, his or her statutory custodian takes the actions which are at the disposition of the victim. The private prosecutor and the victim, as well as their statutory custodians, can be assisted in the proceedings by a representative ( section 67).", "32. Under section 273(3), every person can report a crime subject to State prosecution.", "33. The victim is served with a copy of a decision by which the public prosecutor rejects his or her criminal complaint (with an instruction on legal remedies). The person who reported a crime is only informed about the reasons for rejection (section 288).", "B. Criminal Code", "34. Article 142 of the Code punishes acts of torture and other cruel, inhuman or degrading treatment. It provides that a person who, in the performance of his or her official duties, uses force, threat or other means with the aim to extort a confession or other statement from the accused, witness, expert or other person, or inflicts serious bodily or causes mental suffering in order to punish him or her for a criminal offence which that or another person has committed or is accused of, is to be punished by a term of imprisonment of three to eight years.", "35. Article 143 of the Criminal Code provides that a person who, in the performance of his or her official duties, mistreats, intimidates, insults or generally treats another in such a manner that his or her human dignity or personality is humiliated is to be punished by a term of imprisonment of one to five years.", "III. RELEVANT INTERNATIONAL MATERIAL", "A. The United Nations", "1. Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (A/RES/46/119, 17 December 1991)", "36. The relevant provisions of the United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care read as follows :", "Principle 1 Fundamental freedoms and basic rights", "“ ...", "2. All persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person.”", "Principle 9 Treatment", "“1. Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient ’ s health needs and the need to protect the physical safety of others.", "...", "3. Mental health care shall always be provided in accordance with applicable standards of ethics for mental health practitioners, including internationally accepted standards such as the Principles of Medical Ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment, adopted by the United Nations General Assembly. Mental health knowledge and skills shall never be abused.", "...”", "Principle 11 Consent to treatment", "“ ...", "11. Physical restraint or involuntary seclusion of a patient shall not be employed except in accordance with the officially approved procedures of the mental health facility and only when it is the only means available to prevent immediate or imminent harm to the patient or others. It shall not be prolonged beyond the period which is strictly necessary for this purpose. All instances of physical restraint or involuntary seclusion, the reasons for them and their nature and extent shall be recorded in the patient ’ s medical record. A patient who is restrained or secluded shall be kept under humane conditions and be under the care and close and regular supervision of qualified members of the staff. A personal representative, if any and if relevant, shall be given prompt notice of any physical restraint or involuntary seclusion of the patient.", "...”", "Principle 12 Notice of rights", "“ 1. A patient in a mental health facility shall be informed as soon as possible after admission, in a form and a language which the patient understands, of all his or her rights in accordance with the present Principles and under domestic law, and the information shall include an explanation of those rights and how to exercise them.", "2. If and for so long as a patient is unable to understand such information, the rights of the patient shall be communicated to the personal representative, if any and if appropriate, and to the person or persons best able to represent the patient ’ s interests and willing to do so.", "3. A patient who has the necessary capacity has the right to nominate a person who should be informed on his or her behalf, as well as a person to represent his or her interests to the authorities of the facility. ”", "2. Convention on the Rights of Persons with Disabilities, A/RES/61/106, 24 January 2007", "37. The relevant part of the United Nations Convention on the Rights of Persons with Disabilities provides:", "Article 15 Freedom from torture or cruel, inhuman or degrading treatment or punishment", "“1. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his or her free consent to medical or scientific experimentation.", "2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.”", "3. Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/22/53, of 1 February 2013,", "38. In his report on the issues of abusive practices in health-care settings, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, made the following submission:", "2. Absolute ban on restraints and seclusion", "“ 63. The mandate has previously declared that there can be no therapeutic justification for the use of solitary confinement and prolonged restraint of persons with disabilities in psychiatric institutions; both prolonged seclusion and restraint may constitute torture and ill-treatment (A/63/175, paras. 55-56). The Special Rapporteur has addressed the issue of solitary confinement and stated that its imposition, of any duration, on persons with mental disabilities is cruel, inhuman or degrading treatment (A/66/268, paras. 67-68, 78). Moreover, any restraint on people with mental disabilities for even a short period of time may constitute torture and ill ‑ treatment. It is essential that an absolute ban on all coercive and non-consensual measures, including restraint and solitary confinement of people with psychological or intellectual disabilities, should apply in all places of deprivation of liberty, including in psychiatric and social care institutions. The environment of patient powerlessness and abusive treatment of persons with disabilities in which restraint and seclusion is used can lead to other non-consensual treatment, such as forced medication and electroshock procedures. ”", "3. Domestic legislation allowing forced interventions", "“ 64. The mandate continues to receive reports of the systematic use of forced interventions worldwide. Both this mandate and United Nations treaty bodies have established that involuntary treatment and other psychiatric interventions in health ‑ care facilities are forms of torture and ill-treatment. Forced interventions, often wrongfully justified by theories of incapacity and therapeutic necessity inconsistent with the Convention on the Rights of Persons with Disabilities, are legitimized under national laws, and may enjoy wide public support as being in the alleged ‘ best interest ’ of the person concerned. Nevertheless, to the extent that they inflict severe pain and suffering, they violate the absolute prohibition of torture and cruel, inhuman and degrading treatment (A/63/175, paras. 38, 40, 41). Concern for the autonomy and dignity of persons with disabilities leads the Special Rapporteur to urge revision of domestic legislation allowing for forced interventions.", "... ”", "5. Persons with disabilities", "“ 80. Persons with disabilities are particularly affected by forced medical interventions, and continue to be exposed to non-consensual medical practices (A/63/175, para. 40). ... ”", "THE LAW", "I. ALLEGED VIOLATIONS OF THE CONVENTION", "42. The applicant complained that he had been wrongly diagnosed as early as 2008, which had led to his being placed in an inappropriate institution (the RIBBS), where he had not received adequate care and treatment, and that that had culminated in his being tied to his bed. The inadequate care and treatment had led to his neglect and the violation of his rights under Article 3 of the Convention. Furthermore, the investigation into the allegations that the applicant had been subjected to inhuman and degrading treatment had been ineffective. Lastly, with respect to his complaints under Article 3, the applicant had no effective remedy as required under Article 13. Articles 3 and 13 of the Convention read as follows:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 13", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. Admissibility", "1. Compatibility ratione personae", "(a) The parties ’ submissions", "( i ) The Government", "43. The Government contended that the HCHR did not have locus standi to lodge the present application on behalf of the applicant. In that connection, they argued that it had had no contact with him before the Ombudsman had published the 2003 report, and had not engaged subsequently in improving his situation. Accordingly, it had not had sufficient direct contact with the applicant, nor did it have sufficient personal interest to file the present application. Furthermore, the applicant ’ s parents were alive; he also had other relatives who could have acted on his behalf before the national authorities, besides his legal guardian and the Ombudsman. There was nothing to suggest that the HCHR had attempted to contact any of them and obtain authority to represent the applicant before the national authorities and the Court. Furthermore, the HCHR had not been either a party or the applicant ’ s representative in any of the proceedings before the national authorities. That was also true as regards the proceedings before the prosecuting authorities, where no procedural rights, including the right to appeal, had been conferred on the HCHR. The case was therefore inadmissible as incompatible ratione personae with the provisions of Article 34 of the Convention.", "(ii) The applicant", "44. The applicant maintained that he had been abandoned at birth and that there was no evidence that his parents or any other relative had ever visited him in an institution where he had been in foster care. His guardian could not be expected to bring the case on his behalf, since the director of B. Social Welfare Centre, as the person in charge, had been charged by the HCHR and had failed to appeal against the decision of the first-instance public prosecutor. The work of social welfare centres was a systemic problem, which the CPT had confirmed in its 2016 report about the respondent State (paragraph 36 above). The Ombudsman, although entitled to do so, had failed to initiate proceedings before the public prosecutor.", "45. The applicant stated that the HCHR had the requisite capacity to represent him before the Court, given the actions which it had taken on his behalf before the national authorities, which proved that it had been regarded as his de facto representative. Furthermore, it was a watchdog civil society organisation with extensive experience in providing social protection to people at risk (including those at risk as regards their health). In this context, it provided free legal aid to vulnerable groups and monitored conditions in State-run institutions, including institutions for people with disabilities, in relation to which it published reports. The fact that it had not contacted the applicant before the publication of the Ombudsman ’ s report was irrelevant. Its subsequent (three) visits to the applicant and the steps which it had taken to inform the public about the situation of people with disabilities in State-run institutions (such a report had last been published in 2012) and the applicant ’ s case (paragraph 28 above) were factors weighing in favour of its capacity to represent him.", "(b) The Court ’ s assessment", "46. The Court notes that the HCHR lodged the application on the applicant ’ s behalf without producing a power of attorney or written authority from the applicant himself, his legal guardian or any other competent person. In this regard, the Court reiterates that it is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim, within the meaning of Article 34, on whose behalf they purport to act in the proceedings before the Court (see Post v. the Netherlands, no 21727/08 ( dec. ), 20 January 2009).", "47. In the case of Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ([GC], no. 47848/08, §§ 104-111, ECHR 2014), the Grand Chamber identified the following “exceptional circumstances” which can justify an association being recognised as having standing as a de facto representative of the direct victim of the alleged violations: the victim ’ s vulnerability; the nature of the allegations brought before the Court; whether the direct victim has next of kin or a legal guardian likely to lodge an application with the Court; whether there has been contact between the direct victim and the representative; whether the representative was involved in any relevant domestic proceedings and recognised as having standing in those proceedings. The Court considers that these elements are determinative as to whether the HCHR can be recognised as having locus standi to act as the applicant ’ s de facto representative in the present case.", "48. It is undisputed that the applicant was the direct victim, within the meaning of Article 34 of the Convention, of the circumstances complained of before the Court. Given his disabilities as established by the national authorities (see paragraphs 5, 11 and 20 above) and not contested by the Government, he is to be considered a highly vulnerable person who is manifestly incapable of expressing any wishes or views regarding his own needs and interests, let alone wishes and views on whether to pursue any remedies. Furthermore, the allegations brought before the Court raise serious issues under Article 3 of the Convention.", "49. It is common ground between the parties that the applicant was abandoned at birth and has been in the care of State-run institutions since he was three months old. There is nothing to suggest that the applicant ’ s parents, who also suffer from a mental disability, or any other relative, contacted or visited him or showed any interest in his situation during the entire time he was placed in public institutions. It does not appear that any next of kin sought contact with the applicant after the Ombudsman had informed the public about his situation (see Comité Helsinki Bulgare c. Bulgarie, nos. 35653/12 and 66172/12, § 54, 28 June 2016).", "50. The Court notes that, unlike in the case of Centre for Legal Resources on behalf of Valentin Câmpeanu (cited above, § 111), the applicant has a legal guardian (B. Social Welfare Centre) appointed by the State to take care of his interests. It would normally be for the guardian to provide the HCHR with the requisite authority to represent the applicant before the Court. However, the Court attaches particular importance to the fact that the applicant ’ s guardian was accused, both before the domestic authorities and before the Court, of having failed in its responsibility to protect the applicant ’ s interests. Accordingly, it cannot be expected that the person suspected of having been part of the applicant ’ s alleged overall neglect in violation of his rights under Article 3 of the Convention would make a complaint on those grounds before the Court. In this regard, the Court notes that B. Social Welfare Centre did not challenge the decision of the first-instance public prosecutor rejecting the HCHR ’ s criminal complaint notwithstanding the fact that it contained a clear instruction on legal remedies (see paragraphs 20 and 33 above). Furthermore, the Court has not been informed that the respondent State appointed another guardian for the applicant instead of B. Social Welfare Centre after the above allegations had been brought to the attention of the authorities.", "51. On the other hand, the Court takes note of the fact that only shortly after the applicant ’ s case had been revealed in public by the Ombudsman, the HCHR visited him at S. Rehabilitation Institute and contacted different competent authorities about his situation, with a view to elucidating the relevant circumstances and attributing responsibility. Similarly, it submitted the criminal complaint to the competent public prosecutor without delay and pursued the matter, taking it up to the State Public Prosecutor (see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 111, and Association for the Defence of Human Rights in Romania – Helsinki Committee on behalf of Ionel Garcea v. Romania, no. 2959/11, § 43, 24 March 2015; see, conversely, Comité Helsinki Bulgare, cited above, §§ 56 and 57 ). It is noteworthy that all those steps taken by the HCHR before the national authorities were focused on the applicant and his alleged neglect by the State authorities (see, conversely, Comité Helsinki Bulgare, cited above, where the applicant association challenged before the domestic authorities general problems related to conditions in State-run institutions for disabled children, and initiated proceedings with respect to the direct victims following a significant delay after finding out about the critical events).", "52. As to the proceedings before the prosecuting authorities, the HCHR was not regarded as a party to those proceedings or the applicant ’ s legal representative. Consequently, it did not enjoy any procedural rights, including the right to appeal against the decision of the first-instance public prosecutor ( ibid., § 58, see paragraphs 30 and 31 above). However, the Court observes that the HCHR ’ s criminal complaint set in motion the investigation carried out by the public prosecutor. Whereas the prosecutor ’ s decision was not served on the HCHR, the HCHR obtained a detailed explanation from the public prosecutor regarding the investigative measures taken and the findings made. Subsequently, the HCHR promptly requested that higher and State public prosecutors take over the prosecution, which, in the absence of an appeal by the applicant ’ s guardian, was the only means of pursuing the matter before the higher prosecuting authorities that was available to the HCHR. It was the HCHR ’ s action that led the higher public prosecutor to review the lower prosecutor ’ s findings of fact and law.", "53. Against the above background, the Court considers that, in the exceptional circumstances of this case and bearing in mind the serious nature of the allegations, the HCHR should be granted standing to act as the applicant ’ s representative.", "54. Accordingly, the Court dismisses the Government ’ s objection concerning the HCHR ’ s lack of locus standi, in view of its standing as the applicant ’ s de facto representative.", "2. Non-exhaustion of domestic remedies", "(a) The parties ’ submissions", "55. The Government argued that the HCHR had not exhausted the domestic remedies, namely it had failed to bring criminal charges against the medical staff at B. Hospital who had allegedly incorrectly diagnosed the applicant, and the director of B. Social Welfare Centre, the applicant ’ s guardian. In a document of 31 May 2017 containing their additional observations and comments on the applicant ’ s just satisfaction claims, the Government, for the first time, objected on the grounds that the HCHR had not availed itself of a civil action for damages, which, given the findings of the prosecuting authorities about the absence of any intention on the part of the people accused, would have been more appropriate.", "56. The applicant stated that he had exhausted all effective remedies. The HCHR had alerted the administrative bodies about his situation and had requested that they institute disciplinary proceedings against those responsible in the RIBBS and B. Hospital. Its criminal complaint had also contained allegations about the inactivity of the applicant ’ s guardian and the applicant having been incorrectly diagnosed by doctors at B. Hospital. As regards the latter allegation, proceedings before the B. public prosecutor were still ongoing.", "(b) The Court ’ s assessment", "57. The relevant Convention principles have been summarised in the Court ’ s judgment in the case of Vučković and Others (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).", "58. Turning to the present case, the Court notes that shortly after it had found out about the applicant, the HCHR informed the competent administrative bodies about his situation and requested that appropriate measures be taken (see paragraph 28 above). The aim of that correspondence was to instigate actions and measures capable of elucidating the relevant circumstances and attributing responsibility. Those submissions triggered the competent inspectorate ’ s review of the work of B. Hospital and the RIBBS (see paragraphs 27 and 28 above).", "59. At the same time, the HCHR lodged a criminal complaint with the S. public prosecutor, accusing the director and several employees of the RIBBS of having subjected the applicant to inhuman and degrading treatment. As stated above, the HCHR ’ s complaint set in motion the investigation carried out by that public prosecutor (see paragraph 47 above), which led to several persons being identified as potential suspects, including the director of B. Social Welfare Centre (the applicant ’ s guardian, see paragraph 20 above), despite the fact that she had not been mentioned in the HCHR ’ s criminal complaint. Similarly, although the HCHR did not make any allegations against the medical staff at B. Hospital, it must be noted that the investigation carried out on the basis of its complaint led the S. public prosecutor to notify the B. public prosecutor, who had the requisite territorial jurisdiction, to investigate whether any crime had been committed in relation to B. Hospital ’ s alleged misdiagnosis of the applicant. The B. public prosecutor followed up on that information and took certain investigative steps, but apparently made no findings. In such circumstances, the Court is satisfied that the HCHR sufficiently brought the alleged wrongdoing in relation to the applicant to the attention of the competent authorities.", "60. As to the Government ’ s objection that the HCHR failed to exhaust the civil avenue of redress, the Court finds that, for the reasons stated in the case of Khlaifia and Others v. Italy ([GC], no. 16483/12, § 52, 1 5 December 2016), which likewise apply to the present case, the Government are estopped from relying on those grounds, which were not raised in their initial non-exhaustion plea. This is so, given the independent existence of two avenues of redress (civil and criminal), and the fact that the Government did not provide any explanation as to why they had not promptly relied on the existence of the civil avenue of redress.", "61. In view of the foregoing, the Court considers that the HCHR did everything that could reasonably be expected of it to exhaust domestic remedies on behalf of the applicant. Consequently, the Government ’ s non ‑ exhaustion objection has to be rejected.", "3. Compliance with the six-month rule", "(a) The parties ’ submissions", "62. The Government argued that the HCHR ’ s requests for higher public prosecutors to take over the prosecution had not been an effective remedy which it had been required to exhaust. This was so, since the decision as to whether or not to take over the prosecution had been within the discretion of those prosecutors. Accordingly, the HCHR should not have waited for the outcome of those requests, but should have lodged the application within six months of the S. public prosecutor ’ s office making its decision, or after the eight-day time-limit for an appeal by the applicant ’ s guardian against that decision had expired.", "63. The applicant submitted that the first-instance public prosecutor had never informed it about the decision being served on his guardian (or the exact date when service had taken place). In any event, he had submitted the application within six months of receiving the higher public prosecutor ’ s findings regarding its request for the lower public prosecutor ’ s work to be revised.", "(b) The Court ’ s assessment", "64. The Court reiterates that in assessing whether an applicant has complied with Article 35 § 1 of the Convention, it is important to bear in mind that the requirements contained in that Article concerning the exhaustion of domestic remedies and the six-month period are closely interrelated. Thus, as a rule, the six ‑ month period runs from the date of the final decision in the process of the exhaustion of domestic remedies. The pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six-month rule. It follows that if an applicant has recourse to a remedy which is doomed to failure from the outset, the decision on that appeal cannot be taken into account for the calculation of the six-month period (see Jeronovičs v. Latvia [GC], no. 44898/10, § 75, ECHR 2016, and El- Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 136, ECHR 2012).", "65. The Court reiterates its above findings about the specific status of the HCHR in the proceedings before the prosecuting authorities and the consequential effects on its procedural rights, notably its inability to lodge an appeal against the decision of the first-instance public prosecutor, which is an ordinary remedy to be used in such a situation. In addition, as stated by the applicant and not contested by the Government, he was not informed of that decision being served on his guardian, let alone the exact date when service took place. Furthermore, the applicant ’ s guardian failed to lodge an appeal against that decision, notwithstanding the clear instructions in this regard given by the first-instance public prosecutor.", "66. Accordingly, and as noted above (see paragraph 47 above), requesting that higher prosecutors take over the prosecution following the rejection of the criminal complaint by the first-instance public prosecutor was the only way in which the HCHR could pursue the case. Such a request was provided for by the Public Prosecution Act; it was directly accessible to the HCHR (something which is confirmed by the fact that, on the basis of that request, the higher public prosecutor examined the case and reviewed the lower public prosecutor ’ s findings of fact and law). Lastly, the Government did not put forward any arguments that those requests had lacked any prospect of success from the outset.", "67. In the specific circumstances of the case, the Court considers that it was not unreasonable for the HCHR to apply to higher public prosecutors. Accordingly, the time which those prosecutors took to deal with those requests is to be taken into account for the calculation of the six-month time-limit. Given the date when the decision was served on the HCHR, at least the date when the notification from the higher public prosecutor was served on it (see paragraph 22 above), the Court finds that the present application was submitted within the six-month time-limit. Therefore, the Government ’ s objection under this head must be rejected.", "4. Conclusion", "68. The Court notes that the Government did not raise any other objection regarding the admissibility of the application. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other grounds for declaring it inadmissible have been established. It must therefore be declared admissible.", "B. Merits", "1. Article 3 complaints", "(a) The applicant ’ s placement and treatment in the RIBBS", "( i ) The parties ’ submissions", "69. The applicant reiterated his complaints that his inappropriate placement in the RIBBS, where he had been tied up, had violated his rights under Article 3 of the Convention. The employees in the RIBBS had tied him up for extended periods of time, notwithstanding that they had been aware of his vulnerability. The absence of any intent on their part to harm him could not relieve the respondent State from its responsibility under the Convention.", "70. The Government admitted that the applicant had been tied to the bed occasionally ( во периоди ) during his placement in the RIBBS. However, as established by the prosecuting authorities, the persons concerned had reported that they had had no intention of harming the applicant. On the contrary, as noted by the Ombudsman, that measure had aimed to protect the applicant ’ s life and health, given his condition. That excluded any negligence on their part. While in the RIBBS, the applicant had not been deprived of necessary medical treatment or any other treatment or therapy. Owing to his mental disability, he had been unable to learn sign language. Furthermore, measures had continually been taken to reassess his disability and place him in a more appropriate institution. Lastly, there was nothing in the Ombudsman ’ s material to suggest that the applicant had suffered any consequences from being tied up, let alone visible consequences.", "(ii) The Court ’ s assessment", "(α ) General principles", "71. The Court considers that the Convention principles under Article 3 of the Convention summarised in its judgments in the cases of V.C. (V.C. v. Italy, no. 54227/14, §§ 89-95, 1 February 2018, as regards the State ’ s positive obligation to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment), as well as Blokhin ( Blokhin v. Russia [GC], no. 47152/06, §§ 135- 40, 23 March 2016) and Stanev (see, Stanev v. Bulgaria [GC], no. 36760/06, §§ 201- 04, ECHR 2012 ) apply likewise to the present case. The latter two cases are relevant notwithstanding that the applicants in those cases, unlike L.R. in the present case, were detained (pursuant to court orders) in a temporary detention center and a social care home, respectively. The Court notes that from the outset B. Social Welfare Centre, a State-run public institution, was assigned exclusive guardianship duties in respect of the applicant. The guardian ordered and arranged his placement in State-run social care institutions, namely B. Orphanage, B. Rehabilitation Institute, the RIBBS and finally S. Rehabilitation Institute, where he is at present (see paragraphs 5, 8 and 14 above). Furthermore, throughout his life, the applicant ’ s medical diagnoses and care were provided by public health and social care services. Accordingly, the applicant was all the time in the care of the authorities.", "(β ) Application to the present case", "72. The Court notes that from when the applicant was three months old his medical condition, as well as his mental and physical development, were monitored by health and social care services. Certain health problems were detected when he was one year old. In April 2008, at the age of three and a half, the applicant was diagnosed by B. Hospital as suffering from a moderate mental disability, the most severe form of physical disability (cerebral palsy), and a speech disability ( alalia ) (see paragraph 5 above). Findings regarding his mental, physical and speech disabilities were subsequently upheld (see paragraph 6 above).", "73. In view of such a diagnosis, on 29 June 2012 the applicant was placed in the RIBBS, an open-type social care institution for persons with physical disabilities. No consideration was given to the RIBBS ’ prompt objections that it could not accommodate persons with mental disabilities (the applicant had been diagnosed with such a disability) and that its personnel were not qualified to communicate with him and provide him with adequate care and treatment (see paragraph 7 above).", "74. From the time the applicant was admitted to the RIBBS, and throughout his stay there, the institution repeatedly voiced its concerns to the relevant authorities (e.g. the applicant ’ s guardian, the competent Ministry and inspectorate), saying that it could not provide the applicant with care and treatment corresponding to his state of health. Those concerns were manifold: it was understaffed and could not ensure the applicant ’ s constant supervision, which appeared necessary; its personnel were not qualified to communicate with him; and it did not have safety measures in place to prevent the applicant from running away from the premises of the institution (see paragraphs 9, 10 and 18 above).", "75. On 6 November 2013 the Ombudsman visited the RIBBS and found the applicant tied to his bed. It must be noted that this visit took place almost a year and a half after the applicant ’ s admission to the RIBBS. In the internal report of 16 November 2013, the Ombudsman stated his findings about the RIBBS ’ inadequate treatment of the applicant, which in itself amounted to inhuman treatment. He also noted that the applicant was being tied to his bed for “safety reasons” (see paragraph 11 above).", "76. On 15 April 2014, after spending a year and nine months in the RIBBS, the applicant was transferred to S. Rehabilitation Institute. Prior to that transfer, on 4 March 2014 he was examined again by B. Hospital, which confirmed its earlier findings, namely that he suffered from a moderate mental disability, the most severe form of a physical disability, and a speech disability (see paragraphs 5 and 13 above). No conclusion can be drawn as to whether B. Hospital consulted the RIBBS ’ personnel about the applicant ’ s medical condition. In this connection, the Court notes that, according to those personnel, the applicant had no “visible physical disabilities”, “he walked without any problems”, “he ran”, and he was “hyperactive” (see paragraphs 18 and 19 above). These statements appear to correspond to the medical report of 10 July 2014 by S. Psychiatric Hospital, in which there is no mention of the applicant having any physical disability. It is noteworthy that that report was drawn up only four months after B. Hospital ’ s report had been produced (see paragraphs 13 and 24 above).", "77. In the ensuing proceedings instituted by the HCHR, the prosecuting authorities confirmed that the RIBBS had had no qualified staff to provide the applicant with the requisite care, and therefore it had sought his transfer to an appropriate institution. Relying on the statements of members of staff of the RIBBS, and the Ombudsman ’ s report, the public prosecutor also established that the applicant had occasionally been tied to his bed (see paragraphs 20 and 22 above). The public prosecutor held that “the reported event [the applicant being tied to the bed] had been as a result of [the applicant ’ s] inappropriate placement in the RIBBS” (see paragraph 25 above). The fact that the applicant had occasionally been tied to his bed was confirmed by the Government (see paragraph 65 above).", "78. Although the national authorities were not sufficiently specific about how frequently the applicant had been tied up, the Court would refer to the statements given by the members of staff who were responsible for him on a daily basis. In this connection, it notes that two employees stated that they had tied the applicant up at night, “particularly after 8 p.m.” Z.K. further stated that the applicant had been tied up “usually during the midday break” and during “certain parts of the day” when employees had been occupied with other residents (see paragraph 19 above). That was confirmed by the director of the RIBBS (see paragraph 18 above). Although no inferences can be drawn as to how many times a day the applicant was tied up, it is not unreasonable, in view of the understaffing problem, to assume that that was common practice. Accordingly, it appears that throughout his placement in the RIBBS (which lasted over a year and nine months) the applicant was tied to his bed by his leg with a “rope” or “cotton straps” allegedly “long enough to enable him to reach the corridor” (see paragraphs 16 above), both at night and often during the day.", "79. Having regard to the foregoing considerations, the Court accepts the findings of the prosecuting authorities that the applicant ’ s placement in the RIBBS was inappropriate and adds that, as a result, he did not receive the requisite care. It appears that an inaccurate diagnosis preceded that placement, given that the findings that the applicant had the most severe form of a physical disability (cerebral palsy) contradicted the first-hand and direct information from the members of staff of the RIBBS, based on their personal experience and subsequent medical evidence. The RIBBS was in no way an institution for mentally disabled persons like the applicant. Furthermore, its personnel were not qualified to communicate with the applicant, who was deaf and unable to speak. The facilities in the RIBBS were not suited to his hyperactivity, which necessitated regular supervision that staff could not ensure. Such treatment led to the applicant ’ s overall condition worsening. In this connection, it is to be noted that after his admission to the RIBBS, the applicant started injuring himself, apparently for the first time (see paragraph 10 above). Furthermore, as noted in the medical report drawn up soon after his discharge from the RIBBS, he showed a “low level of functionality [and] communication difficulties ... [and had] undeveloped communication skills ...” The report further stated that “owing to insufficient stimulation and early treatment, [the applicant] had a very low level of development” (see paragraph 24 above). The Court finds it particularly striking that the applicant ’ s guardian and the other competent authorities were aware from the outset that the RIBBS could not provide the applicant with the requisite care (even before his admission), but nevertheless took no measure in reply to those serious alerts and pursued that placement for a considerable period of time. The Court notes that the respondent Government provided no explanation for the failure of the authorities to react in a prompt, concrete and appropriate manner (see Nencheva and Others v. Bulgaria, no. 48609/06, § 124, 18 June 2013).", "80. The inadequate treatment which the applicant received while in the RIBBS was made worse by the fact that he was tied to his bed at night and frequently during the day. The Court finds it particularly worrying that such a “measure”, which in itself is incompatible with human dignity, was used for approximately a year and nine months in respect of an eight-year-old child. On numerous occasions it has stressed the particular vulnerability of minors in the context of Article 3 of the Convention, given that treatment within the meaning of this Article is liable to have a greater impact ‑ especially in psychological terms – on a minor than on an adult (see Bouyid v. Belgium [GC], no. 23380/09, § 109, ECHR 2015). The applicant was even more vulnerable because of his disability, which meant that he could not complain at all about how he was affected by such treatment (see Keenan v. the United Kingdom, no. 27229/95, § 111, ECHR 2001 ‑ III).", "81. As to the findings of the national authorities that there had been no intention to harm the applicant, the Court notes that the absence of an intention to humiliate or debase a person cannot conclusively rule out a finding of a violation of this provision (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 117, 25 June 2019 and Bouyid, cited above, § 86). The Court further notes that, as established by the prosecuting authorities and confirmed by the Government, the applicant was tied to his bed for “safety reasons”, namely to prevent him from running away and thus putting himself in danger. Although the risk of a person running away or causing injury or damage is a factor to be taken into consideration (see Julin v. Estonia, nos. 16563/08 and 3 others, § 120, 29 May 2012), the Court is not convinced that tying the applicant to his bed by his leg in order to prevent him from running away from the premises of the RIBBS and thus endangering himself was the least intrusive measure available in the context of his safety. There is no indication that any alternatives (apart from the removal of the handles of the window of the applicant ’ s room, see paragraph 18 above) were considered or applied before or during the application of that “measure”. The Court cannot but note that the “measure” was not necessitated by any reason related to the applicant ’ s medical condition, but, as established by the prosecuting authorities (see paragraphs 25 and 72 above), was a consequence of his inappropriate placement in the RIBBS. In this connection further reference is made to the relevant international materials (see paragraphs 36-40 above).", "82. In these circumstances, the Court considers that the authorities, which were under an obligation to safeguard the applicant ’ s dignity and well-being, are responsible under Article 3 of the Convention for his inappropriate placement in the RIBBS, lack of requisite care and the inhuman and degrading treatment that he experienced therein (see Blokhin, cited above, § 146). The circumstances complained of by the HCHR on behalf of the applicant were the result of various steps taken by public authorities and institutions through their officials.", "83. The Court therefore concludes that there has been a violation of the applicant ’ s rights under Article 3 of the Convention.", "(b) Procedural obligation under Article 3 of the Convention", "( i ) The parties ’ submissions", "84. The applicant submitted that the investigation carried out by the public prosecutor had not been effective within the meaning of Article 3 of the Convention. In particular, he had heard evidence from only the employees of the RIBBS, whose statements had been regarded as completely reliable and had served as the basis for his findings. The prosecutor had not examined any other witnesses or the applicant ’ s guardian (the director of B. Social Welfare Centre), who had also been accused; no investigation had been carried out into whether any responsibility could be attributed to other State officials, or in order to elucidate the reasons why the applicant had been misdiagnosed. The fact that it had taken so long for the B. public prosecutor to gather material evidence had added to the overall ineffectiveness of the investigation.", "85. The Government submitted that the investigation into the allegations made by the HCHR had met the requisite requirements of effectiveness; it had been prompt, adequate, thorough, and it had ensured adequate involvement of the public (through the HCHR). In that connection, the public prosecutor had examined several people and obtained documentary evidence from the RIBBS, B. Social Welfare Centre and the Ombudsman. Furthermore, the ultimate decision in the investigation had contained sufficient reasons for rejecting the complaint. Lastly, the S. public prosecutor had instructed the B. public prosecutor, as the competent authority, to examine the discrepancy between the applicant ’ s real or apparent state of health ( реалната или очигледната ) and his state of health as noted in the medical reports of 2008 and 2014 drawn up by B. Hospital.", "(ii) The Court ’ s assessment", "86. The general principles relevant for the complaint under this head were summarized in M.S. (M.S. v. Croatia (no. 2), no. 75450/12, §§ 74 and 75, 19 February 2015).", "87. Turning to the present case, the Court notes that the HCHR complained to the prosecuting authorities that the applicant ’ s placement in the RIBBS had been inappropriate and that he had been tied to his bed with a rope. The Court considers that those allegations, as made at the time, were arguable. Article 3 thus required the authorities to conduct an effective investigation.", "88. The complaint was made against the director of the RIBBS and RIBBS employees who, at the time, were unidentified. The examination of that complaint lasted less than a year and was dealt with by prosecutors of three different ranks. Accordingly, it met the requirement of promptness.", "89. The prosecuting authorities rejected the complaint after examining a great deal of documentary material and hearing oral evidence from the suspects, namely the director of the RIBBS and four employees (of whom two were classified as suspects) who had been directly involved in the events in question and whose identities the prosecutor had established in the meantime. The investigation carried out by the first-instance public prosecutor was extended to include the applicant ’ s guardian (the director of B. Social Welfare Centre), notwithstanding the fact that she had not been included in the HCHR ’ s criminal complaint. Although the public prosecutor did not interview her, the Court does not consider that the failure to do so in the present case affected the establishment of the relevant facts. In submissions to the higher prosecutor and the State Prosecutor ’ s Office, the HCHR did not complain that the first-instance prosecutor had relied on only the accounts of the accused, or contend that it had been necessary to examine further witnesses or carry out other procedural steps. The Court finds that such arguments (see paragraph 79 above) are of a general nature. Accordingly, the investigation, in the above context, can be said to have been thorough.", "90. On the basis of the admitted evidence, the S. public prosecutor established the relevant facts, facts which, in the Court ’ s opinion, were not significantly different from the HCHR ’ s description of events, namely that the applicant ’ s placement in the RIBBS had been inappropriate and the applicant had occasionally been tied to his bed (see paragraphs 20 and 25 above). Furthermore, the S. public prosecutor notified the B. public prosecutor, as the competent prosecutor, of the discrepancy between the medical diagnosis given by B. Hospital and the applicant ’ s “real state of health”, so that an investigation could be carried out into whether any crime had been committed in that regard. In the Court ’ s opinion, the investigative measures taken by the S. public prosecutor in respect of the applicant ’ s guardian and B. Hospital are to be viewed in the context of the State ’ s duty under Article 3 of the Convention to carry out an official effective investigation. However, the Court cannot but note that the subsequent investigation carried out by the B. public prosecutor produced no results, despite the fact that a considerable period of time elapsed after the allegations had been brought to his attention (see paragraph 26 above).", "91. Furthermore, the Court observes that the investigation by the prosecuting authorities was essentially directed against the accused by the HCHR and in respect of the “measure” of restraint used on him which, as found above, violated his Article 3 rights. They rejected the HCHR ’ s complaint, finding that there were no grounds to hold that a criminal offence subject to State prosecution had been committed. The main reason for that finding was that they considered that there had been no intent ( умисла, намера ) on the part of suspects to subject the applicant to inhuman or degrading treatment, which was, as a matter of domestic law, as interpreted in the applicant ’ s case, a compulsory element of the reported crimes under Articles 142 and 143 of the Criminal Code (see paragraphs 20, 34 and 35 above). In this connection, the Court recalls that it is not its task to substitute itself for the domestic jurisdictions. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see Nencheva and Others, cited above, § 134). Furthermore, the fact that those suspected of ill-treatment were not charged (and punished) is not sufficient in itself to find a violation of Article 3 of the Convention, as the procedural obligation under Article 3 is not an obligation of result, but of means (see Đekić and Others v. Serbia, no. 32277/07, § 37, 29 April 2014).", "92. However, the Court reiterates that what is in issue in the present proceedings is not individual criminal ‑ law liability, but the State ’ s international ‑ law responsibility. Therefore, it must concentrate on the purpose of the obligation of effective investigation, which is to secure the effective implementation of domestic laws which protect the right not to be ill-treated and, in those cases involving State agents or bodies, to ensure their accountability (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 63, 20 December 2007, and Bureš v. the Czech Republic, no. 37679/08, § 131, 18 October 2012). Otherwise, a State ’ s duty to carry out an effective investigation would lose much of its meaning, and the rights enshrined in Article 3 of the Convention would be ineffective in practice (see Enukidze and Girgvliani v. Georgia, no. 25091/07, § 268, 26 April 2011).", "93. The Court notes that the criminal investigation identified other pertinent issues which had an impact on the applicant ’ s situation. In particular, the prosecuting authorities established that the applicant ’ s placement in the RIBBS had been inappropriate; that the RIBBS had notified the competent authorities of its inability to care for the applicant; and that allegedly there had been shortcomings as regards the applicant ’ s medical diagnosis by B. Hospital. Whereas these conclusions were made in the context of the charges brought against the RIBBS employees, the Court has not been informed that they led to any effective attempt to verify whether the system ’ s failures had resulted from acts by the authorities ’ representatives or any other public servant, for which they could be held accountable.", "94. In the Court ’ s view, and notwithstanding that the authorities, as they held, were not confronted with allegations of wilful ill-treatment, their overall response in investigating the allegations of serious human rights violations, as in the present case, cannot be regarded adequate. The absence of any appropriate reaction, let alone redress, with respect to the events complained of, cannot be said to be compatible with the procedural obligation of the State under Article 3 of the Convention.", "95. Accordingly, and having regard to the particular circumstances of the present case, there has been a violation of Article 3 of the Convention under its procedural limb.", "2. Article 13 complaint", "96. The applicant submitted that his guardian had been responsible for the neglect which he had suffered in relation to his placement and treatment in the RIBBS. Furthermore, the guardian had not initiated any proceedings regarding the events that had led to such a situation. Only the HCHR had brought proceedings in order have those responsible held accountable. It further reiterated its arguments (see paragraph 79 above) that the criminal investigation in the present case had been ineffective. In addition, it submitted statistical information based on its research, according to which the prosecuting authorities had investigated only seven cases out of thirty ‑ two complaints of torture and inhuman and degrading treatment between 2009 and 2015. Similarly, out of 138 reported crimes of harassment, investigations had been carried out only in thirty cases. During the same period, out of twenty-two cases of alleged torture, in eight cases, the accused had been sentenced to a suspended prison term (there had been no effective prison penalty). Out of fifty-six cases of alleged harassment, suspended prison sentences had been imposed in sixteen cases, and an effective prison penalty had been imposed in one case.", "97. The Government argued that the applicant had an effective remedy in respect of his complaints under Article 3 of the Convention. Alternatively, if the Court were to find a violation of the procedural obligation under that provision, it would not be necessary for it to examine the allegations under this head separately.", "98. Having regard to the grounds on which it has found a violation of the procedural aspect of Article 3, the Court declares the complaint under this head admissible and finds that no separate issue arises under Article 13 of the Convention (see Andonovski v. the former Yugoslav Republic of Macedonia, no. 24312/10, § 107, 23 July 2015).", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "99. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "100. The applicant claimed 50,000 euros (EUR) in respect of non ‑ pecuniary damage, to be paid into a bank account which the respondent State would open in the applicant ’ s name.", "101. The Government contested the applicant ’ s claim as unfounded. They also argued against opening a bank account in the applicant ’ s name, referring to practical reasons (without giving further details). In addition, they submitted that it had not been specified who would be authorised to have such funds at his disposal, and for what purposes. Accordingly, if the Court were to find a violation of the Convention, the Court ’ s judgment in this regard should constitute sufficient just satisfaction in itself for any non ‑ pecuniary damage suffered by the applicant.", "102. The Court considers that the applicant must have endured suffering as a result of his inappropriate placement in the RIBBS between June 2012 and April 2014, during which time he was frequently tied to his bed by his leg. This suffering undoubtedly aroused in him feelings of helplessness and anxiety. Ruling on an equitable basis, and having regard to the gravity of the violation, coupled with the duration and its effects in view of the applicant ’ s particular vulnerability, the Court finds it appropriate to award the applicant EUR 18,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. Appropriate arrangements are to be made so that this amount may be used by an authorised guardian of the applicant in the applicant ’ s best interests.", "B. Costs and expenses", "103. The applicant also claimed EUR 3,350 for the costs and expenses incurred in the proceedings before the Court. This amount included legal fees for 100 hours of legal work, expenses related to the printing and copying of 2,000 pages, and postal expenses. Apart from an itemised list, the applicant submitted no supporting documents. Any award under this head was to be paid directly to the HCHR.", "104. The Government contested that claim as unsubstantiated and excessive, and submitted that the costs had not actually been incurred.", "105. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Editions Plon v. France, no. 58148/00, § 64, ECHR 2004 ‑ IV). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,650 for the proceedings before the Court, plus any tax that may be chargeable to the applicant. This amount is to be paid into the bank account of the HCHR.", "C. Default interest", "106. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The facts of the case, as submitted by the parties, may be summarised as follows.", "7. The applicant is an Afghan national from Nangarhar province in eastern Afghanistan who was born in 1979 and lives in the United Kingdom.", "8. He arrived in the United Kingdom on 30 August 2010 and claimed asylum on 1 September 2010. The basis of his claim was that he would be arrested and killed by the Afghan authorities because, after the death of his father, he had taken over the role of the military commander of 25 men for Hizb-i- Islami. He also claimed that Hizb-i- Islami would force him to become a suicide bomber. Finally, he claimed that he had been seriously injured during the course of a rocket launch in Afghanistan four years earlier and had been left disabled. He relied on the fact that his lower right leg and penis had both been amputated and he had a false limb; that his left leg and right hand had been seriously injured; and that he suffered from depression.", "9. On 17 September 2010, his asylum application was refused by the Secretary of State.", "10. First, due to the inconsistencies in the applicant ’ s claim and the vagueness of his account, it was not accepted either that the applicant ’ s father had ever been involved with Hizb-i- Islami or that the applicant had ever been a Hizb-i-Islami commander.", "11. Second, it was not accepted that he would be of any adverse interest to the Afghan authorities upon return given, inter alia, that he had not demonstrated any Hizb-i- Islami involvement; that he had remained in hospital for two months after the rocket attack without any problems; that he had returned from hospital to his home village where he had lived for six months without any problems from the authorities; and that, in any event, a number of ex Hizb-i-Islami members occupied high positions within the Afghan Government and the objective evidence demonstrated that even former commanders did not have any problems with the Afghan authorities if they made it clear that they were no longer working with Gulbuddin Hekmatyar (Hizb-i-Islami ’ s leader).", "12. Third, it was not accepted that he would be at risk from Hizb ‑ i ‑ Islami given that he had claimed that they had supported him when he had been injured; that they had provided him with funds to travel to the United Kingdom; and the fact that, in his original screening interview with the United Kingdom immigration authorities, he had only made reference to his fear of the Afghan authorities and had not mentioned any risk from Hizb-i- Islami.", "13. The Secretary of State did not consider that the absence of a medical report on the applicant ’ s physical injuries would prejudice his asylum application from being decided fairly because it was not disputed that his injuries existed and any report would not be able to corroborate how his injuries had been sustained. Further, it was not considered that the applicant ’ s disabilities could support his claim to be at risk upon return because the applicant himself was uncertain as to who had been responsible for the rocket attack which had caused his injuries.", "14. Although it was acknowledged that the medical facilities in Afghanistan were limited and underdeveloped, it was noted that the applicant had previously received hospital care there and it was considered that any further medical care would similarly be available to him upon return. Additionally, it was noted that the applicant ’ s family remained in Afghanistan and it was considered that there was no reason to suggest that they would not adequately support and assist him upon return. Consequently, it was not accepted that his case was “very exceptional” or that it would cross the high threshold of severity such as to engage Article 3 within the meaning of N. v. the United Kingdom [GC], no. 26565/05, 27 May 2008.", "15. Finally, with reference to the country guidance case of GS (Article 15(c): indiscriminate violence) Afghanistan CG [2009] UKAIT 00044 (see paragraphs 28 - 29 below ), it was not accepted that the applicant would be personally at enhanced risk of indiscriminate violence in Afghanistan as a person with an amputated limb. To that end, the Secretary of State noted that there were an estimated 800,000 mobility impaired persons in Afghanistan of whom 40,000 were limb amputees. The applicant had shown the resolve and ability to travel to the United Kingdom via various methods of transport and had resided in Afghanistan for four years following his injuries. As such, he had not shown that he would be at enhanced risk or that there was no viable relocation option open to him in Afghanistan.", "16. The applicant appealed against the refusal of his asylum claim claiming that his return to Afghanistan would violate, inter alia, Article 3 of the Convention. In his appeal statement, he claimed that he had no one in Afghanistan to support him and that he would find life extremely hard in Afghanistan. He claimed that he had lost contact with his two sisters who were both married and living with their own families in Afghanistan.", "17. On 4 October 2010, the First-tier Tribunal ( Immigration and Asylum Chamber ) (“the First-tier Tribunal” ) dismissed the applicant ’ s appeal for substantially the same reasons as the Secretary of State as set out above. The Immigration Judge accepted certain aspects of the applicant ’ s claim stating:", "“103. I accept that he is an Afghan national who may well have come from a village in Nangarhar province and may well have spent the early part of his life as a farmer. I accept that he may well be a single man and that he has clearly suffered certain severe injuries as a result of an accident which may well have involved a mortar, rocket or some form of bomb. I accept that he does have an amputated lower leg with a false limb together with the other injuries he has described.", "104. I accept that he made his way to the UK and this may well have been over a six month period in a variety of modes of transport including a lorry. I accept that he will have paid an agent for this and that sum may well have been in the region of 15,000 US dollars. I accept that it may have been impractical for him to make a separate application for asylum en route. It is likely that he would have been under the control of the agent.", "105. However, beyond these findings I cannot go. I cannot be satisfied as to any other details of the appellant ’ s case. I cannot be satisfied that he has established that he was a commander for the Hizb-e-Islami and for approximately a year and thereafter he remained with them after a brief stay with his family in the family village until he decided to leave, when it was suggested that he became a suicide bomber.”", "18. The Immigration Judge found, in the alternative, that even if the applicant had at some stage been a member of the Hizb-i- Islami, he had not shown that he would not be able to return to Afghanistan and make his peace with the Afghan authorities as someone who had left Hizb-i- Islami a number of years earlier. The Immigration Judge considered that there was no reason why the applicant could not return to Afghanistan to resume living either in Nangarhar or in Kabul without any fear from the authorities.", "19. In relation to the applicant ’ s disability, the Immigration Judge commented that it might “well be that there would be limited prospects for him in Afghanistan in view of his injuries”, and stated that:", "“ [ H] e would have certain disadvantages greater than others by reason of his disability. But as referred to in the objective evidence he would not be alone with 80,000 amputees and 400,000 rendered disabled by the effects of war. This may not be a comforting statistic but it demonstrates how persons with such disadvantages are continuing to exist in Afghanistan .”", "20. Finally, the Immigration Judge did not accept that the applicant had demonstrated that he would be more susceptible to indiscriminate violence by reason of his disability noting that:", "“[T] he fact that he has survived in Afghanistan for three to four years without any indiscriminate violence overcoming him demonstrates that he has managed to cope with his disability in the political unrest that exists. The fact that he managed to come the whole of the way from Afghanistan in a variety of means of transport indicates that he is a resilient man who has overcome difficulties in a practical way. He may well have received assistance from those sympathetic to them. There is no reason to think that he will not continue to do so throughout his life.”", "21. On 7 October 2010, a Senior Immigration Judge of the First-tier Tribunal refused permission to appeal because the grounds of appeal only pleaded to be allowed to remain in the United Kingdom but did not identify any arguable error of law and there was no other good reason to grant permission to appeal.", "22. On 13 October 2010, the Upper Tribunal of the Immigration and Asylum Chamber (“the Upper Tribunal”) refused permission to appeal because no arguable error of law could be found in the Immigration Judge ’ s determination." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Primary legislation", "23. Section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the NIA Act 2002”), provides a right of appeal against an immigration decision made by the Secretary of State for the Home Department.", "24. Appeals in asylum, immigration and nationality matters are heard by the First-tier Tribunal ( Immigration and Asylum Chamber ), which replaced the former Asylum and Immigration Tribunal (“AIT”) on 15 February 2010.", "25. Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a right of appeal to the Upper Tribunal, with the permission of the First-tier Tribunal or the Upper Tribunal, on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.", "26. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.", "B. Country guidance determinations", "27. Country guidance determinations of both the former AIT and the Upper Tribunal are to be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the AIT or Upper Tribunal that determined the appeal. Unless expressly superseded or replaced by a later country guidance determination, country guidance determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence.", "1. GS (Article 15 (c) : Indiscriminate violence) Afghanistan CG [2009] UKAIT 00044", "28. In the country guidance determination of GS, of 15 October 2009, the then AIT held that there was not in Afghanistan such a high level of indiscriminate violence that substantial grounds existed for believing that a civilian would, solely by being present there, face a real risk which threatens the civilian ’ s life or person, such as to entitle that person to the grant of humanitarian protection, pursuant to Articles 2(e) and 15(c) of Council Directive 2004/83/EC (see paragraphs 33 - 34 ).", "29. In considering the concept of a group of people at enhanced risk of indiscriminate violence, the AIT further commented that:", "“ The European Court made it clear in Elgafaji that where a person comes within a group of people for whom there is an enhanced risk, the degree of indiscriminate violence does not need to be as high as it would otherwise have to be in order to invoke Article 2 or Article 15(c). We have already observed that the ultimate test is that of real risk of serious harm. We have not heard much evidence about enhanced risk categories, and that is not an issue we have had to consider in relation to the appellant. It was accepted by counsel for the respondent that those who could be perceived as collaborators may be considered to be in such a category. That may include teachers, local government officers and government officials. The concept of a group of people at enhanced risk of indiscriminate violence is not an immediately obvious one. The difficulty concerns the use of the word “indiscriminate”, but the answer is partly contained in QD and AH, which considered the “individual risk of indiscriminate violence”. The way in which an enhanced risk might arise for a group can best be demonstrated by example. If, say, the Taliban wanted to make a point about teachers continuing to teach girls, it may resolve to kill a teacher. It would not be any specific teacher but one who came into their sights. A teacher is of course not a combatant and an attempt to kill the first teacher they came across could be argued to demonstrate that teachers were then at enhanced risk of indiscriminate violence. Another possible example could be disabled people. If a bomber, or sniper, were to walk into a crowded marketplace, the public may well flee. A man with only one leg would move considerably more slowly and arguably as a result would be in a higher risk group than the general public. In view of the paucity of evidence, we cannot give a list of risk categories, and certainly cannot say that any particular occupation or status puts a person into such a higher risk category. We merely record that there may be such categories, and that if a person comes within one, the degree of indiscriminate violence required to succeed may be reduced depending upon the particular facts of the case both in terms of the individual concerned, and the part of Afghanistan from which he comes. It should also be borne in mind that such a person may, depending on the facts, be entitled to refugee status rather than relying on the subsidiary protection offered by Articles 2 and 15 of the Qualification Directive. We emphasise that those examples should not be taken to indicate that teachers, or the disabled, are members of enhanced risk groups, without proof to that effect. ”", "2. Further consideration of the level of indiscriminate violence in Afghanistan by the Upper Tribunal", "30. In HK and others (minors – indiscriminate violence – forced recruitment by Taliban – contact with family members) Afghanistan CG [2010] UKUT 378 (IAC), the Upper Tribunal, in a determination dated 21 October 2010, concluded, inter alia, that the evidence as to the level of indiscriminate violence affecting civilians generally in Afghanistan which had become available since GS (see paragraphs 28 - 29 above ) was not sufficient to show that the guidance given by the AIT in GS was no longer to be regarded as valid.", "31. In AA (unattended children) Afghanistan CG [2012] UKUT 00016 (IAC), promulgated on 1 February 2012, the Upper Tribunal found that there could be no doubt that the material before it revealed a deterioration in the security situation in Afghanistan since HK and others. However, the Upper Tribunal found that there was no evidence to suggest that there was any material difference to the risk to which the adult civilian population was subject in Afghanistan.", "32. In AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 (IAC), promulgated on 18 May 2012, the Upper Tribunal reconsidered the evidence as to the level of indiscriminate violence affecting ordinary civilians which had become available since GS (see paragraphs 28 - 29 above). The Upper Tribunal concluded as follows:", "(i) This decision replaces GS (Article 15(c): indiscriminate violence) Afghanistan CG [2009] UKAIT 00044 as current country guidance on the applicability of Article 15(c) to the on-going armed conflict in Afghanistan. ...", "(ii) Despite a rise in the number of civilian deaths and casualties and (particularly in the 2010-2011 period) an expansion of the geographical scope of the armed conflict in Afghanistan, the level of indiscriminate violence in that country taken as a whole is not at such a high level as to mean that, within the meaning of Article 15(c) of the Qualification Directive, a civilian, solely by being present in the country, faces a real risk which threatens his life or person.", "(iii) Nor is the level of indiscriminate violence, even in the provinces worst affected by the violence (which may now be taken to include Ghazni but not to include Kabul ), at such a level.", "(iv) Whilst when assessing a claim in the context of Article 15(c) in which the respondent asserts that Kabul city would be a viable internal relocation alternative, it is necessary to take into account (both in assessing “safety” and reasonableness”) not only the level of violence in that city but also the difficulties experienced by that city ’ s poor and also the many Internally Displaced Persons (IDPs) living there, these considerations will not in general make return to Kabul unsafe or unreasonable ... ”", "III. RELEVANT EUROPEAN UNION LAW", "33. Council Directive 2004/83/EC of 29 April 2004 (on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted : “the Qualification Directive” ) has the objective, inter alia, of ensuring EU Member States apply common criteria for the identification of persons genuinely in need of international protection (recital six of the preamble).", "34. In addition to regulating refugee status within the European Union legal order, it makes provision for granting subsidiary protection status. Article 2(e) defines a person eligible for subsidiary protection status as someone who would face a real risk of suffering serious harm if returned to his or her country of origin and who is unable, or, owing to such risk, unwilling to avail himself of the protection of that country.", "“ Serious harm ” is defined in Article 15 as consisting of:", "“a) death penalty or execution; or", "b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or", "c) serious and individual threat to a civilian ’ s life or person by reason of indiscriminate violence in situations of international or internal armed conflict. ”", "35. In case C-465/07, Elgafaji v. Staatssecretaris van Justitie, 17 February 2009, the Grand Chamber of the then Court of Justice of the European Communities was asked to give a preliminary ruling on the meaning of Article 15(c) of the Qualification Directive and the criteria for its application. The court considered it appropriate to compare the three types of “serious harm” defined in Article 15 of the Directive and continued:", "“ ... the terms ‘ death penalty ’, ‘ execution ’ and ‘ torture or inhuman or degrading treatment or punishment of an applicant in the country of origin ’, used in Article 15(a) and (b) of the Directive, cover situations in which the applicant for subsidiary protection is specifically exposed to the risk of a particular type of harm.", "33 By contrast, the harm defined in Article 15(c) of the Directive as consisting of a ‘ serious and individual threat to [the applicant ’ s] life or person ’ covers a more general risk of harm.", "34 Reference is made, more generally, to a ‘ threat ... to a civilian ’ s life or person ’ rather than to specific acts of violence. Furthermore, that threat is inherent in a general situation of ‘ international or internal armed conflict ’. Lastly, the violence in question which gives rise to that threat is described as ‘ indiscriminate ’, a term which implies that it may extend to people irrespective of their personal circumstances.", "35 In that context, the word ‘ individual ’ must be understood as covering harm to civilians irrespective of their identity, where the degree of indiscriminate violence characterising the armed conflict taking place – assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred – reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat referred in Article 15(c) of the Directive.", "...", "39 In that regard, the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection.", "...", "43 Having regard to all of the foregoing considerations, the answer to the questions referred is that Article 15(c) of the Directive, in conjunction with Article 2(e) of the Directive, must be interpreted as meaning that:", "– the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances;", "– the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place -- assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred -- reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.", "44 It should also, lastly, be added that the interpretation of Article 15(c) of the Directive, in conjunction with Article 2(e) thereof, arising from the foregoing paragraphs is fully compatible with the ECHR, including the case-law of the European Court of Human Rights relating to Article 3 of the ECHR (see, inter alia, [ NA. v. the United Kingdom, no. 25904/07, § § 115- 117, 17 July 2008 ] and the case ‑ law cited).”", "IV. RELEVANT INTERNATIONAL LAW", "36. The United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol were adopted by the United Nations General Assembly on 13 December 2006. Twenty-six Contracting States have ratified both the Convention and the Optional Protocol. A further seven Contracting States have ratified only the Convention. The United Kingdom ratified the Convention on 8 June 2009 and the Optional Protocol on 7 August 2009.", "37. Article 1 provides that:", "“The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.", "Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”", "38. Article 11 provides that :", "“States Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters.”", "39. Article 15, where relevant, provides that:", "“ ...", "2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.”", "40. Article 16, where relevant, provides that:", "“ ...", "4. States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services. Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self ‑ respect, dignity and autonomy of the person and takes into account gender- and age ‑ specific needs ... .”", "V. RELEVANT INFORMATION ABOUT AFGHANISTAN", "A. United Nations High Commissioner for Refugees (“UNHCR”)", "41. On 17 December 2010, UNHCR issued the most recent Eligibility Guidelines for Assessing the International Protection needs of Asylum ‑ Seekers from Afghanistan (“the December 2010 UNHCR Guidelines”) and set out the categories of Afghans considered to be particularly at risk in Afghanistan in view of the security, political and human rights situation in the country at that time.", "42. Those Guidelines observed:", "“UNHCR considers that individuals with the profiles outlined below require a particularly careful examination of possible risks. These risk profiles, while not necessarily exhaustive, include (i) individuals associated with, or perceived as supportive of, the Afghan Government and the international community, including the International Security Assistance Force (ISAF); (ii) humanitarian workers and human rights activists; (iii) journalists and other media professionals; (iv) civilians suspected of supporting armed anti-Government groups; (v) members of minority religious groups and persons perceived as contravening Shari ’ a law; (vi) women with specific profiles; (vii) children with specific profiles; (viii) victims of trafficking; (ix) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals; (x) members of (minority) ethnic groups; and (xi) persons at risk of becoming victims of blood feuds.", "In light of the worsening security environment in certain parts of the country and the increasing number of civilian casualties UNHCR considers that the situation can be characterized as one of generalized violence in Helmand, Kandahar, Kunar, and parts of Ghazni and Khost provinces. Therefore, Afghan asylum-seekers formerly residing in these areas may be in need of international protection under broader international protection criteria, including complementary forms of protection. In addition, given the fluid and volatile nature of the conflict, asylum applications by Afghans claiming to flee generalized violence in other parts of Afghanistan should each be assessed carefully, in light of the evidence presented by the applicant and other current and reliable information on the place of former residence. This latter determination will obviously need to include assessing whether a situation of generalized violence exists in the place of former residence at the time of adjudication.", "UNHCR generally considers internal flight as a reasonable alternative where protection is available from the individual ’ s own extended family, community or tribe in the area of prospective relocation. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control. Given the breakdown in the traditional social fabric of the country caused by decades of war, massive refugee flows, and growing internal migration to urban areas, a case-by-case analysis will, nevertheless, be necessary .”", "43. The Guidelines further recorded a worsening security environment in certain areas of the country and characterised the situation as one of generalised violence in the Helmand, Kandahar, Kunar and parts of Ghazni and Khost provinces. The Guidelines stated the following:", "“ The intensification and spread of the armed conflict in Afghanistan took a heavy toll on the civilian population in 2009 and continued to worsen through the first half of 2010. At least 5,978 civilians were reported killed and injured in 2009, the highest number of civilian casualties recorded in one year since the fall of the Taliban in 2001. 3,268 casualties were recorded during the first six months of 2010, representing a 31 percent increase over the same period in 2009. Compared to previous years and contrary to seasonal trends, a significant increase in the number of security incidents has been observed during the first half of 2010. This increase is in part attributable to an increase in military operations in the southern region since February 2010 and to significant activities of armed anti-Government groups in the south-eastern and eastern regions of Afghanistan. It is reported that armed anti-Government groups remain responsible for the largest proportion of civilian casualties, whether due to targeted or indiscriminate attacks.", "The continued instability in Afghanistan has resulted in the shrinking of the humanitarian space, limiting the presence and activities of humanitarian workers and NGOs. Conflict-related human rights violations are on the rise, including in areas previously considered relatively stable. The escalation of the conflict between the Afghan and international military forces, and the Taliban and other armed groups, has contributed to limiting the access to health care and education, particularly in the southern and south-eastern regions of the country. A broad spectrum of civilians, including community elders, humanitarian personnel, doctors, teachers and construction workers has been targeted by armed anti-Government groups ... ”", "44. In relation to internal relocation, the Guidelines stated that:", "“The traditional extended family and community structures of Afghan society continue to constitute the main protection and coping mechanism, particularly in rural areas where infrastructure is not as developed. Afghans rely on these structures and links for their safety and economic survival, including access to accommodation and an adequate level of subsistence. Since the protection provided by families and tribes is limited to areas where family or community links exist, Afghans, particularly unaccompanied women and children, and women single head of households with no male protection, will not be able to lead a life without undue hardship in areas with no social support networks, including in urban centres. In certain circumstances, relocation to an area with a predominately different ethnic/religious make-up may also not be possible due to latent or overt tensions between ethnic/religious groups.”", "B. Other United Nations Reports", "1. United Nations Assistance Mission in Afghanistan", "45. The United Nations Assistance Mission in Afghanistan (“UNAMA”) Mid Year Report 201 1 on the Protection of Civilians in Armed Conflict (“the UNAMA Report”) covers the period from 1 January 201 1 and 30 June 201 1 and is compiled, inter alia, to monitor the situation of civilians in Afghanistan. In the Executive Summary, the UNAMA Report states:", "“ In the first six months of 2011, the armed conflict in Afghanistan brought increasingly grim impacts and a bleak outlook for Afghan civilians. As the conflict intensified in the traditional fighting areas of the south and southeast and moved to districts in the west and north, civilians experienced a downward spiral in protection. At the same time, non-State armed groups or Anti-Government Elements (AGEs) altered their tactics with deadly results. Increasingly, AGEs undertook unlawful means of warfare including increased use of improvised explosive devices (IEDs) – particularly victim-activated pressure plate IEDs which act like anti-personnel landmines and are indiscriminate, as they are detonated by any person stepping on or any vehicle driving over them – targeted killings of high profile civilians, and attacks on protected places such as hospitals. ”", "2. United Nations Committee on Economic Social and Cultural Rights (“ UNCESCR”)", "46. In its Concluding Observations on Afghanistan dated 7 June 2010, the UNCESCR stated:", "“The Committee, while taking note of the adoption of the 2008 Afghanistan National Disability Action Plan [see paragraph 48 below], regrets that the report does not accurately reflect the current situation of persons with disabilities and characterizes disability mainly as a matter of charity and a medical concern. The Committee is concerned at the lack of sufficient measures to implement the Action Plan.", "The Committee recommends that the State party take concrete steps to implement the 2008 Afghanistan National Disability Action Plan without discrimination and, in this regard, consider ratifying the Convention on the Rights of Persons with Disabilities and its Optional Protocol.”", "C. Reports from Afghanistan", "1. The Afghanistan Independent Human Rights Commission (“ the AIHRC”)", "47. In its Report on the Situation of Economic and Social Rights in Afghanistan – IV, Qaws 1388 (November/December 2009), the AIHRC stated:", "“ Persons with disabilities are among the most vulnerable segments of population and the government has taken no measures to enable their full participation in society and to ensure their access to social and educational services. Due to the lack of public awareness about the concept of disability, persons with disabilities are often perceived as a family and societal burden and are humiliated and discriminated against. Article 22 of the Afghan Constitution has emphasised the equality of all people and has outlawed all forms of discrimination among citizens. Article 53 of the Constitution requires the government of Afghanistan to take the necessary measures to ensure rehabilitation, training, and active social participation of persons with disabilities and provide them with medical and financial assistance.", "Under ANDS [“the Afghanistan National Development Strategy”], the government is obligated to provide further assistance to meet the special needs of persons with disabilities, including their inclusion in the community through providing education and job opportunities. No significant progress is visible in this area.", "...", "Thirty years of war in Afghanistan had unfavourable effects and one of these is the rise in the number of persons with disabilities. The Afghan conflict not only physically incapacitated people, but it also had negative implications for the psyche of Afghan public.", "...", "There is no precise assessment of the number and situation of persons with disabilities in Afghanistan and different authorities have presented different statistical data on the number of persons with disabilities. Handicap International estimates that there are 800,000 persons with severe disabilities, however, according to the national disability survey in Afghanistan, out of 25 million Afghan people, 747,500 to 867,100 people have severe disabilities, 17% of which are persons with war disability and 6.8% are victims of mines and other unexploded ordinance (UXO). On an average basis, for every five families, there is a person with a disability.", "...", "Approximately 70% of persons with disabilities aged over 15 are jobless. Disability has had a direct and strong correlation with the rising trend of unemployment.", "...", "Growing insecurity, homelessness, disputes over property, and lack of livelihood are the factors obstructing the return of refugees and the reintegration of returnees and IDPs. Insecurity in many parts of the country have made return to places of origin almost impossible. Several regime changes in the course of the Afghan conflict have given rise to several ownership claims on one single land plot. Many commanders have illegally expropriated lands and distributed them among their soldiers and relatives. Family size increased almost three times during forced migration and their return to their places of origin is obstructed, for their existing lands or houses are too small to accommodate them all. Additionally, many people who fled Afghanistan lacked property and are reluctant to return to their places of origin because there are no livelihood options. Inadequate economic opportunities have made return to one ’ s place of origin either impossible or undesirable. Most people who are unable to return to their places of origin migrate to other cities due to lack of livelihood options and homelessness and therefore join the category of the urban poor. ”", "2. The Afghanistan National Disability Action Plan 2008-2011 (Ministry of Labour, Social Affairs, Martyrs and Disabled, May 2008)", "48. The Afghanistan National Disability Action Plan examined the challenges faced by persons with disabilities in Afghanistan and set national objectives and strategies for the Afghan Government and other stakeholders to help improve the lives of persons with disabilities throughout Afghanistan. It observed, inter alia, the following:", "“Services are not equitably spread across all areas of the country and many people with disabilities lack appropriate care or must travel long distances to access it. For example, physical rehabilitation activities are available in only 80 out of 364 districts in 19 of 34 provinces in Afghanistan. Prior to the completion of the ANDS there was insufficient data available on the socio-economic conditions of people with disabilities. However, it was recognized that people with a disability were among those in the most socio-economically vulnerable situation in Afghanistan.", "...", "For example, the ANDS found that 70 percent of people with a disability aged over 15 are unemployed; 53 percent of males and 97 percent of females. In comparison, 25 percent of men and 94 percent of women without disability are unemployed.”", "D. United States of America Department of State Report", "49. In its 201 1 Country Report on Human Rights Practices – Afghanistan, published in May 2012, the State Department observed:", "“ Continuing internal conflict resulted in civilian deaths, abductions, prisoner abuse, property damage, and the displacement of residents. The security situation remained a problem during the year due to insurgent attacks. According to a 2011 report by UNAMA, civilians continued to bear the brunt of intensified armed conflict as civilian deaths increased by 8 percent during the year compared with 2010.", "The large number of attacks by anti-government elements limited the capability of the central government to protect human rights in many districts, especially in the South. The growth in civilian casualties was due primarily to the armed opposition ’ s indiscriminate use of land mine-like pressure plate improvised explosive devices", "...", "The government cooperated with the UNHCR, the International Organization for Migration (IOM), and other humanitarian organizations in providing protection and assistance to internally displaced persons, refugees, returning refugees, and other persons of concern but was limited by lack of infrastructure and capacity.", "...", "Internally Displaced Persons (IDPs)", "The country continued to experience high levels of internal population movements, triggered by military operations, natural disasters, and irregular labor conditions. Large numbers of refugees returned but were unable to reside safely in their previous homes because of poor service infrastructure in rural areas, and the volatile security situation in some parts of the country.", "At year ’ s end, an estimated 447,547 persons were displaced, according to the UNHCR. Of these, 116,741 persons were displaced prior to December 31, 2002 (referred to as IDPs in protracted displacement). Between January and December, 185,631 persons were displaced due to conflict. The main areas in which displacement originated were Badghis, Farah, Ghor, and Herat in the West and Faryab in the North. The displaced populations largely remained in their regions of origin. The key provinces that received IDPs, in order of the numbers displaced, were Herat, Kandahar, Nangarhar, and Helmand.", "Local governments provided access to land for basic accommodation, while international organizations and the Afghan Red Crescent Society provided shelter, food, and other life-saving aid. However, access to land and rights for returnees and IDPs were hampered by a weak judiciary. Some IDPs in protracted displacement established self-sufficient settlements in the Herat, Kandahar, Helmand, and Jalalabad areas.", "Unverified populations, including IDPs and refugees who returned, were also known to reside alongside urban slum dwellers in unauthorized informal settlements in the larger urban areas of Kabul, Jalalabad, Mazar-e-Sharif, and Herat. These settlements were prone to serious deficiencies in several areas, including health, education, security of tenure, and absence of registration of child births and identity cards.", "Restricted access due to poor security limited the UNHCR ’ s efforts to assess the numbers of displaced persons and made it difficult to provide assistance.", "...", "Persons with Disabilities", "The constitution prohibits any kind of discrimination against citizens and requires the state to assist persons with disabilities and to protect their rights, including the rights to health care and financial protection. The constitution also requires the state to adopt measures to reintegrate and ensure the active participation in society of persons with disabilities. The MoLSAMD [ Ministry of Labor, Social Affairs, Martyrs, and Disabled] drafted and the cabinet approved a five-year National Action Plan on March 16, which directs ministries to provide vocational training, establish empowerment centers, distribute food, build handicapped ramps in some government offices, conduct public awareness programs about the disabled, and take other steps to assist Afghans with disabilities.", "The government and NGOs estimated that there were up to 900,000 mobility ‑ impaired persons, of whom approximately 40,000 were limb amputees. The MoLSAMD stated that it provided financial support to 79,202 individuals with disabilities. The MoLSAMD accorded special treatment to families of those killed in war.", "In the Meshrano Jirga, two of the presidentially appointed seats were reserved for persons with disabilities. ”", "E. Non-governmental Organisations ’ reports", "1. Landmine and Cluster Munition Monitor", "50. In a report entitled “Key Developments since May 2005”, the Landmine and Cluster Munition Monitor reported that:", "“A survey by the Ministry of Labor and Social Affairs and the International Rescue Committee found an estimated 84 percent unemployment rate among people with disabilities.”", "2. Austrian Centre for Country of Origin and Asylum Research and Documentation", "51. In a report entitled “ Country Report Afghanistan. 11th European Country of Origin Information Seminar ( Vienna, 21-22 June 2007) ”, published in November 2007, the Austrian Centre for Country of Origin and Asylum Research and Documentation summarised the presentations made during an expert seminar, including representatives from UNHCR, in June 2007. The report observed that:", "“ In addition to Afghans who are or continue to be in need of international protection, there are certain Afghans currently outside Afghanistan for whom return would not constitute a durable solution and would endanger their physical safety and well-being, given their extreme vulnerability and nature of their special needs. In the context of return to Afghanistan, extremely vulnerable cases can be divided into two broad categories:", "Against this background, there are Afghans for which UNHCR Afghanistan strongly advises that, at least temporarily, solutions be identified in countries of asylum and that exemptions to obligations to return are made on humanitarian grounds. This may be the case for Afghans who fall into the following categories. Groups of concern are (see upcoming UNHCR paper for details):", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "52. The applicant complained that his removal to Afghanistan would violate Article 3 of the Convention, which provides that:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "53. The Government contested that argument.", "A. Admissibility", "54. The Court considers that the applicant ’ s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "( a ) The applicant ’ s submissions", "55. The applicant acknowledged that his account of activities with Hizb ‑ i- Islami in Afghanistan had not been accepted by the domestic authorities, but he pointed out that they had accepted that, in 2006, he had been injured and left disabled with his right leg and penis amputated and his left leg and right hand seriously injured. The applicant also asserted that the domestic authorities had further accepted that he was single, that he had previously worked as a farmer and that he was not educated. The applicant also argued that his evidence relating to his family (that both of his parents had died, that he had no brothers and that he was not in contact with his two married sisters who were living with their own families) had not been explicitly rejected by the Immigration Judge.", "56. Given the above facts, the applicant argued that his return to Afghanistan would violate Article 3 of the Convention in two ways. First, he asserted that disabled persons were at particular risk of violence in the armed conflict in Afghanistan, both because they would be unable to remove themselves from dangerous situations swiftly (as suggested by the AIT ’ s comments in the country guidance determination of GS (Article 15 (c) : Indiscriminate violence) Afghanistan CG [2009] UKAIT 00044 (see paragraphs 28 - 29 above)) and because they would be at greater risk of homelessness and thus more prone to being affected by the indiscriminate violence which occurs on the streets of Afghanistan. He argued that the Immigration Judge had barely considered the impact of this risk upon him and, in any event, had done so without reference to most of the background evidence that he now cited (see paragraphs 41 - 51 above).", "57. Second, the applicant argued that whilst the difficulties faced by persons with disabilities in Afghanistan may not engage Article 3 if they had family support available to them, a person, like the applicant, without close family connections would suffer the full consequences of the discrimination against, and ignorance surrounding, persons with disabilities (see the AIHRC report at paragraph 47 above). He argued that, in the struggle for scarce accommodation and given the length of time that he had been outside of Afghanistan, there was a real risk he would be left seriously disadvantaged and in conditions analogous to those set out in M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 263, 2 1 January 2011. Thus he contended that he would be left living in the street, without resources or access to sanitary facilities, and without any means of providing for his essential needs. He submitted that the domestic authorities had failed to properly consider that, as a victim of an armed conflict without family members, he was plainly a member of a particularly underprivileged and vulnerable population group in need of special protection ( see M.S.S, cited above, § 251 ). In that regard, he asserted that the Immigration Judge ’ s statement that he “would have certain disadvantages greater than others by reason of his disability” but that “he would not be alone ” because persons with such disadvantages were continuing to exist in Afghanistan (see paragraph 19 above) did not begin to properly consider the issue of his vulnerability.", "58. The applicant further argued that his case could be distinguished from N. v. the United Kingdom [GC], no. 26565/05, 27 May 2008 because it did not involve a naturally occurring illness or merely the consequences of a serious medical condition and the lack of sufficient treatment available for it in Afghanistan. He submitted that the shortages of accommodation and welfare arrangements in Afghanistan were not part of the vicissitudes of life but were the legacy of the armed conflicts that had long affected the country.", "59. In that regard, he stated that one of the effects of the lengthy conflict was the rise in the number of persons with disabilities in Afghanistan. He also argued that the armed conflict was deteriorating; that there had been a 20% increase in civilian casualties; and that Nangarhar province, from where the applicant originated, had become a major recipient of internally displaced persons (see the United States 2011 Country Report on Human Rights Practices - Afghanistan at paragraph 49 above). In light of those facts, he argued that there were serious grounds for believing that, as a disabled man, he would be involved in a competition for scarce resources within which he would be ill-equipped to succeed. He argued that, unlike many returnees, due to his disabilities, there was no real chance that he would find work in light of the evidence that the unemployment rate among people with disabilities was extremely high (see the Landmine and Cluster Munition Monitor report at paragraph 50 above).", "60. Furthermore, the applicant argued that if the obligations to respect the inherent dignity of disabled persons which were set out in the Convention on the Rights of Persons with Disabilities (see paragraphs 36 - 40 above) were interpreted to inform the scope of Article 3 of the Convention, there was a real risk that he would face inhuman or degrading treatment upon return to Afghanistan. He submitted that the Afghan Government were unable to ensure access to services for the disabled and that a seminar in which UNHCR had participated had recommended that persons with physically disabilities who lacked family members were one class of person who should be eligible for protection outside the scope of the 1951 Refugee Convention (see paragraph 51 above). Additionally, he argued that UNHCR had confirmed in their December 2010 UNHCR Guidelines that Afghans would not be able to lead a life without undue hardship in areas without social support or family networks (see paragraph 44 above).", "61. Finally, the applicant argued that the Secretary of State ’ s failure to wait for a medical report about the applicant ’ s injuries when making the first instance decision on the applicant ’ s asylum claim in September 2010 (see paragraph 13 above), amounted to a breach of the obligation under Article 3 to conduct a rigorous scrutiny of an individual ’ s claim that his deportation to a third country would expose that individual to treatment prohibited by Article 3 (see, mutatis mutandis, R.C. v. Sweden, no. 41827/07, 9 March 2010 and Jabari v. Turkey, no. 40035/98, § 39, ECHR 2000 ‑ VIII ).", "( b ) The Government ’ s submissions", "62. The Government argued that the applicant had not provided any evidence to support his assertion that, by reason of his disabilities, there were substantial grounds to believe that there was a real risk that he would be subjected to treatment contrary to Article 3 in the event of his return to Afghanistan.", "63. In that regard, they contended that there was no support to be found in any of the country guidance cases (see paragraphs 27 - 32 above) or the most recent background evidence from UNHCR and UNAMA (see paragraphs 41 - 45 above) to suggest that disabled persons were at an enhanced risk of ill- treatment from indiscriminate violence.", "64. They further argued that, whilst in the country guidance case of GS (see paragraphs 28 - 29 above) the AIT had speculatively contemplated the possibility that there might be a sufficient threat to disabled persons to engage the provisions of the Qualification Direction (see paragraphs 33 - 34 above), there was in reality no support for the suggestion that disabled persons were more likely to be killed or wounded by a suicide bomber if they were less able than others to run away from such an attacker. Furthermore, they submitted that there was no evidence that snipers were targeting civilians; that disabled person were less likely to be able to evade such attacks; or that disabled persons were being killed by reason of any relative inability to avoid the effects of violence.", "65. In response to the applicant ’ s claim (see paragraph 57 above) that the conditions that he would face in Afghanistan were analogous to those set out in M.S.S v. Belgium and Greece, cited above, the Government argued that the case had no relevance to the present application. They asserted that, critical to the Court ’ s conclusions in M.S.S. had been the failure of the Greek authorities to make available the required conditions for the reception of an asylum seeker. The Court ’ s findings had been based on the positive obligations (derived from the European Reception Directive and their own legislation) of the Greek authorities to provide accommodation and decent material conditions to impoverished asylum seekers and, in that regard, the Court had attached considerable importance to the applicant ’ s status as an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection. To the contrary, the Government argued that, so far as the applicant relied upon the general provision made for persons with disabilities in Afghanistan and the difficulties faced by those without family support there, the applicable standard was analogous to that applied in N. v. the United Kingdom, cited above. They therefore argued that, where the feared consequences of return were as a result of claimed deficiencies in health and social care, very exceptional circumstances would need to be established.", "66. The Government refuted the applicant ’ s submission (see paragraph 55 above) that the Immigration Judge had accepted that the applicant had no contact with his family members in Afghanistan. They noted that the Immigration Judge had explicitly accepted that the applicant was an Afghan national who had come from Nangarhar province and had spent the early years of his life as a farmer; that he was single; and that he had suffered severe injuries. However, the Immigration Judge had stated that he could not be satisfied as to any other details of the applicant ’ s case (see paragraph 17 above) and whilst the Government were prepared to accept that both of the applicant ’ s parents were now deceased, they were not prepared to accept that he was not in contact with his remaining family members in Afghanistan. In that regard, the Government noted that the applicant had failed to submit any evidence to support that claim. In any event, there was no reason why he could not make contact with his sisters upon his return to Afghanistan.", "67. The Government reiterated the Immigration Judge ’ s findings (see paragraphs 19 - 20 above) that there was no reason why the applicant would not continue to receive the assistance in Afghanistan that he had apparently received for three to four years there after he had incurred his injuries and before he had travelled to the United Kingdom. Furthermore, in view of the numbers of disabled people in Afghanistan and the lack of supporting evidence demonstrating that those people were living in a state of extreme degrading or inhuman conditions by virtue of government inaction, they argued that there remained no substantial grounds to believe that the applicant would be at real risk of treatment contrary to Article 3 of the Convention, particularly in light of the fact that the applicant had family in Afghanistan.", "68. Finally, in response to the applicant ’ s claims regarding the consideration of his asylum claim in the absence of a medical report on his injuries (see paragraph 61 above), the Government pointed out that no medical report had ever been produced by the applicant at any stage throughout the proceedings whether on appeal before the First-tier Tribunal or in the course of the present application before the Court. The Government further noted that the claimed relevance of such a medical report was to establish whether or not the applicant ’ s injuries were consistent with his account of how he had received them and that, in any event, the Immigration Judge at the First-tier Tribunal had accepted the applicant ’ s claims in that regard without a medical report. The Government therefore argued that the applicant had failed to explain what further relevance a medical report might have had to the applicant ’ s claims.", "2. The Court ’ s assessment", "(a) General principles regarding Article 3 and expulsion", "69. It is well-established that expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country. Article 3 is absolute and it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion ( Saadi v. Italy [GC], no. 37201/06, §§ 125 and 138, ECHR 2008-...).", "70. The assessment whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assess the conditions in the receiving country against the standards of Article 3 of the Convention ( Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). These standards imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case ( Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). Owing to the absolute character of the right guaranteed, Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection ( H.L.R. v. France, judgment of 29 April 1997, Reports 1997-III, § 40).", "71. The assessment of the existence of a real risk must necessarily be a rigorous one (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 96; and Saadi v. Italy, cited above, § 128). It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005). The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker ’ s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, Collins and Akasiebie v. Sweden (dec.), no. 23944/05, 8 March 2007 and R.C. v. Sweden, no. 41827/07, 9 March 2010).", "72. In order to determine whether there is a real risk of ill-treatment in this case, the Court must examine the foreseeable consequences of sending the applicant to Afghanistan, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 108 in fine, Series A no. 215). If an applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Saadi v. Italy, cited above, § 133). A full and ex nunc assessment is called for as the situation in a country of destination may change over the course of time. Even though the historical position is of interest insofar as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive and it is therefore necessary to take into account information that has come to light since the final decision taken by the domestic authorities (see Salah Sheekh v. the Netherlands, no. 1948/04, § 136, 11 January 2007 ).", "73. The Court has held that the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3 (see Vilvarajah and Others v. the United Kingdom, cited above, § 111, and Saadi v. Italy, cited above, § 131) and that, where the sources available to it describe a general situation, an applicant ’ s specific allegations in a particular case require corroboration by other evidence (see Mamatkulov and Askarov v. Turkey, cited above, § 73; and Saadi v. Italy, cited above, § 131). The Court has never excluded the possibility that a general situation of violence in a country of destination will be of a sufficient level of intensity as to entail that any removal to it would necessarily breach Article 3 of the Convention. Nevertheless, the Court would adopt such an approach only in the most extreme cases of general violence, where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return (see NA. v. the United Kingdom, no. 25904/07, § 115, 17 July 2008, and Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 218 and § 248, 28 June 2011 ).", "(b) The Court ’ s case-law in respect of Article 3 and humanitarian conditions", "74. In Salah Sheekh v. the Netherlands, cited above, the Court held that socio-economic and humanitarian conditions in a country of return did not necessarily have a bearing, and certainly not a decisive bearing, on the question of whether the persons concerned would face a real risk of ill ‑ treatment within the meaning of Article 3 in those areas ( § 141).", "75. However, in N. v. the United Kingdom, cited above, the Court held that although the Convention was essentially directed at the protection of civil and political rights, the fundamental importance of Article 3 meant that it was necessary for the Court to retain a degree of flexibility to prevent expulsion in very exceptional cases. Noting that Article 3 did not place an obligation on Contracting States to alleviate disparities in the availability of medical treatment in different States through the provision of free and unlimited health care to all aliens without a right to stay within their jurisdictions, the Court nevertheless held that humanitarian conditions would give rise to a breach of Article 3 of the Convention in very exceptional cases where the humanitarian grounds against removal were compelling ( § 42).", "76. In M.S.S. v. Belgium and Greece, cited above, the Court stated that it had not excluded the possibility that the responsibility of the State under Article 3 might be engaged in respect of treatment where an applicant, who was wholly dependent on State support, found himself faced with official indifference in a situation of serious deprivation or want incompatible with human dignity ( § 253). In that case, the applicant, an asylum seeker, and as such “ a member of a particularly underprivileged and vulnerable population group in need of special protection ” had spent months living in a state of the most extreme poverty, unable to cater for his most basic needs: food, hygiene and a place to live. Added to that, the Court noted the applicant ’ s ever-present fear of being attacked and robbed and the total lack of any likelihood of his situation improving ( § 254). It held that the conditions in which the applicant was living reached the Article 3 threshold and found Greece to be responsible for the breach of that Article due to the inaction of the Greek authorities despite their positive obligations under both the European Reception Directive and domestic legislation regarding the provision of accommodation and decent material conditions to asylum seekers ( § 264). The Court also found Belgium to be in breach of Article 3 because, inter alia, it had transferred the applicant to Greece and thus knowingly exposed him to living conditions which amounted to degrading treatment ( § 367).", "77. In Sufi and Elmi v. the United Kingdom, cited above, the Court, in considering, inter alia, whether or not the applicants would be at risk of ill ‑ treatment on account of the dire humanitarian conditions in refugee camps in southern and central Somalia, applied the test adopted in M.S.S, which required it to have regard to an applicant ’ s ability to cater for his most basic needs, such as food, hygiene and shelter, his vulnerability to ill ‑ treatment and the prospect of his situation improving within a reasonable time-frame ( §§ 282-283). In coming to that decision, the Court had regard to the fact that the humanitarian crisis in Somalia was predominately due to the direct and indirect actions of the parties of the conflict; noted that all of the evidence indicated that the parties to the conflict had employed indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population; and considered that the crisis had been greatly exacerbated by al-Shabaab ’ s refusal to permit international aid agencies to operate in the areas under its control, despite the fact that between a third and a half of all Somalis were living in a situation of serious deprivation.", "( c ) Application to the facts of the case", "78. The Court observes at the outset that, although the applicant applied for, and was refused, asylum in the United Kingdom, he has not complained before the Court that his removal to Afghanistan would put him at risk of deliberate ill-treatment from any party, either on account of his past activities with Hizb-i-Islami or for any other reason.", "79. The Court further observes that the applicant has not claimed that the levels of violence in Afghanistan are such that any removal there would necessarily breach Article 3 of the Convention. Indeed, the applicant did not dispute the findings of the AIT ’ s previous country guidance determination GS (set out at paragraphs 28 - 29 above) that there was not in Afghanistan such a high level of indiscriminate violence that substantial grounds existed for believing that a civilian would, solely by being present there, face a real risk which threatened the civilian ’ s life or person.", "80. Instead the applicant alleged that he would be at risk in Afghanistan on two grounds linked to his disabilities. First, he asserted that he would be particularly vulnerable to violence and at increased risk of further injury or death in the ongoing armed conflict in Afghanistan. Second, he contended that, due to his lack of family support in Afghanistan, he would face living conditions and discrimination there which would breach Article 3 of the Convention.", "81. Before examining these grounds, it is necessary both to address the applicant ’ s complaints regarding the domestic authorities ’ failure to wait for a medical report (see paragraph 61 above) and to clarify the factual basis for his complaint.", "82. First, in respect of his complaint that the domestic authorities failed to await a medical report, the Court is unable to find that, in the circumstances of the present case, such a failure demonstrates a breach of Article 3 of the Convention. In that regard, besides the applicant ’ s failure to have ever submitted a medical report in any event, the Court notes that, during the domestic proceedings, the First-tier Tribunal accepted both the extent of the applicant ’ s injuries and the manner in which the applicant claimed that they had been caused (see paragraph 17 above). Thus, a medical report was not required in his case for the domestic authorities to have complied with their duty to ascertain all relevant facts in the applicant ’ s case (see R.C. v. Sweden, no. 41827/07, § 53, 9 March 2010 ). Second, in respect of the facts of the applicant ’ s claim, the Court notes that it is not disputed that the applicant is disabled and that his lower right leg and penis have been amputated and that his left leg and right hand have been seriously injured. Furthermore, the parties agreed that the applicant is a single man of Pashtun ethnicity, that both of his parents are deceased, that he had two sisters in Afghanistan and that he spent the early years of his life as a farmer in Nangarhar province.", "83. However, the parties disputed whether any support would be available to the applicant in Afghanistan. The Government maintained that the applicant ’ s claim not to have any contact with his sisters in Afghanistan had been implicitly rejected by the Immigration Judge and that he had failed to submit any evidence to support that claim. In any event, he had not provided any reason why he could not make contact with his sisters upon his return to Afghanistan. By contrast, the applicant did not accept that this part of his claim had been rejected by the Immigration Judge. He continued to claim, as he had done the domestic proceedings, that there was no one available to care for him in Afghanistan and that, although he had two sisters in the country, they were both married and living with their own families. In any event, he no longer had any contact with either of them.", "The Court considers it unnecessary to determine what the Immigration Judge ’ s findings in respect of the applicant ’ s sisters were and, in particular, whether or not the Immigration Judge implicitly rejected the applicant ’ s assertions in this regard. The fact is that, neither before the national authorities nor before the Court, has the applicant given any reason why, if he is returned to Afghanistan, he would not be able to make contact with them and seek their support.", "84. The Court will therefore examine each of the applicant ’ s grounds of complaint on the basis that he will be returning, as a disabled man with an amputated lower right leg and a false limb, to Afghanistan, where members of his family continue to reside.", "i. Enhanced risk of violence", "85. In relation to the applicant ’ s first ground that he would be at greater risk of violence in Afghanistan due to his disability, the Court notes that the applicant has relied significantly upon the brief comments made by the AIT in GS (set out at paragraphs 28 - 29 above). In that case, the AIT, when explaining that there may be categories of people who may be able to establish an enhanced risk of indiscriminate violence in Afghanistan, gave as possible examples both those who would be perceived to be “ collaborators ” and disabled persons. However, the Court does not agree that the AIT ’ s comments alone can give substantive support to the applicant ’ s claim. Indeed, the AIT clarified in the same paragraph of that determination that they were unable to give a list of risk categories or to state that any particular occupation or status would put a person into such a category in view of the “paucity of the evidence” before them. To the contrary, the AIT merely recorded that there “may be such categories” dependent upon the evidence available. The AIT emphasised that their comments should not be taken to indicate that the disabled were members of enhanced risk groups, without proof to that effect", "86. The Court considers it to be significant that the applicant has failed to adduce any additional substantive evidence to support his claim that disabled persons are per se at greater risk of violence, as opposed to other difficulties such as discrimination and poor humanitarian conditions, than the general Afghan population. The evidence from, inter alia, UNHCR, UNAMA, the UNCESCR, the AIHRC, and the United States of America State Department (see paragraphs 41 - 49 above) makes no reference to disabled persons being at greater risk of violence, ill-treatment or attacks in Afghanistan.", "87. In the absence of any contrary evidence, the Court therefore concludes that this claim has to be considered to be to a large extent speculative and does not accept that the applicant has demonstrated that, as a result of his disabilities, he would be subjected to an enhanced risk of indiscriminate violence in Afghanistan such as to engage Article 3 of the Convention.", "ii. Living conditions", "88. The applicant argued that the circumstances that he will face in Afghanistan will amount to a breach of Article 3 of the Convention as a result of the poor provision for and ignorance surrounding persons with disabilities there. He argued that his case could be distinguished from N. v. the United Kingdom, cited above, because it did not involve a naturally occurring illness or merely the consequences of the lack of sufficient treatment available in Afghanistan. He argued that the Court should consider his case in light of M.S.S. v. Belgium and Greece, cited above, and his inability to cater for his basic needs to Afghanistan.", "89. The Court finds that the principles of N. v. the United Kingdom should apply to the circumstances of the present case for the following reasons. First, the Court recalls that N. concerned the removal of an HIV ‑ positive applicant to Uganda, where her lifespan was likely to be reduced on account of the fact that the treatment facilities there were inferior to those available in the United Kingdom. In reaching its conclusions, the Court noted that the alleged future harm would emanate not from the intentional acts or omission of public authorities or non-State bodies but from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country. The Court also stated that Article 3 did not place an obligation on the Contracting State to alleviate disparities in the availability of medical treatment between the Contracting State and the country of origin through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction ( ibid, § 44). The Court acknowledges that, in the present case, the applicant ’ s disability cannot be considered to be a “naturally” occurring illness and does not require medical treatment. Nevertheless, it is considered to be significant that in both scenarios the future harm would emanate from a lack of sufficient resources to provide either medical treatment or welfare provision rather than the intentional acts or omissions of the authorities of the receiving State.", "90. Second, the Court considers that the present case can be distinguished from M.S.S. In that case, a fellow Contracting State, Greece, was found to be in violation of Article 3 of the Convention through its own inaction and its failure to comply with its positive obligations under both European and domestic legislation to provide reception facilities to asylum seekers. Central to the Court ’ s conclusion was its finding that the destitution of which the applicant in that case complained was linked to his status as an asylum seeker and to the fact that his asylum application had not yet been examined by the Greek authorities. The Court was also of the opinion that, had they examined the applicant ’ s asylum request promptly, the Greek authorities could have substantially alleviated his suffering. (see paragraph 262 of the judgment). By contrast, the present application concerns the living conditions and humanitarian situation in Afghanistan, a non ‑ Contracting State, which has no such similar positive obligations under European legislation and cannot be held accountable under the Convention for failures to provide adequate welfare assistance to persons with disabilities. In that regard, it is recalled that the Convention does not purport to be a means of requiring Contracting States to impose Convention standards on other States (see, as a recent authority, Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 141, 7 July 2011).", "91. Third, although in Sufi and Elmi v. the United Kingdom, cited above, the Court followed the approach set out in M.S.S., this was because of the exceptional and extreme conditions prevailing in south and central Somalia. In particular, there was clear and extensive evidence before the Court that the humanitarian crisis in Somalia was predominately due to the direct and indirect actions of all parties to the conflict who had employed indiscriminate methods of warfare and had refused to permit international aid agencies to operate ( paragraph 282 of the Sufi and Elmi judgment ). On the current evidence available, the Court is not able to conclude that the situation in Afghanistan, albeit very serious as a result of ongoing conflict, is comparable to that of south and central Somalia. First, unlike Somalia, which has been without a functioning central Government since 1991, Afghanistan has a functioning central Government and functioning infrastructures remain in place. Second, Afghanistan, and in particular Kabul to where the applicant will be returned, remains under Government control, unlike the majority of south and central Somalia, which, since 2008, has been under the control of Islamic insurgents. Third, although UNHCR has observed that the humanitarian space in Afghanistan is declining in some areas as a result of the continuing instability (see paragraph 43 above), there remains a significant presence of international aid agencies in Afghanistan, unlike in Somalia where international aid agencies were refused permission to operate in multiple areas. Fourth, even though the difficulties and inadequacies in the provision for persons with disabilities in Afghanistan cannot be understated, it cannot be said that such problems are as a result of the deliberate actions or omissions of the Afghan authorities rather than attributable to a lack of resources. Indeed, the evidence suggests that the Afghan authorities are taking, albeit small, steps to improve provision for disabled persons by, for example, the National Disability Action Plan 2008-2011 (see paragraph 48 above), and the provision of financial support by the Ministry of Labour, Social Affairs, Martyrs, and the Disabled to 80,000 disabled persons in Afghanistan (see paragraph 49 above). The Court does not accept that the report of the Austrian Centre for Country of Origin and Asylum Research and Documentation (see above at paragraph 51 ) lends support to the applicant ’ s claim because that report was published in 2007 and the later December 2010 UNHCR Guidelines make no similar recommendations in relation to the return of disabled persons to Afghanistan.", "92. The Court therefore considers that, in the circumstances of the present case where the problems facing the applicant would be largely as a result of inadequate social provisions through a want of resources, the approach adopted by the Court in N. v. the United Kingdom, cited above, is more appropriate. The Court will therefore need to determine whether or not the applicant ’ s case is a very exceptional one where the humanitarian grounds against removal are compelling.", "93. Whilst full account must be taken of the significant hardship facing persons with disabilities in Afghanistan, including discrimination, a lack of employment opportunities and a scarcity of services (see paragraphs 45 - 51 above), it is of some relevance that the present applicant has family members who continue to live in Afghanistan. The applicant himself acknowledged in his submissions to the Court (see paragraph 57 above ) that the difficulties facing persons with disabilities in Afghanistan might not engage Article 3 if they had family support available to them. For the reasons set out above at paragraphs 83 - 84 the Court is unable to conclude that the applicant would not be able to contact his family members upon return to Afghanistan or that they would not provide him with some level of support or assistance upon arrival. In this regard, the Court is not therefore able to accept the applicant ’ s claim that he will be returning to Afghanistan and left destitute by reason of a total lack of support in that country.", "It is, in any event, of greater importance to the Court ’ s consideration of the applicant ’ s Article 3 complaint that the applicant remained in Afghanistan after he received his injuries in 2006 for four years until 2010 and was supported throughout that period, during which he also received medical treatment for his injuries. On the evidence before it, the Court is unable to conclude that the applicant ’ s disabilities have worsened since his departure from Afghanistan. Nor, on the general information before the Court, can it be found that the circumstances that would confront the applicant on return to Afghanistan would, to a determinative degree, be worse than those which he faced during that four - year period. Likewise, although the quality of the applicant ’ s life, already severely diminished by his disabled condition, will undoubtedly be negatively affected if he is removed from the United Kingdom to Afghanistan, that fact alone cannot be decisive (see N. v. the United Kingdom, cited above, §§ 50 and 51).", "94. Finally, in addressing the applicant ’ s submission that, in circumstances such as those in the present case, the United Nations Convention of the Rights of Persons with Disabilities has to be read as informing the scope to be given to Article 3, the Court is mindful of the principle that the Convention does not apply in a vacuum but must be interpreted in harmony with the general principles of international law (see, mutatis mutandis, inter alia, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, §§ 131-132, ECHR 2010 ). Nevertheless, for the foregoing reasons, even interpreting Article 3 of the Convention in harmony with the United Nations Convention of the Rights of Persons with Disabilities, the Court is unable to conclude that the high threshold set by Article 3 has been met in the applicant ’ s case.", "95. In conclusion, the applicant ’ s case does not disclose very exceptional circumstances as referred to in the applicable case-law ( N. v. the United Kingdom, cited above ). Accordingly, the implementation of the decision to remove him to Afghanistan would not give rise to a violation of Article 3 of the Convention.", "II. RULE 39 OF THE RULES OF COURT", "96. In accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.", "97. The Court considers it appropriate that the indication made to the Government under Rule 39 of the Rules of Court (see above § 4 ) should continue in force until the present judgment becomes final or until the Panel of the Grand Chamber of the Court accepts any request by one or both of the parties to refer the case to the Grand Chamber under Article 43 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. The procedural background", "12. The applicant was born in 1974 and is currently detained in Broadmoor High Security Psychiatric Hospital.", "13. The applicant has been indicted in the United States of America as a co-conspirator in respect of a conspiracy to establish a jihad training camp in Bly, Oregon.", "14. On 7 August 2005 the applicant was arrested in the United Kingdom on the basis of an arrest warrant issued under section 73 of the Extradition Act 2003 following a request for his provisional arrest by the United States.", "15. The Senior District Judge gave his decision in the applicant’s case on 5 January 2006. He concluded that none of the bars to extradition applied and sent the case to the Secretary of State for his decision as to whether the applicant should be extradited.", "16. On 1 March 2006 the Secretary of State ordered his extradition. The applicant appealed to the High Court on the ground that his extradition would not be compatible with Article 3 of the Convention because he could be detained in a maximum security facility such as ADX Florence and subject to special administrative measures, including solitary confinement.", "17. The applicant’s appeal was heard together with that of Mr Babar Ahmad. In its judgment of 30 November 2006 the High Court rejected the appeals. The High Court found that, according to the case-law of this Court, solitary confinement did not in itself constitute inhuman or degrading treatment. Applying that approach, the evidence before it – which included an affidavit from a United States’ Department of Justice official outlining the operation of special administrative measures – did not “begin to establish a concrete case under Article 3”.", "18. The applicant and Mr Babar Ahmad applied for permission to appeal to the House of Lords. This was refused by the House of Lords on 6 June 2007.", "B. The applicant’s mental health", "19. On 27 March 2008 the applicant was transferred to Broadmoor Hospital from HMP Long Lartin because he met the criteria for detention under the United Kingdom’s mental health legislation.", "20. On 11 November 2011 the First-Tier Tribunal (Health, Education and Social Care Chamber) Mental Health considered the applicant’s case and concluded, having considered the evidence from the applicant’s clinical care team, that he was suffering from paranoid schizophrenia which made it appropriate for him to continue to be liable to detention in a medical hospital for his own health and safety.", "21. In his statement to the Tribunal, Dr A. Payne, a Consultant Forensic Psychiatrist, indicated that:", "“[The applicant’s] insight into his illness is limited and if returned to prison he would be exposed to significant stress given the conditions of his detention, the uncertainty of his case and his potential extradition and lengthy incarceration in conditions of solitary confinement. His compliance with medication would be uncertain, particularly in the medium to long term. These factors would be likely to lead to a relapse with deterioration in his mental health and the risk of a consequent deterioration in his physical health due to poor fluid and food intake. I am therefore of the opinion that his mental disorder is of a nature that requires his detention in hospital for medical treatment and that such treatment is necessary for his own health and safety. I do not believe that there is sufficient evidence available to justify his detention on the grounds of his risk to others.”", "22. Dr Claire Dillon, a Consultant Forensic Psychiatrist, indicated in a report dated 12 April 2012, that:", "“Mr Aswat suffers from an enduring mental disorder, namely paranoid schizophrenia, which has been characterised by auditory hallucinations, thought disorder, delusions of reference, grandeur and guarded and suspicious behaviour. Mr Aswat’s condition is currently well controlled on amilsulpride (anti-psychotic medication). However, he has only partial insight into his illness and he would be likely to relapse if he ceased taking his medication.", "Mr Aswat has undertaken psychological work to enhance his understanding of his mental illness and he is able to recognise the need for professional support to manage this. In view of the lack of convictions for violent offences, Mr Aswat has not undertaken any offence-related work whilst at Broadmoor, as the decision of the European Court of Human Rights was awaited. Mr Aswat engages in occupational and vocational activities within the hospital and these, along with his attendance at the Mosque, have helped to prevent any significant deterioration in his mood.”", "C. Expected treatment on extradition", "23. On 8 May 2012 the United States’ Department of Justice indicated that upon his arrival in the United States, the applicant would have a full opportunity to argue that he lacked mental capacity to stand trial there. If he did so, the trial judge would have to assess his competency before the trial could proceed. In doing so, he would rely on the reports of medical professionals and on the applicant’s full medical records, including – presumably – those relating to his transfer to Broadmoor.", "24. A competency evaluation could be appealed to the United States’ Court of Appeals for the Second Circuit. The Second Circuit would need to affirm the district court’s competency determination before the trial could proceed.", "25. Prior to and pending trial the applicant would not be housed in ADX Florence as this institution did not house inmates who were unsentenced and pending trial.", "26. If the applicant were to stand trial and be convicted of an offence, then following sentencing the Federal Bureau of Prisons would be responsible for deciding which institution he should be housed in. Medical, psychological and psychiatric concerns would be considered by the designation team before a determination of housing could be made. If a hearing was warranted, it would be open to the applicant to present evidence and make oral statements as to why he should not be designated to ADX Florence in light of his mental health.", "27. With regard to the system and standard of mental health care available within the institutions, the Department of Justice indicated that:", "“Mental health services range from inpatient psychiatric treatment, to residential treatment programs, to outpatient psychological and psychiatric services. As in the community, the vast majority of mental health care in the Bureau is provided on an outpatient basis at the local institution level by the Psychology Services Department working in collaboration with either a full-time or consultant psychiatrist.", "Mental health services in the Bureau are delivered by psychiatrists and doctoral ‑ level psychologists. This hiring standard ensures mental health providers in the Bureau have a minimum of four years of graduate level, supervised training in the treatment of mental illnesses.", "... ... ...", "All Bureau facilities are equipped to manage mentally ill inmates, including those with schizophrenia, as each institution employs doctoral-level psychologists and has access to psychiatric services. Many inmates with mental illnesses, including schizophrenia, are managed successfully in mainline institutions through the treatments of choice which include medication, clinical case management, and cognitive-behavioural interventions. While a diagnosis of schizophrenia would not preclude a designation to a maximum security facility, most inmates with this diagnosis are managed and treated in other facilities. Conditions of confinement are largely determined by security needs and would be modified based on mental illness only if the inmate’s mental status warranted such a change (e.g., if his mental status deteriorated).", "The Bureau provides a structured living environment for inmates with significant staff oversight. This environment allows for prompt identification of mental health concerns, provides immediate access to mental health professionals, and facilitates compliance with mental health treatment. All inmates confined in the Bureau are evaluated by Health Services’ staff within 24 hours of arrival. At that time, their medication regimens are reviewed and continued, as appropriate. Thus, any mental health medications the inmate may be taking would be noted and continued as appropriate, upon admission. Additionally, an inmate’s mental health status is evaluated to determine whether there is any imminent risk of self-harm or suicide and whether he or she is stable and appropriate for placement in the designated setting. If Health Services’ staff has any concerns at the time of admission, a doctoral level psychologist will be called to consult.", "In all cases, regardless of the outcome of the initial evaluation performed by Health Services’ staff, all new designees are seen within 14 days for evaluation by a doctoral level psychologist. This evaluation focuses on collecting a mental health history, as well as identifying any current symptoms and determining treatment needs. All inmates are classified based on their mental health treatment needs to ensure appropriate placement, treatment, and follow-up services to be provided.", "Psychologists are a visible presence in the institution – in the cafeteria, on the compound, and in the housing units. In addition, a psychologist is on-call 24 hours a day, 7 days a week, with a prompt response to the institution in the event of a mental health crisis. All inmates have direct access to psychological services from doctoral level psychologists. Ordinarily, these services include: crisis intervention, ongoing clinical case management of mental illnesses, brief counselling focused on a specific issue or problem, individual psychotherapy, and psycho-educational and/or therapeutic groups. Inmates may access these services through self-referral or may be referred by institution staff. In addition, all inmates who need psychotropic medication are seen regularly by a psychiatrist.", "On occasion, despite best efforts to work with mentally ill inmates at the local institution level, more intensive mental health services are required. In these cases, an acutely mentally ill inmate is typically referred to one of the Bureau’s Psychiatric Referral Centres for acute psychiatric care. Under Bureau policy, acute psychiatric care is defined as care, including but not limited to, crisis intervention for inmates who are persistently suicidal, homicidal, or unable to function in the institution without creating a dangerous situation due to their mental illness. These inpatient services are generally brief, with the goal of returning the inmate to a level of functioning that would allow him or her to return to the designated institution.", "Alternatively, seriously, but not acutely, mentally ill inmates may be placed in one of the Bureau’s residential mental health treatment programs, which provide long ‑ term, intensive mental health care. The Bureau is committed to providing high ‑ quality, evidence-based residential treatment programs to all inmates in need of these services. The BOP’s Psychology Treatment Programs (PTPs) are designed using the most recent research- and evidence-based practices. These practices lead to a reduction in inmate misconduct, mental illness and behavioural disorders; substance abuse, relapse, and recidivism; and criminal activity. These practices also lead to an increase in the level of the inmate’s stake in societal norms and in standardized community transition treatment programs. Transition treatment increases the likelihood of treatment success and increases the public’s health and safety. Inmates are referred to these programs based on need and appropriateness of the program to the inmate’s security level.", "Decisions concerning the appropriateness of transfer to a Psychiatric Referral Centre are based on the best judgment of the treating clinicians (i.e., psychologist, staff psychiatrist, or consulting psychiatrist) and are typically dependent upon such factors as the severity of the mental illness, the specific characteristics and resources of the institution, and relevant patient variables. Inmates who are disruptive to the orderly running of the institution, but who are not mentally ill, are not generally appropriate referrals to a Psychiatric Referral Centre.", "In the case of schizophrenia, the treatment of choice is medication, clinical case management, and cognitive behavioural interventions, with inpatient admissions only as necessary to manage brief psychiatric emergencies, should they arise. The Bureau attempts to manage and treat the mental illnesses of all offenders in the least restrictive environment appropriate to their mental health and security needs. Therefore, an inmate’s security level would only be adjusted due to schizophrenia should behavioural issues or a psychiatric emergency warrant such an adjustment. The Bureau currently incarcerates many inmates diagnosed with schizophrenia, the majority of whom is managed and treated successfully in general population settings.”", "28. The Department of Justice further indicated that if the applicant were to be detained in ADX Florence, his detention would be subject to three types of review: classification, program review, and a progress report. The Department described these reviews as follows:", "“Classification and Program Review refer to the procedure whereby an inmate’s case is formally reviewed by the Unit Team. These meetings are generally referred to as \"team\" and the inmate is present. Team meetings are intended to give staff and inmates the opportunity to discuss issues in an open format. This is the inmate’s opportunity for individual attention and he or she should be encouraged to ask questions and discuss concerns.", "Classification is the initial team meeting whereby a careful review of the case and inmate’s history are discussed and relevant programs are recommended. The purpose of the meeting is to define clearly for the inmate: (1) sentence information, including financial obligations; (2) educational programs; (3) security/custody levels; (4) release plans; and (5) work assignments. These programs reflect the needs of the inmate and are stated in measurable terms. Generally, initial classification occurs within four weeks of an inmate’s arrival at his designated institution.", "Subsequent team meetings are referred to as Program Reviews. These meetings are held at least once every six months (every three months for inmates with less than one year remaining to serve) and are conducted to monitor and evaluate the inmate’s progress in all program areas. Program participation is discussed in relation to the schedule developed at initial classification. New and/or revised goals are developed as necessary. A progress report is the principal document used by the Unit Team to evaluate the behaviour and activities of inmates. The progress report is a detailed, comprehensive account of an inmate’s case history, prepared by the Case Manager at prescribed intervals during the inmate’s confinement. Generally, the Case Manager composes the progress report with input from other unit staff, work detail supervisors, and education instructors. The progress report reflects the inmate’s past status, assesses his current status, and offers an indication of anticipated accomplishments. This could include the inmate’s continued participation in a program; and what he plans to do at the completion of the program, or if he plans to use what he has learned upon his release. Information is also provided on the inmate’s relationship with others (both staff and inmates), particularly with respect to attitude, punctuality, etc. A progress report is required, at a minimum, once every three years. At the ADX, the inmates are provided with a copy of the most current progress report. Upon request, an inmate may read and receive a copy of any progress report retained in the inmate’s central file.", "An ADX inmate’s status is also reviewed under Institution Supplement FLM 5321.07(1), General Population and Step-Down Unit Operations. In addition, Mr. Aswat would have access to the Bureau’s Administrative Remedy Program, which is set forth in Program Statement 1330.16, Administrative Remedy Program, and, as with any inmate of the ADX, he would be able to seek review of any issue relating to their confinement before the United States District Courts. All of these procedures have been described in detail before and are not repeated here.”", "29. The Department further indicated that if designated to ADX Florence the applicant’s mental condition would be subject to regular review. Inmates designated to ADX Florence underwent a psychological intake evaluation upon arrival and could, at that time, be referred to the mental health chronic care clinic, which is an outpatient clinic with services provided by a psychiatrist. Such an inmate would be seen at least every six months by the psychiatrist, but could request to be seen more frequently. In addition, he or she could receive psychological services monthly, weekly or daily (inpatient) based upon their classification, and more frequently should a crisis situation arise.", "30. In Babar Ahmad v. the United Kingdom the Court found that if convicted the applicant would face a maximum penalty of thirty-five years’ imprisonment. None of the counts imposed a mandatory minimum sentence.", "III. THE COURT’S FINDINGS IN BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM (CITED ABOVE)", "32. In Babar Ahmad the Court began by re-affirming its statement in Chahal v. the United Kingdom, 15 November 1996, § 81, Reports of Judgments and Decisions 1996 ‑ V that there was no room under Article 3 for any balancing of the risk of ill-treatment on return against the danger that an applicant posed in the Contracting State. Moreover, it found that this conclusion applied equally to extradition and to all other types of removal from the territory of a Contracting State and should apply without distinction between the various forms of ill-treatment prescribed by Article 3 (§§ 166 – 176). However, the Court underlined that the absolute nature of Article 3 did not mean that any form of ill-treatment would act as a bar to removal from a Contracting State; on the contrary, treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity required for there to be a violation of Article 3 in an expulsion or extradition case (§ 177).", "33. With regard to the facts of the case, the Government accepted that there was a real risk that the first, third, fifth and sixth applicants would be detained at ADX Florence if convicted and the Court proceeded on that basis. It found that the physical conditions there – that is, the size of the cells, the availability of lighting and appropriate sanitary facilities and so on – met the requirements of Article 3 (§ 219). Moreover, the Court did not accept that the applicants would be detained at ADX Florence simply on account of their conviction for terrorism offences. Instead, it was clear to the Court that the Federal Bureau of Prisons would apply accessible and rational criteria, and placement was accompanied by a high degree of involvement of senior officials within the Bureau who were external to the inmate’s current institution. Both this fact and the requirement that a hearing be held prior to transfer provided an appropriate measure of procedural protection. Even if the transfer process were unsatisfactory, there would be recourse to the Bureau’s administrative remedy programme and the federal courts to cure any defects in the process (§ 220).", "34. Moreover, the Court further held that if the applicants were convicted the United States’ authorities would be justified in considering them to pose a significant security risk and strictly limiting their ability to communicate with the outside world. In any case, the Court found that while the regime in the General Population Unit and the Special Security Unit at ADX Florence were highly restrictive and aimed to prevent all physical contact between an inmate and others, that did not mean that inmates were kept in complete sensory isolation or total social isolation. Although confined to their cells for much of the time, a great deal of in-cell stimulation was provided through television and radio, newspapers, books, crafts and educational programming. Inmates were also permitted regular telephone calls and social visits and even those under special administrative measures were permitted to correspond with their families. Furthermore, the Court found that applicants could talk to each other through the ventilation system and during recreation periods they could communicate without impediment. In any case, the Court observed that the figures showed that there would be a real possibility for the applicants to gain entry to step down or special security unit programs. Consequently, the Court concluded that the isolation experienced by ADX inmates was partial and relative (§§ 221 – 223).", "35. With regard to sentencing the Court held that an extradition would only violate Article 3 if the applicant faced a grossly disproportionate sentence in the receiving State. However, it would only be in very exceptional circumstances that the applicant would be able to demonstrate that a sentence faced in a non-Contracting State would be grossly disproportionate (§ 238). In this regard, the Court noted that an Article 3 issue would only arise in respect of a mandatory life sentence without parole and a discretionary life sentence when it could be shown that the applicant’s imprisonment could no longer be justified on any legitimate penological grounds and that the sentence was irreducible de facto and de jure (§ 242).", "36. Finally, the Court considered the position of persons with mental health problems. It noted that insofar as the applicants’ complaints concerned the conditions of pre-trial detention, those complaints were manifestly ill-founded because it had not been suggested that prior to extradition the United Kingdom authorities would not inform their United States’ counterparts of the applicants’ mental health conditions or that, upon extradition, the United States’ authorities would fail to provide appropriate psychiatric care to them. The Court also noted that it had not been argued that psychiatric care in the United States’ federal prisons was substantially different to that available at HMP Long Lartin. Moreover, there was no reason to believe that the United States’ authorities would ignore any changes in the applicants’ conditions or refuse to alter the conditions of their detention to alleviate any risk to them. The Court further found that no separate issue arose with regard to post-trial detention (§ 249)." ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE", "31. For a general summary of the relevant domestic and international law and practice regarding extradition, detention at ADX Florence, solitary confinement and sentences, see the Court’s judgment in Babar Ahmad and Others v. the United Kingdom, nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, §§ 62 - 165, 10 April 2012.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "37. The applicant submitted that his extradition to the United States would not be compatible with Article 3 of the Convention, which provides as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "38. The Government contested that argument.", "A. The parties’ submissions", "1. The applicant", "39. The applicant submitted that his uprooting for placement in an as yet unknown and unidentified future environment of which no detail had been provided to the Court, with a risk of placement in conditions of isolation, would not be compatible with Article 3 of the Convention.", "40. The applicant submitted that his detention in Broadmoor Hospital was essential for his personal safety and treatment. In particular, he relied on the decision of the Mental Health Tribunal of 11 November 2011, which found that it was appropriate for the applicant to remain at Broadmoor rather than be returned to HMP Long Lartin despite the fact that HMP Long Lartin had an experienced healthcare department.", "41. The applicant also contended that if extradited he could remain in pre-trial detention for a number of years and no information had been submitted by the Government or by the United States’ Department of Justice concerning the conditions of that detention.", "42. The applicant further submitted that there was evidence to suggest that mentally ill patients were detained at ADX Florence and that this was not disputed by the Government. It was therefore likely that if convicted and sentenced he would be housed at ADX Florence in a single cell, where at best he would spend a significant part of each day alone. If this were the case, he submitted that the conditions of isolation were likely to exacerbate his pre-existing mental illness. The applicant had a history of not eating and drinking while under stress and immediately after his transfer from HMP Long Lartin to Broadmoor he had experienced florid psychiatric episodes and a continuing refusal to take food and drink. He therefore submitted that there was a real risk that this behaviour would resume were he to be extradited to a different and potentially more adverse environment in a different country. Moreover, there was evidence to suggest that force ‑ feeding was employed at ADX Florence when inmates went on hunger strike and if used on the applicant it would likely cause him significant pain and distress.", "43. Therefore, although the Court had found in Babar Ahmad that the conditions in ADX Florence would not violate Article 3 in respect of the applicants in that case, the applicant submitted that they were likely to have a much greater impact on him on account of his mental illness.", "44. Finally, the applicant submitted that prosecution in the United Kingdom could be contemplated and achieved without the accompanying risks outlined above.", "2. The Government", "45. The Government submitted that if the applicant consented to the communication of his confidential medical records to the United States’ authorities in advance of his surrender, they would ensure that the records were so communicated. Consequently, if surrendered to the United States’ authorities his mental health would be relevant to every decision taken regarding his placement within the prison system, both while on remand and, if convicted, following conviction and sentencing. It could also be raised as an issue in respect of his fitness to plead or competency to stand trial. All relevant decisions would be taken in circumstances where the applicant would have a full right of access to the United States’ courts and the full panoply of protections afforded to him by the United States’ criminal justice system.", "46. With regard to the possible conditions of detention, the Government principally relied on the information provided by the United States’ Department of Justice. In particular, they reiterated that while a diagnosis of schizophrenia would not preclude designation to a maximum security facility such as ADX Florence, in practice most inmates with this diagnosis were managed and treated in other facilities.", "47. The Government therefore submitted that the applicant’s extradition to the United States would not be incompatible with his Article 3 rights by virtue of his mental health concerns.", "B. The Court’s assessment", "48. With regard to the applicant’s submission as to the appropriate forum for prosecution, the Court notes that the Government have not disputed that the offences for which his extradition is sought could be tried in the United Kingdom. In such a case it would be for the competent domestic court to determine whether or not he was fit to stand trial. It observes, however, that in their submissions in Babar Ahmad the Government stated that they do not intend to prosecute the applicant for any of the offences at issue (see Babar Ahmad and Others v. the United Kingdom, nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, § 166, 10 April 2012). Consequently, the Court does not consider that the question of the appropriate forum for prosecution, and the relevance of this question to the Court’s assessment under Article 3, arises for examination in the present case (cf. Soering v. the United Kingdom, 7 July 1989, § 16, Series A no. 161).", "49. With regard to the substance of the applicant’s complaint, it is now well-established that Contracting States have the right to control the entry, residence and expulsion of aliens. However, in exercising their right to expel aliens, Contracting States must have regard to Article 3 of the Convention which enshrines one of the fundamental values of democratic societies. It is precisely for this reason that the Court has repeatedly stressed in its line of authorities involving extradition, expulsion or deportation of individuals to third countries that Article 3 prohibits in absolute terms torture or inhuman or degrading treatment or punishment and that its guarantees apply irrespective of the reprehensible nature of the conduct of the person in question (see, for example, Ahmed v. Austria, judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2206, § 38, and Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, p. 1853, §§ 73-74).", "50. On many occasions the Court has held that the detention of a person who is ill may raise issues under Article 3 of the Convention and that the lack of appropriate medical care may amount to treatment contrary to that provision (see Sławomir Musiał v. Poland, no. 28300/06, § 87, 20 January 2009 with further references therein). In particular, the assessment of whether the particular conditions of detention are incompatible with the standards of Article 3 has, in the case of mentally ill persons, to take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment. The feeling of inferiority and powerlessness which is typical of persons who suffer from a mental disorder calls for increased vigilance in reviewing whether the Convention has (or will be) complied with. There are three particular elements to be considered in relation to the compatibility of an applicant’s health with his stay in detention: (a) the medical condition of the prisoner, (b) the adequacy of the medical assistance and care provided in detention, and (c) the advisability of maintaining the detention measure in view of the state of health of an applicant (ibid. and Dybeku v. Albania, no. 41153/06, § 41, 18 December 2007).", "51. The medical evidence in the present case indicates that the applicant is suffering from an enduring mental disorder, namely paranoid schizophrenia, which has been characterised by auditory hallucinations, thought disorder, delusions of reference, grandeur and guarded and suspicious behaviour (paragraph 22 above). The last forensic psychiatrist report submitted to the Court indicated that his condition was well controlled on anti-psychotic medication and that participation in occupational and vocational activities at Broadmoor, including attendance at the Mosque, had helped prevent any significant deterioration in his mood. However, the applicant had only limited insight into his illness and would be likely to relapse if he ceased taking his medication. In giving evidence to the First-Tier Tribunal (Health, Education and Social Care Chamber) Mental Health a Consultant Forensic Psychiatrist stated that if he were to be returned to prison, his compliance with medication would be uncertain, particularly in the medium to long term, and this would likely lead to a relapse. The Tribunal subsequently concluded that detention and treatment in a medical hospital were necessary for the applicant’s own health and safety.", "52. Whether or not the applicant’s extradition to the United States would breach Article 3 of the Convention very much depends upon the conditions in which he would be detained and the medical services that would be made available to him there. However, any assessment of those detention conditions is hindered by the fact that it cannot be said with any certainty in which detention facility or facilities the applicant would be housed, either before or after trial. This is particularly the case with respect to the pre-trial period, about which very little information has been provided. The United States’ Department of Justice has given no indication of where the applicant would or could be held, although it has advised that if he consents to his medical records being provided to the United States’ authorities on extradition, those authorities would be able to take his mental health concerns into account in deciding where to house him while on remand. It is also unclear how long the applicant might expect to remain on remand pending trial. If extradited the applicant’s representatives would be entitled to contend that he was not fit to stand trial in the United States on account of his mental disorder. A District Judge would then have to assess his competency and, if the applicant was found to be competent, he could appeal to the Court of Appeals. There is no information before the Court concerning the potential length of a competency assessment or any subsequent appeals procedure, but it is reasonable to assume that the length of pre-trial detention might be prolonged if the applicant were to assert these rights. Finally, the Court notes with concern the complete absence of any information about the consequences for the applicant if the District Judge were to find that he was not fit to stand trial.", "53. The Court has given its fullest consideration to the submissions of the Government and the Department of Justice concerning the treatment of mentally ill prisoners in the United States of America. In particular, it notes that with regard to detention following a possible conviction, the Department of Justice has informed the Court that after sentencing the Federal Bureau of Prisons would decide which institution the applicant should be housed in. The Bureau would assess the applicant within the first twenty-four hours and if there were concerns about his mental health at that time a doctoral level psychologist would be consulted. In any case, he would be referred to a doctoral level psychologist after fourteen days for an evaluation. If the Bureau held a hearing, the applicant could present evidence and make an oral statement to the panel. In deciding which institution he should be housed in, the Bureau would consider any medical, psychiatric or psychological concerns that had been identified. While his mental disorder would not by itself preclude his designation to ADX Florence, the evidence suggested that most inmates with paranoid schizophrenia were not housed in maximum security facilities (see paragraph 27 above).", "54. Moreover, according to the information provided by the Department of Justice, mental health services were available in all prisons, including ADX Florence, and both inpatient, residential and outpatient care was available. Conditions of confinement could also be modified if an inmate’s mental health was to deteriorate and acutely mentally ill inmates could be referred to a Psychiatric Referral Centre for acute, in-patient psychiatric care (see paragraph 27 above).", "55. The Court therefore accepts that if convicted the applicant would have access to medical facilities and, more importantly, mental health services, regardless of which institution he was detained in. Indeed, it recalls that in Babar Ahmad it was not argued that psychiatric care in the United States’ federal prisons was substantially different from that which was available at HMP Long Lartin ( Babar Ahmad, cited above, § 249). However, the mental disorder suffered by the present applicant was of sufficient severity to necessitate his transfer from HMP Long Lartin to a high-security psychiatric hospital and the medical evidence, which was accepted by the First-Tier Tribunal, clearly indicated that it continued to be appropriate for him to remain there “for his own health and safety”.", "56. The question in the present case is not whether the applicant can be returned to HMP Long Lartin but whether he can be extradited to the United States of America, a country where he has no ties and where he will face an uncertain future in an as yet undetermined institution. Moreover, there is no guarantee that if tried and convicted he would not be detained in ADX Florence, where he would be exposed to a “highly restrictive” regime with long periods of social isolation. In this regard, the Court notes that the applicant’s case can be distinguished from that of Mustafa Kamal Mustafa (Abu Hamza). While no “diplomatic assurances” were given that Abu Hamza would not be detained in ADX Florence, the High Court found on the evidence before it that his medical condition was such that, at most, he would only spend a short period of time there ( Babar Ahmad and Others v. the United Kingdom, nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09 (dec.), §§ 144 – 145, 6 July 2010). The Court notes, however, that there is no evidence to indicate the length of time that the present applicant would spend in ADX Florence.", "57. While the Court in Babar Ahmad did not accept that the conditions in ADX Florence would reach the Article 3 threshold for persons in good health or with less serious mental health problems, the applicant’s case can be distinguished on account of the severity of his mental condition. The applicant’s case can also be distinguished from that of Bensaid v. the United Kingdom, no. 44599/98, (ECHR 2001 ‑ I) as he is facing not expulsion but extradition to a country where he has no ties, where he will be detained and where he will not have the support of family and friends. Therefore, in light of the current medical evidence, the Court finds that there is a real risk that the applicant’s extradition to a different country and to a different, and potentially more hostile, prison environment would result in a significant deterioration in his mental and physical health and that such a deterioration would be capable of reaching the Article 3 threshold (see Bensaid v. the United Kingdom, cited above, § 37).", "58. Insofar as the applicant’s complaints concern the length of his possible detention, and leaving aside his present mental condition, the Court finds that he has not demonstrated that any sentence imposed would be grossly disproportionate. It has previously held that while, in principle, matters of appropriate sentencing largely fall outside the scope of Convention, a grossly disproportionate sentence could amount to ill ‑ treatment contrary to Article 3 at the moment of its imposition. However, it has also stated that “gross disproportionality” is a strict test which will only be met on “rare and unique occasions” ( Babar Ahmad, cited above, §§ 235 – 237; see also Harkins and Edwards v. the United Kingdom, nos. 9146/07 and 32650/07, § 133 17 January 2012). In the present case the evidence suggested that the applicant could be sentenced to anything up to thirty-five years’ imprisonment. There was no minimum sentencing requirement. In view of the nature of the alleged offences, which included terrorism offences, and the high threshold required to demonstrate that a sentence would be grossly disproportionate, the Court does not accept that the applicant’s extradition would give rise to a real risk of treatment contrary to Article 3 of the Convention as a result of the length of any sentence imposed.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "59. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "60. The applicant did not submit a claim for just satisfaction.", "III. RULE 39 OF THE RULES OF COURT", "61. The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.", "62. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see paragraph 4 above) must continue in force until the present judgment becomes final or until the Court takes a further decision in this connection (see operative part)." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants were born in 1977 and 1956 respectively and live in Zagreb.", "6. The first applicant is a person divested of legal capacity owing to his mental and physical retardation. He goes to a workshop for adults at the V.B. primary school in Zagreb for twelve hours a week. He is taken care of by his mother, the second applicant. The medical documentation of 16 June 2008 submitted in respect of the first applicant describes his health as follows:", "“... in his very early childhood he suffered from purulent meningitis, which resulted in permanent consequences and epilepsy. He is retarded in his mental and physical development and is under the constant supervision of a neurologist and psychiatrist. Owing to hydrocephalus he has had a Pudenz valve [a type of cerebrospinal fluid shunt] implanted. ... his eyesight is very poor ... and he is dependent on his mother as regards feeding, dressing, personal hygiene and moving about. His spine is mobile but painful in the lower region. ... he suffers from severe foot deformation, ... has difficulty walking; walking on his toes and heels is not possible. Mentally he is emotionally distant, fearful and he has a poor vocabulary. ...”", "7. The applicants live in a ground-floor flat in a block of flats in Špansko, a part of Zagreb. The A.K. primary school is nearby in their neighbourhood.", "8. It appears that the applicants were subjected to harassment between July 2008 and February 2011. They alleged that pupils from the A.K. primary school, all minors, frequently harassed them, and in particular the first applicant, at all times of the day, especially when the pupils returned home from school in groups and in the late afternoon and evening when they gathered without parental supervision on and around a wooden bench in front of the balcony of the applicants’ flat. The harassment, in their submission, was motivated by the first applicant’s health and both applicants’ Serbian origin. A larger group of children, also minors, came daily to a park in front of the applicants’ flat, shouted obscenities at the first applicant, called him names and wrote insulting messages on the pavement. The children often rang the applicants’ bell, asking when the first applicant was going out. They often spat at him.", "9. A police report of 31 July 2008 shows that the second applicant called the police at 9.12 p.m. and complained that unknown young persons were harassing her son and had smashed some objects on her balcony. The police arrived at the applicants’ home at 9.30 p.m. and the second applicant told them that at about 6 p.m. she and the first applicant had left the flat and that when they had returned at about 9 p.m. she had found the balcony ruined and all the flower beds torn up. She also told the police that the first applicant had been harassed for a longer period of time by children in the neighbourhood on account of his mental retardation. She named two of the children.", "10. On 2 March 2009 the Susedgrad Social Welfare Centre ordered the supervision of the parental care of D.K., a pupil at A.K. primary school, on account of his poor school results, problematic behaviour and tendency to commit criminal offences. There was no mention of his involvement in the harassment of the applicants.", "11. A medical report drawn up on 6 April 2009 shows that the first applicant had been psychologically and physically harassed in the street and that he had cigarette burns on both hands. The doctor asked the social authorities to institute proceedings for the protection of the first applicant as a person with serious mental disorders and described him as a peaceful and benign person who could not and did not know how to defend himself from the abusers.", "12. In a letter of 20 April 2009 to the Ombudswoman for Persons with Disabilities, the second applicant complained that on 4 April 2009 two children, D.K. and I.M., had harassed the first applicant. She alleged that while riding their bicycles they had approached the first applicant and burned his hands with cigarettes. She also complained that the first applicant had been continually harassed by children attending a nearby school on the basis of his mental retardation and added that she had on numerous occasions complained to the Susedgrad Social Welfare Centre and the authorities of the A.K. primary school, but to no avail.", "13. On the same day the applicants’ lawyer complained to the police about the incident of 4 April 2009.", "14. A police report of 5 May 2009 records that on that day on the premises of the II Zagreb Police Station the police interviewed D.K., born in 1997, and P.B., born in 1995. The relevant part of the report in respect of D.K. reads:", "“When asked whether he remembers the event of 4 April 2009 in ... Zagreb, [D.K.] said that at about 12 noon he was there with his friend I.M., who is in the seventh grade at A.K. primary school, and that P.B., an older boy from the seventh grade of the same school, arrived together with two men, unknown to him, who were playing with a ball. A person who is disabled and has had problems from birth and who lives in a block of flats in ... Street was playing between the buildings. At one point, P.B. lit a cigarette, approached Dalibor and burned his right hand several times, after which they all ran away because that person started to shout.”", "The relevant part of the report in respect of P.B. reads:", "“When asked whether he remembers the event of 4 April 2009 in ... Zagreb, concerning the harassment of a disabled person, Dalibor Đorđević, [P.B.] says that he was not present on that occasion but that at the beginning of that week during the morning break he had met D.K., who is in the fifth grade at the same school and who told him that he [D.K.] and I.M. at about 12 noon on Saturday had burned with a cigarette the hand of a person named Dalibor in ... Street who lives on that street and is disabled.", "When asked a further question as to whether he knew what that person looks like, he answered that he used to go to play on that street with other boys from the neighbourhood and he saw that person, who is about thirty, strongly built, has short salt-and-pepper hair and a pale complexion and has difficulty speaking. That person plays with other children who tease him and he runs after them and beats them.”", "15. A police report of 7 May 2009 records that on that day on the premises of the II Zagreb Police Station the police interviewed I.M., born in 1994. The relevant part of the report reads:", "“When asked whether he remembers the event of 4 April 2009 in ... Zagreb, concerning the harassment of a disabled person, Dalibor Đorđević, between thirty and forty years old, [I.M.] said that he remembered that occasion, that it was a Saturday ... and that he took his bicycle and went ... with D.K. to ... Street, where they saw Dalibor, a person disabled from birth, between the buildings, playing with a ball with some children who took the ball and did not want to return it to him. When he saw this, he [I.M.] asked the children why they did not give the ball back to Dalibor, and Dalibor started to shout and wave his hands. The children then threw the ball and he took it. He [I.M.] was holding a cigarette in his left hand ... and as he was passing Dalibor on his bicycle he [Dalibor] started to wave his hands and slapped him a few times on the hand in which he was holding the cigarette and thus Dalibor burned his hand. He was sure that he burned Dalibor only once and he was sorry for it. He did not understand why Dalibor reacted in such a manner because it was not his [I.M.’s] fault that some children took his ball. The pupil P.B. was not with them.", "...", "When asked a further question as to whether Dalibor had problems with other children, [I.M.] answered that he is often on that street where Dalibor plays ball with other boys and that these children tease Dalibor because of his illness ... and then he runs after them and catches them.", "In the end [I.M.’s] mother R. was advised to keep an eye on I.M.’s behaviour. She said that she had no problems with him and she did not know why he had done this.”", "16. On 19 May 2009 the II Zagreb Police Station sent a report to the Zagreb State Attorney’s Juvenile Office stating that", "– on 16 April 2009 they had received a letter from the Susedgrad Social Welfare Centre stating that it had received a letter from the second applicant in which she had alleged that her son had been ill-treated by D.K. and others and enclosed medical documentation; and", "– on 30 April 2009 they had received a letter from the Ombudswoman for Persons with Disabilities stating that she had also received a letter from the second applicant who was seeking help in connection with the frequent harassment of the first applicant.", "The police also informed the Zagreb State Attorney’s Juvenile Office about the interviews they had conducted with the children D.K., I.M. and P.B.", "17. In a letter of 20 May 2009 the II Zagreb Police Station informed the Ombudswoman that they had interviewed the children I.M. and D.K., that they had contacted the headmaster of A.K. primary school, that the police officers from the station had been informed about the problems and that they had regularly patrolled the streets in question.", "18. On 17 July 2009 the police informed the Susedgrad Social Welfare Centre that they had established that on 4 April 2009 at about 12 noon the first applicant had been playing with a ball in the street with some boys from the neighbourhood who had taken his ball away, which had upset him. When the boys I.M. and D.K. had gone past the first applicant he had waved his hands and I.M. had unintentionally burned them.", "19. On 16 July 2009 the Susedgrad Social Welfare Centre drew up a report on the first applicant. The relevant part of the report reads:", "“ ...", "On 6 August 2008 [the first applicant’s] mother, Radmila, complained to us about harassment of Dalibor, alleging that the children ... were visiting the girls V.K. and I.K., who lived in their block of flats. The K. girls said that they had not harassed Dalibor and that the leader of the group had been H.B.", "An agreement has been reached with the K. girls and their mother, J.F., that the girls will stop hanging around in front of the block of flats and will find another place to do so in order to avoid conflicts.", "H. and her parents were summoned to this office. H. said that she would no longer hang around in front of that block of flats and that there had been peace for a time.", "After that the boys started to come, in different groups, so that Mrs Đorđević could not tell their names, but she knew that they attended A.K. primary school.", "Mrs Đorđević again complained of harassment on 8 April 2009, when Dalibor had been burned with cigarettes and [she said that] the harassment had continued.", "On 17 June 2009 an interview with Mrs Đorđević was carried out. [She said] that the problems had continued. There were constantly new children who provoked Dalibor, mostly acquainted with the K. girls. There would be peace for two or three days and then the problems would start again. She had good relations with the school counsellor, the defectologist and the headmaster.", "Mrs Đorđević stated: ‘On 16 June 2009 first the girls came and stood next to the bench. Mrs Đorđević told Dalibor to come inside because she knew how afraid he was of them. They said that he did not need to be afraid because they would soon leave. Then a group of boys came and sprayed Dalibor with water from a balloon.’", "Mrs Đorđević also said that lately V.K. had again started to get children to meet up in front of the building, which upset Dalibor.", "The police and the school were informed about the above events.", "The school [authorities] talked to all the children who had been reported and to their parents.", "The police carried out an inquiry [and interviewed] the children who had been present when Dalibor was burned.", "In order to prevent further harassment we wrote to the school [authorities, asking them] to hold meetings with all children and parents at the beginning of the school year, in all classes, to inform everyone of the problem and to make it clear that they were all responsible for the ill-treatment until the perpetrators were identified. It was also suggested that lectures and workshops with children be held in order for them to understand that there were persons with disabilities who had the same rights as everybody else – to walk about and live their lives outside their flats without being harassed by anyone.", "It was agreed with police officer I.M. from the II Police Station that the police in charge of that neighbourhood would keep a closer eye on and patrol more frequently the street in order to identify the perpetrators of the harassment.", "On 14 July 2009 a visit of the family was carried out and only Dalibor was found; he did not know where his mother was and also said that the children had not teased him lately. Dalibor was in the flat and there were no children around the building.", "...”", "20. On 27 July 2009 the Zagreb Municipality State Attorney’s Office informed the second applicant that the perpetrators of the criminal offence of violent behaviour under Article 331 § 1 of the Criminal Code were D.K. and I.M., who were children below 14 years of age, and that therefore no criminal proceedings could be instituted against them. The second applicant was instructed that she could bring a claim for compensation in civil proceedings.", "21. A police report of 5 September 2009 states that on that day the second applicant called the police at 8.40 p.m. complaining about noise in the park. When the police arrived at 8.45, the second applicant told them that in the meantime the children had left.", "22. A medical report in respect of the first applicant drawn up on 8 September 2009 indicates that he had constantly been harassed by children, who had burned his hands, shouted at him and made noise in front of the applicants’ balcony. It stated that it was necessary for the first applicant to spend time outdoors.", "23. A report drawn up on 17 September 2009 by the Susedgrad Social Welfare Centre indicates that they had interviewed I.M. and his mother. Since I.M. expressed regret about the incident of 4 April 2009, there was no need for any further measures.", "24. On an unspecified date in September 2009 the headmaster of A.K. primary school sent a letter to the parents informing them that in their neighbourhood lived a young man with disabilities named Dalibor who had been frequently harassed by schoolchildren. The headmaster expressly stated that the children had admitted to “a number of brutal acts” against Dalibor, such as making derogatory remarks, using insulting language and swearing, behaving provocatively, taking his ball and burning his hands with cigarettes. The parents were asked to talk to their children and warn them about the possible consequences of such behaviour.", "25. The relevant part of the written record of a parent-teacher meeting held on 30 September 2009 at A.K. primary school reads as follows:", "“...", "At all parent-teacher meetings in the new school year we have drawn the parents’ attention to a young man with special needs who lives in the school’s neighbourhood and who has been harassed by pupils from our school, mostly verbally and sometimes physically. His mother often seeks help from the school employees, and a social welfare centre and the Ombudswoman for Persons with Disabilities have also been involved. The parents were asked to talk to their children and raise their awareness about the problem of accepting differences and the need for peaceful coexistence.", "The parents present commented on the matter. Some of them mentioned that the young man in question had sometimes also been aggressive, that he had approached young girls in an inappropriate manner and that they had expressed a fear of him and tended to avoid the area where he usually was. Some also commented that he should not be out in public and that he should spend time in conditions appropriate for him or in the park under the constant supervision of a guardian. The headmaster noted all the comments and promised to contact the competent social welfare centre.", "...”", "26. On 1 October 2009 the applicants’ lawyer sent a written complaint to the Zagreb Municipality State Attorney’s Office. She stated that her clients were two Croatian nationals of Serbian origin, a mother and her son who suffered from mental and physical retardation. She explained that her clients lived about seventy metres away from A.K. primary school and that they had been constantly harassed by schoolchildren, at all times of the day and mainly when the children went home from school in groups and in the late afternoon and evening when they gathered around a bench in front of the applicants’ balcony without parental supervision. She alleged that the harassment had already been going on for about four years and was motivated by the applicants’ Serbian origin and the first applicant’s disability. A group of children aged from 10 to 14 hung around daily in front of the block of flats where the applicants lived, shouting insults and obscenities and calling them names. They also wrote insulting remarks on the pavement in front of the building.", "The lawyer further described the incident of 4 April 2009. Relying on Articles 8 and 13 of the Convention, she complained that there was no effective remedy in the Croatian legal system affording protection from violent acts by children.", "She also described the events of 5 and 7 September 2009, when a group of children had insulted the first applicant and, on the latter date, taken a ball from him. On 10 September 2009 a group of boys had urinated in front of the applicants’ door. On 14 September 2009 about fourteen pupils from the fourth and fifth grades had pushed the first applicant, insulted him and taken a ball from him. The day after a boy had shouted insults at him.", "She also alleged that the children had physically attacked the first applicant on at least ten different occasions and had often spat at him. On 31 July 2008 the children had ruined the applicants’ balcony by tearing up all the flower beds and by throwing stones and mud onto the balcony. A few days later they had thrown a carton of chocolate milk onto the balcony.", "The second applicant had reported the harassment to the social services, the police, the Ombudswoman for Persons with Disabilities and the school authorities. Despite the good will of all those concerned, the harassment of the applicants had continued.", "27. A medical report in respect of the first applicant drawn up on 7 October 2009 indicates that he had constantly been harassed by children.", "28. A medical report in respect of the first applicant drawn up on 9 November 2009 indicates that he had been attacked by children a few days before, which had greatly upset him. Psychotherapy was recommended.", "29. A medical report in respect of the first applicant drawn up on 14 December 2009 states that “everyone hit him mercilessly with snowballs”, which had scared him.", "30. A medical report in respect of the first applicant drawn up on 14 January 2010 indicates that the first applicant suffered from constant anxiety and a feeling of being persecuted because “nothing ha[d] been done to resolve his situation”.", "31. A police report of 19 March 2010 states that the second applicant called the police that day at 9.18 p.m. because of “problems with children”. When the police arrived at 9.25 p.m. the second applicant told them that the children had been playing with a ball in the park and had then hit her window with the ball and run away.", "32. A medical report in respect of the first applicant drawn up on 11 April 2010 indicates that the first applicant was attacked by a group of children and was hit by a ball on the nose.", "33. The applicants alleged that on 13 May 2010 a group of children, including a boy, P., pushed the first applicant against an iron fence in the park. He fell and hit his head and right leg. He was disoriented and uncommunicative for three days. Medical documents drawn up on the same day show that the first applicant suffered from swelling in his right leg and skin abrasion on the left side of his forehead. He was unable to walk for five days and the second applicant had to borrow a wheelchair for him. The medical report also indicates that the first applicant had stumbled and sprained his ankle and had also hit his head.", "34. On 14 May 2010 the second applicant complained to the police that on 13 May 2010 a boy, P.B., had pushed the first applicant against a wall and had also taken his ball.", "35. On 20 May 2010 the applicants’ lawyer wrote to the Zagreb Municipality State Attorney’s Office complaining that since her last letter of October 2009, there had been further incidents of violence and harassment against the applicants. The relevant part of the letter reads:", "“...", "On 5 November 2009 two boys, one of whom was P., verbally abused the first applicant, which scared him.", "The second applicant informed the school counsellor about the incident but has not received a reply.", "On 14, 18 and 21 December 2009 a group of children threw snow at the applicants’ window and on one of those occasions covered their balcony with snow.", "On 15 December 2009 a group of children verbally insulted the first applicant in the street. On 22 February 2010 the second applicant was called by a social worker from the Susedgrad Social Welfare Centre, J.S., who told her that the only way to resolve the situation was to bring a civil action.", "On 19 March 2010 the children kept throwing a ball at the applicants’ windows, about which the police were informed. On 20 March 2010, while the first applicant was riding on a bus, a group of children shouted his name, which upset him.", "On 10 April 2010 a boy whose first name was R. hit the first applicant on the nose with a ball, which disoriented him and caused him pain. The second applicant informed the police about it. The police conducted a two-hour interview with her and expressed their regret but informed the second applicant that nothing could be done because any kind of inquiry would show that the children had only been joking.", "On 13 May 2010 a group of children, including P., pushed the first applicant against an iron fence in the park. He fell and hit his head and right leg. He was disoriented and uncommunicative for three days.", "On 18 May 2010, when the first applicant was sitting on a swing, a group of children approached him and made obscene gestures and told him that he was stupid.”", "36. On the same day the lawyer complained about the harassment of the applicants to the Ombudswoman for Children and asked for advice.", "37. The applicants alleged that on 24 May 2010 a group of boys hit the first applicant’s head against an iron fence in the park and said that they enjoyed it. A medical report in respect of the first applicant drawn up on the same day indicates that he had been pushed against an iron fence and had hit his head on it.", "38. On 25 May 2010 the Zagreb Municipality State Attorney’s Office informed the applicants’ lawyer that it had no jurisdiction in the matter since the complaints concerned children who were not criminally responsible.", "39. On 26 May 2010 the headmaster of A.K. primary school informed the applicants’ lawyer that the school authorities had taken all measures they deemed appropriate, such as discussion with the pupils concerned and the provision of information to all parents at parent-teacher meetings about the problems the applicants had encountered with the pupils.", "40. On 31 May 2010 the Ombudswoman for Children informed the applicants’ counsel that she had no jurisdiction in the matter.", "41. A medical report in respect of the first applicant drawn up on 29 June 2010 indicates that he had continually been attacked by children in the neighbourhood.", "42. Medical reports in respect of the first applicant drawn up on 29 June, 25 October and 24 November 2010 and 9 February 2011 indicate that the first applicant had continually been attacked by children in the neighbourhood.", "43. On 1 July 2010 the police interviewed P.B., a pupil attending A.K. primary school, about the incidents of 13 and 14 May 2010, in which he denied his involvement.", "44. The applicants alleged that on 13 July 2010 at 9 p.m. four boys and a girl made repeated lewd comments in a loud voice under the applicants’ window. When the second applicant asked them to be quiet they replied provocatively, using the Serbian dialect in direct allusion to the applicants’ Serbian origin, telling her: “Call the police, we are not afraid [ zovi bre policiju, mi se ne bojimo ]”. The second applicant reported this incident on 14 July 2010 to a social worker from the Susedgrad Social Welfare Centre, Ms J.S.", "45. On 19 July 2010 the Susedgrad Social Welfare Centre interviewed V.K., who lived in the same block of flats as the applicants. She denied her involvement in the harassment of the applicants. She also said that children and alcoholics frequently gathered at the bench in front of the block of flats where she lived and made screaming noises, which irritated her family as well.", "46. On 2 August 2010 the Susedgrad Social Welfare Centre informed the police that the second applicant had complained of continued harassment and violence against the first applicant. The police were asked to take appropriate measures.", "47. On 26 August 2010 the police interviewed Z.B., a pupil attending A.K. primary school, who denied any involvement in the harassment of the first applicant.", "48. On 27 August 2010 the second applicant asked the Zagreb Municipality for the wooden bench beneath the applicants’ window to be removed.", "49. The applicants alleged that on 31 August 2010 at around 3 p.m., when they were returning home from a shop, a boy known to them as M. rode past them on a bicycle and shouted insults at the first applicant, saying, inter alia : “Dalibor is a fag”. The first applicant felt extremely anxious and stressed.", "50. The applicants alleged that on 1 September 2010 at 6.45 p.m. three boys on bicycles rode up in front of their window and threw rubbish and screamed. At 7.20 p.m. more children gathered around the wooden bench in front of the applicants’ window and repeatedly hit a nearby metal fence, thus making a lot of noise. They also threw a stone at the applicants’ window and made lewd comments in loud voices. At 10.03 p.m. the second applicant called the police. Since the police did not come, she called them again at 10.28 p.m. The police said that they would come but that they had other calls to answer as well. The police arrived at 10.32 p.m. and told the children to move a few metres away from the applicants’ window. They made no attempt to identify the children. A police report of the same day indicates that at 9.21 p.m. the second applicant had called the police and complained about noise in the park. When the police arrived at 10.35 p.m. they had not found anyone in front of the building.", "51. The applicants alleged that on 3 September 2010 a group of about ten children gathered around the bench and made an unbearable amount of noise. At 10.15 p.m. the second applicant called the police, who arrived at 10.40 p.m. and ordered the children to go away, without, however, making any attempt to identify them. A police report of the same day indicates that at 10.20 p.m. the second applicant had called the police and complained about noise in the park. When the police arrived at 10.25 p.m. they had not found anyone.", "52. The applicants alleged that on 5 September 2010 at about 9 p.m. they noticed, on returning from church, that an unidentified white substance had been thrown at their window in their absence. There were also some children screaming under their window. At 10 p.m. the second applicant called the police. The applicants further alleged that on 7, 8, 14, 23 and 27 September 2010, children gathered around the bench and made an unbearable amount of noise.", "53. On 23 September 2010 the police interviewed I.S., a pupil attending A.K. primary school, who denied any involvement in the harassment of the first applicant.", "54. The applicants alleged that on 2 October 2010 five boys gathered around the bench and made loud noises. At 7.40 p.m. seven boys threw balls at the applicants’ window and made noise until late at night. At 11.38 p.m. the second applicant called the police, who arrived at a quarter past midnight and told the boys to leave without asking them any questions or making any attempt to identify them. A police report of the same day indicates that the second applicant had called the police at 11.40 p.m. and complained about noise. When the police had arrived at a quarter past midnight they had not found anyone.", "55. The applicants further alleged that on 4 October 2010 at 4 a.m. they were awakened by a car alarm outside their window. Some children were banging on the outer wall of their flat, making a very loud noise. The first applicant’s pet rabbit died that night and he attributed the rabbit’s death to the events of that night, which made him extremely upset. On 15 October 2010, while the applicants were not at home, someone spat on their living-room window until it was completely covered in saliva. On 23 October and 7, 14 and 19 November 2010 groups of children gathered around the bench, making a lot of noise.", "56. On 17 November 2010 the Zagreb Municipality informed the second applicant that her request for the removal of the bench situated beneath the balcony of the applicants’ flat had been denied.", "57. The applicants alleged that on 22 November 2010, while they were coming home from a shop, a group of children shouted after them: “Dalibor, Dalibor!” The first applicant was paralysed with fear and asked his mother why they would not leave him alone. The second applicant wrote to the Office of the President of Croatia and the Ombudswoman for Persons with Disabilities about the harassment of her son, seeking their assistance in connection with the removal of the bench. On 5 December 2010 at around midnight some children threw snowballs at the applicants’ window, which terrified the first applicant.", "58. On 14 December 2010 the Ombudswoman for Persons with Disabilities recommended to the Zagreb Municipality that the bench be removed. The bench was removed in February 2011. The applicants alleged that on the same day, some children destroyed a metal container under their window where the gas meters were located.", "59. The applicants alleged that further incidents occurred as follows. On 5 February 2011 a group of children shouted provocatively at the second applicant on the street, using the Serbian dialect (“ De si bre? ”). On 8 February 2011 at 6.40 p.m. some children rang the applicants’ doorbell and then ran away. On 10 February 2011 the applicants went to a hairdresser, taking a detour in order to avoid the children. However, they met a group of children who shouted “Dalibor!” in a provocative manner. On 13 February 2011 at 12.30 p.m. seven boys ran around the applicants’ flat, banged on the walls, climbed onto their balcony, peered into the flat and laughed loudly. At 9.45 p.m. a group of boys sang the song “We are Croats” beneath the applicants’ window.", "60. A medical report of 9 March 2011 in respect of the first applicant indicates that owing to stress he often bit his lips and fists, and that he had a twitch in his left eye and symptoms of psoriasis. It also mentioned that he had frequently been attacked and ridiculed and that it was necessary to ensure a calm and friendly environment for him.", "i. to ensure effective access to justice for persons with disabilities on an equal basis with others;", "ii. to protect and promote the enjoyment of all human rights and fundamental freedoms by persons with disabilities on an equal basis with others.", "3.12.3. Specific actions by member States", "i. to provide protection against discrimination through the setting up of specific legislative measures, bodies, reporting procedures and redress mechanisms;", "ii. to ensure that provisions which discriminate against disabled people are eradicated from mainstream legislation;", "iv. to encourage non-governmental advocacy networks working in defence of people with disabilities’ human rights;", "v. to ensure people with disabilities have equal access to the judicial system by securing their right to information and communication that are accessible to them;", "vi. to provide appropriate assistance to those people who experience difficulty in exercising their legal capacity and ensure that it is commensurate with the required level of support;", "...", "3.13. Action line No. 13: Protection against violence and abuse", "3.13.1. Introduction", "Acts of abuse or violence against any person are unacceptable and society has a duty to ensure that individuals, particularly the most vulnerable, are protected against such abuse.", "There are indications that the rate of abuse and violence committed against persons with disabilities is considerably higher than the rate for the general population, and higher in women with disabilities, particularly women with severe disabilities, where the percentages of abuse far exceed those of non-disabled women. Such abuse can occur in institutions or other types of care and situations, including the family environment. It can be inflicted by strangers or persons known to the individual and can take many forms, for instance verbal abuse, violent actions, or the refusal to meet basic needs.", "While governments cannot guarantee that abuse will not happen they must do their utmost to establish protection and the strongest possible safeguards. Prevention can be assisted in many ways, particularly through education to appreciate the rights of individuals to protection and to recognise and reduce the risk of abuse. Persons with disabilities who experience abuse or violence should have access to appropriate supports. They must have a system in which they can have sufficient confidence to report abuse and expect follow-up action, including individual support. Such systems require personnel who are skilled and qualified to detect and respond to situations of abuse.", "While there has been some research undertaken in recent years, it is clear that further knowledge is required to inform future strategies and best practice.", "3.13.2. Objectives", "i. to work within anti-discriminatory and human rights frameworks towards safeguarding people with disabilities against all forms of violence and abuse;", "ii. to ensure access for people with disabilities to services and support systems for victims of violence and abuse.", "3.13.3. Specific actions by member States", "i. to establish safeguards to protect people with disabilities from violence and abuse through the effective implementation of policies and legislation, where necessary;", "ii. to promote the availability of and access to training courses for people with disabilities to reduce the risk of violence and abuse, for example courses in self-confidence and empowerment;", "iii. to develop processes, measures and protocols adapted to people with disabilities, to improve detection of violence and abuse, and to ensure that the necessary action is taken against perpetrators, including redress and adequate professional counselling in case of emotional problems;", "vi. to support people with disabilities, in particular women, and their families, in situations of abuse through the provision of information and access to services;", "vii. to ensure that systems are in place for the protection against abuse of persons with disabilities in psychiatric facilities, social care homes and institutions, orphanages, and other institutional settings;", "ix. to train police and judicial authorities so that they can receive testimony from disabled people and treat instances of abuse seriously;", "x. to provide people with disabilities with information on how to avoid the occurrence of violence and abuse, how to recognise it, and how to report it;", "xi. to take effective legislative, administrative, judicial or other measures with strong sanctions in a transparent manner and to allow for independent review by civil society in order to prevent all forms of physical or mental violence, injury or abuse, neglect and negligent treatment, maltreatment, exploitation or abduction of people with disabilities;", "...”", "77. The relevant parts of Resolution ResAP(2005)1 on safeguarding adults and children with disabilities against abuse (adopted by the Committee of Ministers on 2 February 2005 at the 913th meeting of the Ministers’ Deputies) read as follows.", "“...", "I. Definition of abuse", "1. In this Resolution abuse is defined as any act, or failure to act, which results in a breach of a vulnerable person’s human rights, civil liberties, physical and mental integrity, dignity or general well-being, whether intended or through negligence, including sexual relationships or financial transactions to which the person does not or cannot validly consent, or which are deliberately exploitative. At a basic level abuse may take a variety of forms:", "a. physical violence, including corporal punishment, incarceration – including being locked in one’s home or not allowed out –, over- or misuse of medication, medical experimentation or involvement in invasive research without consent, and unlawful detention of psychiatric patients;", "b. sexual abuse and exploitation, including rape, sexual aggression, indecent assault, indecent exposure, forced involvement in pornography and prostitution;", "c. psychological threats and harm, usually consisting of verbal abuse, constraints, isolation, rejection, intimidation, harassment, humiliation or threats of punishment or abandonment, emotional blackmail, arbitrariness, denial of adult status and infantilising disabled persons, and the denial of individuality, sexuality, education and training, leisure and sport;", "...", "3. These abuses require a proportional response – one which does not cut across legitimate choices made by individuals with disabilities but one which recognises vulnerability and exploitation. The term ‘abuse’ therefore refers to matters across a wide spectrum, which includes criminal acts, breaches of professional ethics, practices falling outside agreed guidelines or seriously inadequate care. As a consequence, measures to prevent and respond to abuse involve a broad range of authorities and actors, including the police, the criminal justice system, the government bodies regulating service provision and professions, advocacy organisations, user networks and patient councils, as well as service providers and planners.", "II. Principles and measures to safeguard adults and children with disabilities against abuse", "1. Protection of human rights", "Member States have a duty to protect the human rights and fundamental freedoms of all their citizens. They should ensure that people with disabilities are protected at least to the same extent as other citizens.", "Member States should recognise that abuse is a violation of human rights. People with disabilities should be safeguarded against deliberate and/or avoidable harm at least to the same extent as other citizens. Where people with disabilities are especially vulnerable, additional measures should be put in place to assure their safety.", "2. Inclusion of people with disabilities", "Member States should acknowledge that safeguarding the rights of people with disabilities as citizens of their country is a State responsibility.", "They should combat discrimination against people with disabilities, promote active measures to counter it and ensure their inclusion in the socio-economic life of their communities.", "They should recognise that all people with disabilities are entitled to dignity, equal opportunity, their own income, education, employment, acceptance and integration in social life, including accessibility, health care as well as medical and functional rehabilitation.", "They should guarantee that people with disabilities are ensured protection – to at least the same extent as other citizens – in their use of services of all kinds.", "3. Prevention of abuse", "Member States should increase public awareness, promote open discussion, develop knowledge, and improve education and professional training.", "They should encourage cooperation between authorities and organisations in finding measures to prevent abuse, to improve detection and reporting of abuse, and to support the victims.", "They should create, implement and monitor legislation concerning the standards and regulation of professionals and care settings, in order to make abuse of people with disabilities less likely through action taken or through failure to act.", "4. Legal protection", "Member States should ensure access to the criminal justice system and provision of redress and/or compensation to people with disabilities who have been victims of abuse at least to the same extent as other citizens. Where necessary additional assistance should be provided to remove physical and other barriers for people with disabilities.", "People with disabilities are applicants under civil law whose rights should be safeguarded. Member States should therefore ensure that professionals working within the criminal justice system treat people with disabilities without discrimination and in such a way as to guarantee them equality of opportunity in the exercise of their rights as citizens.", "...”", "B. Parliamentary Assembly", "78. The relevant parts of Resolution 1642 (2009) of the Parliamentary Assembly on access to rights for people with disabilities and their full and active participation in society (adopted on 26 January 2009) read as follows.", "“1. More than one person in every 10 suffers from some form of disability, representing a total of 650 million people worldwide, with an even greater ratio of up to 200 million in Europe alone. There is a correlation between age and disability: as the population ages and health care improves, the number of people with disabilities in Europe grows, and it will continue to grow.", "2. The Parliamentary Assembly recalls that the Council of Europe’s European Convention on Human Rights (ETS No. 5) protects all people, including those with disabilities, and that Article 15 of the revised European Social Charter (ETS No. 163) explicitly guarantees people with disabilities the effective exercise of the right to independence, social integration and participation in the life of the community. A more recent and eagerly awaited text, the United Nations Convention on the Rights of Persons with Disabilities, came into force with effect from 3 May 2008. The Assembly welcomes this text, which gives a detailed description of the rights of people, including children, with disabilities, and will certainly contribute to the change of perception needed to improve the situation of people with physical or mental disabilities.", "3. The Assembly notes that, in practice, the access of people with physical or mental disabilities to their rights on an equal basis with those of people without disabilities frequently remains wishful thinking and proves inadequate. It therefore welcomes the preparation by the Council of Europe of the Disability Action Plan to promote the rights and participation of people with disabilities in society for 2006-2015 (Recommendation Rec(2006)5 of the Committee of Ministers), which endeavours to find practical responses to the most serious and most common problems encountered by people with disabilities, to foster equality of opportunities, and which advocates a number of measures to improve the situation of people with disabilities in all aspects of everyday life.", "...", "18. Whereas the attitude of society, prejudice and fixed mindsets remain the main obstacle to the access to rights for people with disabilities and their full and active participation in society, the Assembly invites member States to:", "18.1. step up their campaigns drawing public attention to, and providing information about, disability-related issues;", "18.2. take legal action against and penalise discriminatory practices and unacceptable attitudes towards people with disabilities, especially abuse, committed either by isolated individuals or in health-care establishments;", "18.3. disseminate examples of good practices in all spheres of everyday life, so as to make clearer − to all, and particularly to young people − the scope of this question in civil society, the working environment and the world of education;", "18.4. ensure the full and active participation of people with disabilities in all of these processes.", "...”", "i. to nurture receptiveness to the rights of persons with disabilities;", "ii. to promote positive perceptions and greater social awareness towards persons with disabilities;", "iii. to promote recognition of the skills, merits and abilities of persons with disabilities, and of their contributions to the workplace and the labour market;", "b. Fostering at all levels of the education system, including in all children from an early age, an attitude of respect for the rights of persons with disabilities;", "c. Encouraging all organs of the media to portray persons with disabilities in a manner consistent with the purpose of the present Convention;", "d. Promoting awareness-training programmes regarding persons with disabilities and the rights of persons with disabilities.”", "Article 15 – Freedom from torture or cruel, inhuman or degrading treatment or punishment", "“1. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his or her free consent to medical or scientific experimentation.", "2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.”", "Article 16 – Freedom from exploitation, violence and abuse", "“1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects.", "2. States Parties shall also take all appropriate measures to prevent all forms of exploitation, violence and abuse by ensuring, inter alia, appropriate forms of gender- and age-sensitive assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognize and report instances of exploitation, violence and abuse. States Parties shall ensure that protection services are age-, gender- and disability-sensitive.", "3. In order to prevent the occurrence of all forms of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities.", "4. States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services. Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person and takes into account gender- and age-specific needs.", "5. States Parties shall put in place effective legislation and policies, including women- and child-focused legislation and policies, to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.”", "Article 17 – Protecting the integrity of the person", "“Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.”" ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Constitution", "1. Relevant provisions", "61. The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum) and 76/2010) read as follows.", "Article 14", "“Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.", "All shall be equal before the law.”", "Article 21", "“Every human being has the right to life.", "...”", "Article 23", "“No one shall be subjected to any form of ill-treatment ...", "...”", "Article 35", "“Everyone has the right to respect for and legal protection of his or her private and family life, dignity, reputation and honour.”", "Article 140", "“International agreements in force which were concluded and ratified in accordance with the Constitution and made public shall be part of the internal legal order of the Republic of Croatia and shall have precedence in terms of their legal effects over the [domestic] statutes. ...”", "2. The Constitutional Court’s jurisprudence", "62. In its decisions nos. U-I-892/1994 of 14 November 1994 (Official Gazette no. 83/1994) and U-I-130/1995 of 20 February 1995 (Official Gazette no. 112/1995) the Constitutional Court held that all rights guaranteed in the Convention and its Protocols were also to be considered constitutional rights having equal legal force to the provisions of the Constitution.", "B. The Criminal Code", "63. The relevant part of the Criminal Code ( Kazneni zakon, Official Gazette no. 110/1997) reads as follows:", "Article 10", "“Criminal legislation is not applicable in respect of a child who at the time when he or she committed a criminal offence was not yet 14.”", "C. The Minor Offences Act", "64. The relevant part of the Minor Offences Act ( Prekršajni zakon, Official Gazette no 107/2007) reads as follows:", "Section 9", "“(1) A person who at the time when a minor offence was committed was not yet 14 is not liable for the minor offence.", "(2) When a person under subsection 1 of this section frequently behaves in a manner which amounts to serious minor offences, the State body competent to act shall inform that person’s parents or guardians and the competent social welfare centre of the person’s behaviour.", "(3) A parent of ... a person to whom subsection 1 of this section applies shall be punished for a minor offence committed by that person where the minor offence committed is directly connected to failure to supervise that person ...”", "D. The Administrative Disputes Act", "65. The Administrative Disputes Act ( Zakon o upravnim sporovima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and Official Gazette of the Republic of Croatia nos. 53/1991, 9/1992 and 77/1992 – in force until 31 December 2011) in its relevant part provided as follows:", "Section 66", "“A request for the protection of a constitutionally guaranteed right or freedom ... if such a right or freedom has been violated by a final individual act [that is, decision], and no other judicial protection is secured, shall be decided by the [Administrative Court], by applying, mutatis mutandis, the provisions of this Act.”", "66. Sections 67 to 76 provide for special proceedings for the protection of constitutionally guaranteed rights and freedoms from unlawful factual (physical) acts of public officials where no other judicial remedy is available. Under the case-law of the domestic courts, the protection against unlawful “acts” also includes omissions (for example, the Administrative Court, in its decision no. Us-2099/89 of 21 September 1989, and the Supreme Court, in its decision no. Gž-9/1993 of 6 April 1993, held that failure of the administrative authorities to carry out their own enforcement order constituted an “unlawful act” within the meaning of section 67 of the Administrative Disputes Act).", "67. Under section 67 such proceedings are to be instituted by bringing an “action against an unlawful act” ( tužba za zaštitu od nezakonite radnje ) in the competent municipal court. The action must be brought against the public authority to which the factual act (or omission) is imputable (the defendant).", "68. Under section 72 the action is to be forwarded to the public authority concerned for a reply within the time-limit set by the court conducting the proceedings. However, a decision may be adopted even without such a reply where the submissions made in the action provide a reliable basis for the decision.", "69. Section 73 provides that the court decides on the merits of the case by a judgment. If it finds in favour of the plaintiff, the court orders the defendant to desist from the unlawful activity and, if necessary, orders restitutio in integrum.", "70. Section 74 provides that in proceedings following an “action against an unlawful act” the court is to apply, mutatis mutandis, the provisions of the Civil Procedure Act.", "E. The Civil Obligations Act", "71. The relevant part of the Civil Obligations Act ( Zakon o obveznim odnosima, Official Gazette nos. 35/2005 and 41/2008), which came into force on 1 January 2006 and abrogated the former 1978 Obligations Act, reads as follows:", "Rights of personalitySection 19", "“(1) All natural persons or legal entities are entitled to the protection of their rights of personality [ prava osobnosti ] under the conditions provided by law.", "(2) Rights of personality within the meaning of this Act are the right to life, to physical and mental health, reputation, honour, dignity, name, privacy of personal and family life, liberty, etc.", "(3) A legal entity shall have all the above-mentioned rights of personality – apart from those related to the biological character of a natural person – and, in particular, the right to a reputation and good name, honour, name or company name, business secrecy, entrepreneurial freedom, etc.”", "Section 1046", "“Damage is ... an infringement of rights of personality (non-pecuniary damage).”", "Request to desist from violating rights of personalitySection 1048", "“Anyone may request a court or other competent authority to order the cessation of an activity which violates his or her rights of personality and the elimination of its consequences.”", "The relevant case-law", "72. As to which rights of natural persons, apart from those enumerated in section 19 of the Civil Obligations Act, are to be considered rights of personality, it should be noted that only the following have so far been interpreted as rights of personality by the Croatian courts: the right to life, the right to physical and mental integrity (health), the right to liberty, the right to reputation and honour, the right to privacy of personal and family life, the right to secrecy of letters and personal manuscripts, the right to personal identity (in particular, the rights to one’s image, voice and name) and the moral rights of authors.", "73. The relevant part of the Constitutional Court’s decision no. U ‑ III ‑ 1437/2007 of 23 April 2008, concerning the right to compensation in respect of rights of personality, reads as follows:", "“...", "Section 1046 of the Civil Obligations Act defines non-pecuniary damage as an infringement of rights of personality. In other words, any infringement of rights of personality amounts to non-pecuniary damage.", "Section 19(2) of the Civil Obligations Act defines rights of personality for the purposes of that Act as: the right to life, physical and mental health, reputation, honour, respect for one’s dignity and name, privacy of personal and family life, freedom and other aspects.", "... [I]t is to be concluded that in this case there has been a violation of human, constitutional and personal values because the applicant was in prison conditions which were incompatible with the standards prescribed by the Enforcement of Prison Sentences Act and also with the legal standards under Article 25 § 1 of the Constitution. For that reason the courts are obliged to award compensation for the infringement of the applicant’s dignity.", "...”", "F. The Prevention of Discrimination Act", "74. The relevant part of the Prevention of Discrimination Act ( Zakon o suzbijanju diskriminacije, Official Gazette no. 85/2008) reads as follows.", "Section 1", "“(1) This Act ensures protection and promotion of equality as the highest value of the constitutional order of the Republic of Croatia; creates conditions for equal opportunities and regulates protection against discrimination on the basis of race or ethnic origin or skin colour, gender, language, religion, political or other conviction, national or social origin, state of wealth, membership of a trade union, education, social status, marital or family status, age, health, invalidity, genetic inheritance, gender identity, expression or sexual orientation.", "(2) Discrimination within the meaning of this Act means putting any person in a disadvantageous position on any of the grounds under subsection 1 of this section, as well as his or her close relatives.", "...”", "Section 8", "“This Act shall be applied in respect of all State bodies ... legal entities and natural persons ...”", "Section 16", "“Anyone who considers that, owing to discrimination, any of his or her rights has been violated may seek protection of that right in proceedings in which the determination of that right is the main issue, and may also seek protection in separate proceedings under section 17 of this Act.”", "Section 17", "“A person who claims that he or she has been a victim of discrimination in accordance with the provisions of this Act may bring a claim and seek:", "(1) a ruling that the defendant has violated the plaintiff’s right to equal treatment or that an act or omission by the defendant may lead to the violation of the plaintiff’s right to equal treatment (claim for an acknowledgment of discrimination);", "(2) a ban on (the defendant’s) undertaking acts which violate or may violate the plaintiff’s right to equal treatment or an order for measures aimed at removing discrimination or its consequences to be taken (claim for a ban or for removal of discrimination);", "(3) compensation for pecuniary and non-pecuniary damage caused by the violation of the rights protected by this Act (claim for damages);", "(4) an order for a judgment finding a violation of the right to equal treatment to be published in the media at the defendant’s expense.", "...”", "III. RELEVANT COUNCIL OF EUROPE DOCUMENTS", "A. Committee of Ministers", "75. The relevant parts of Recommendation Rec(2004)10 of the Committee of Ministers to member States concerning the protection of the human rights and dignity of persons with mental disorder (adopted by the Committee of Ministers on 22 September 2004 at the 896th meeting of the Ministers’ Deputies) read as follows.", "“...", "Having regard, in particular:", "– to the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and to its application by the organs established under that Convention;", "...", "Chapter II – General provisionsArticle 3 – Non-discrimination", "1. Any form of discrimination on grounds of mental disorder should be prohibited.", "2. Member States should take appropriate measures to eliminate discrimination on grounds of mental disorder.", "Article 4 – Civil and political rights", "1. Persons with mental disorder should be entitled to exercise all their civil and political rights.", "2. Any restrictions to the exercise of those rights should be in conformity with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms and should not be based on the mere fact that a person has a mental disorder.", "...", "Article 7 – Protection of vulnerable persons with mental disorders", "1. Member States should ensure that there are mechanisms to protect vulnerable persons with mental disorders, in particular those who do not have the capacity to consent or who may not be able to resist infringements of their human rights.", "2. The law should provide measures to protect, where appropriate, the economic interests of persons with mental disorder.", "...”", "76. The relevant parts of Recommendation Rec(2006)5 of the Committee of Ministers to member States on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006-2015 (adopted by the Committee of Ministers on 5 April 2006 at the 961st meting of the Ministers’ Deputies) read as follows.", "“...", "Bearing in mind the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5);", "...", "3.12. Action line No. 12: Legal protection", "3.12.1. Introduction", "People with disabilities have the right to recognition everywhere as persons before the law. When assistance is needed to exercise that legal capacity, member States must ensure that this is appropriately safeguarded by law.", "Persons with disabilities constitute a varied population group, but all have in common, to a greater or lesser extent, the need for additional safeguards in order to enjoy their rights to the full and to participate in society on an equal basis with other members.", "The need to focus particular attention on the situation of persons with disabilities, in terms of the exercise of their rights on an equal basis with others, is confirmed by the initiatives taken in this area at national and international level.", "The principle of non-discrimination should be the basis of government policies designed to deliver equality of opportunity for people with disabilities.", "Access to the legal system is a fundamental right in a democratic society but people with disabilities can often face a number of barriers, including physical access difficulties. This requires a range of measures and positive actions, including general awareness raising among the legal professions about disability issues.", "3.12.2. Objectives", "iii. to promote training on human rights and disability (both national and international) for law enforcement personnel, public officials, judiciary and medical staff;", "iv. to ensure that disabled victims of violence and abuse, including domestic, have access to the relevant support services, including redress;", "v. to prevent and combat violence, ill-treatment and abuse in all situations by supporting families, raising public awareness and education, promoting discussion and co-operation among relevant parties;", "viii. to ensure that relevant training is provided to all staff working in disability-specific institutional settings and mainstream support services;", "IV. RELEVANT UNITED NATIONS MATERIALS", "79. The relevant parts of the Convention on the Rights of Persons with Disabilities (which was ratified by Croatia in August 2007 and came into force on 3 May 2008) read:", "Article 1 – Purpose", "“The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.", "Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”", "Article 4 – General obligations", "“1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake:", "a. to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention;", "b. to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;", "c. to take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes;", "d. to refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention;", "e. to take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise;", "...”", "Article 5 – Equality and non-discrimination", "“1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.", "2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.", "3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.", "4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.”", "Article 8 – Awareness-raising", "“1. States Parties undertake to adopt immediate, effective and appropriate measures:", "a. to raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities;", "b. to combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life;", "c. to promote awareness of the capabilities and contributions of persons with disabilities.", "Measures to this end include:", "a. Initiating and maintaining effective public awareness campaigns designed:", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 2, 3 AND 8 OF THE CONVENTION", "80. The applicants complained that the State authorities had not given them adequate protection from harassment by children from their neighbourhood. They relied on Articles 2, 3 and 8 of the Convention, the relevant parts of which read as follows:", "Article 2", "“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "...”", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 8", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "1. The parties’ submissions", "(a) The Government’s submissions", "81. The Government maintained that Articles 2 and 3 were not applicable to the circumstances of the present case. As regards Article 2, they argued that the applicants’ lives had never been put at risk in any way. As regards Article 3 of the Convention, the Government submitted that the requisite level of severity had not been reached since the harassment complained of had mostly been verbal while the injuries the first applicant had sustained on 4 April 2009 had been of a mild nature. They also submitted that the fact that the first applicant had expressed a wish to walk around showed that he had not been traumatised by the events in issue.", "82. The Government also argued that the applicants had not exhausted all available domestic remedies. In the Government’s view the applicants should have brought a civil action for damages against the children concerned and their parents and also against the school the children were attending, or other authorities. Furthermore, they could have instituted minor-offences proceedings against the children’s parents. They could also have brought an “action against an unlawful act” against the relevant authorities under the Administrative Disputes Act. In the proceedings instituted upon such an action the competent court was obliged to act urgently. In a judgment upholding the action, the court would forbid any further unlawful act. The judgment had to be enforced within three days after it had been served on the parties.", "83. As regards the events of 10 April and 13 May 2010, the Government submitted that the alleged perpetrators, P.B. and Z.B., were 14 at the time and that they could be held criminally responsible. Since the criminal inquiry was still ongoing, any complaint relating to these incidents was premature.", "(b) The applicants’ submissions", "84. The applicants maintained in reply that they had been submitted to ongoing harassment which also included acts of physical violence against the first applicant and verbal violence against both applicants. Such harassment had disrupted their daily lives and caused them a significant level of constant stress and suffering, in particular in view of the first applicant’s medical condition. They argued that the ongoing pattern of harassment and abuse met the requisite intensity standard under Articles 3 and 8 of the Convention and that Article 2 of the Convention was also applicable given the escalation of violence against the first applicant in view of his extreme vulnerability and also in view of the likelihood, as demonstrated by research on disability hate crime, of low-level harassment turning into full-scale violence if left unchecked, possibly resulting in extreme circumstances in death or severe ill-treatment.", "85. As to the exhaustion of domestic remedies, they argued that the domestic legal system did not provide any remedies affording redress in respect of disability hate crime; this was supported by the fact that the Government had not submitted any relevant case-law to support their assertions as to the availability and efficiency of the remedies they relied on.", "86. As regards the possibility of bringing an action against the authorities on account of an unlawful act under section 67 of the Administrative Disputes Act, the applicants maintained that the admissibility requirements for that remedy – for example, that the unlawful act had to amount to a violation of the Constitution, that the remedy should be the last resort, and that the unlawful activity was ongoing at the time when the action was brought – made it ineffective in the case in issue.", "87. As regards a possible civil action for damages against the parents of the children involved, the applicants argued that the Court had already held in cases against Croatia that effective deterrence against attacks on the physical integrity of a person required efficient criminal-law mechanisms that would have ensured adequate protection in that respect (they cited Sandra Janković v. Croatia, no. 38478/05, § 36, 5 March 2009).", "88. As regards minor-offences proceedings, the applicants submitted that they applied only to minor offences against public peace and order and that therefore such a remedy was clearly inadequate in respect of the harm done to the applicants’ physical and psychological integrity.", "89. As regards the Government’s contention that the application was premature in respect of the events of 10 April and 13 May 2010 since the investigation into those events was still ongoing, the applicants replied that they had never received any official information that any investigation into the matter had been instituted and that in any event there had been unjustified delays in the conduct of the authorities. Furthermore, the investigation concerned isolated incidents and not the applicants’ situation as a whole.", "2. The Court’s assessment", "(a) The applicability of Articles 2, 3 and 8 of the Convention to the circumstances of the present case", "(i) In respect of the first applicant", "90. The Court takes note of repeated incidents of violent behaviour towards the first applicant. The facts in issue concern frequent episodes of harassment in the period between 31 July 2008 and February 2011, amounting to about two and half years. The incidents concerned both verbal and physical harassment, including violent acts such as burning the first applicant’s hands with cigarettes, pushing him against an iron fence and hitting him with a ball. In view of the fact that all the incidents in the present case concerned a series of acts by a group of children and occurred over a prolonged period of time, the Court will examine them as a continuing situation.", "91. The Court notes further that the incidents of harassment of the first applicant by children living in his neighbourhood and children attending a nearby primary school are well documented by, inter alia, police reports and medical reports. The latter show the adverse impact that these incidents have had on his physical and mental health. The reports concerning the first applicant indicate that he is suffering from serious mental disorders, but is a peaceful and benign individual who cannot and does not know how to defend himself from his abusers. Owing to the continued harassment against him, he has had to undergo psychotherapy, has often been scared and is under stress. His removal from the situation of harassment was recommended.", "92. The first applicant made credible assertions that over a prolonged period of time he had been exposed to threats to his physical and mental integrity and had actually been harassed or attacked on a number of occasions.", "93. In view of these facts, the Court considers that the State authorities had a positive obligation to protect the first applicant from the violent behaviour of the children involved. This obligation in the circumstances of the present case arises both under Articles 3 and 8 of the Convention. In the circumstances of the case the Court considers, however, that it suffices to analyse the first applicant’s complaints from the standpoint of Article 3 of the Convention only.", "94. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Costello-Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247-C, and A. v. the United Kingdom, 23 September 1998, § 20, Reports of Judgments and Decisions 1998 ‑ VI).", "95. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV). Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance (see Hurtado v. Switzerland, 28 January 1994, opinion of the Commission, § 67, Series A no. 280-A, and Wieser v. Austria, no. 2293/03, § 36, 22 February 2007).", "96. The Court considers that the harassment of the first applicant – which on at least one occasion also caused him physical injuries, combined with feelings of fear and helplessness – was sufficiently serious to reach the level of severity required to fall within the scope of Article 3 of the Convention and thus make this provision applicable in the present case (see Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII, and Milanović v. Serbia, no. 44614/07, § 87, 14 December 2010).", "(ii) In respect of the second applicant", "97. As regards the second applicant, the Court notes that she has not been exposed to any form of violence affecting her physical integrity. However, there is no doubt that the continued harassment of the first applicant – her disabled son, of whom she has been taking care – and the incidents of harassment which also concerned her personally, even in their milder forms, caused disruption to her daily life and her routines, which had an adverse effect on her private and family life. Indeed, the moral integrity of an individual is covered by the concept of private life. The concept of private life extends also to the sphere of the relations of individuals between themselves.", "98. It follows that Article 8 is applicable to the circumstances of the present case as regards the complaints concerning the second applicant.", "(b) Exhaustion of domestic remedies", "99. The Court points out that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. The rule of exhaustion of domestic remedies referred to in Article 35 of the Convention requires that normal recourse should be had by an applicant only to remedies that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see Selmouni v. France [GC], no. 25803/94, §§ 74-75, ECHR 1999 ‑ V).", "100. Article 35 provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the complaints invoked and offered reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports 1996 ‑ IV).", "101. The Court would emphasise that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism (see Cardot v. France, 19 March 1991, § 34, Series A no. 200). It has further recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case (see Van Oosterwijck v. Belgium, 6 November 1980, § 35, Series A no. 40). This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see Akdivar and Others, cited above, § 69).", "102. As regards the present case, the Court notes that the Government suggested that the applicants should have brought a civil action in damages against the parents of the children implicated in the acts of harassment and violence against the first applicant, adding that they also had the possibility of instituting minor-offences proceedings against the parents of these children.", "103. In this connection, the Court notes that what is at stake in the present case is not the individual responsibility of the parents of the children involved but the alleged lack of an adequate response by the competent State authorities to the repeated acts of harassment and violence by children who, on account of their young age, cannot be criminally prosecuted under the national law.", "104. As regards the Government’s contention that the application was premature because the children P.B., Z.B. and I.S., who had allegedly been involved in the events of 10 April and 13 May 2010, were 14 at the time and were therefore criminally liable, the Court firstly reiterates that individual criminal responsibility is not at issue in the present case. In any event, the incidents concerned took place in April and May 2010 and the Government have failed to show that any further steps were taken in addition to the police interviews conducted in July, August and September 2010 with the children in question.", "105. However, some further remedies referred to by the Government call for an assessment of their effectiveness in the particular circumstances of the present case. The Court notes that sections 67 to 76 of the Administrative Disputes Act provide for an “action against an unlawful act” (see paragraphs 66 and 67 above), a judicial remedy open to anyone who considers that his or her rights or freedoms guaranteed by the Constitution have been violated by a public authority and that no other judicial remedy is available. This remedy and the remedy available under section 66 of the same Act against a “final individual act” (see paragraph 65 above) represent remedies of last resort, to be used in the absence of any other judicial protection, against decisions or other (factual) acts or omissions by public authorities that are capable of violating constitutionally guaranteed rights or freedoms. The rationale behind those remedies is that constitutional rights and freedoms are so precious that they cannot be left unprotected by the courts.", "106. The Court also notes that the right not to be ill-treated and the right to respect for one’s private and family life are both guaranteed by the Croatian Constitution. Furthermore, the relevant case-law of the national courts shows that an action of this nature may also be brought in a situation of an omission to act, such as in the present case, where the applicants alleged that the national authorities had failed to take appropriate steps. However, certain issues arise as regards the effectiveness of such an action in the circumstances of the present case.", "107. Firstly, the Government did not indicate which authority could be held responsible for a failure to take adequate measures. Since the remedy in issue is an “action against an unlawful act” (or omission), it is necessary to establish which body had a duty to act and on the basis of which law. Furthermore, an action in respect of an omission to act may only be brought against an individual public official who had a duty to act with a basis in law. It would be difficult in the present case to name an individual official who had such a duty. The Government, moreover, made no submissions in that respect. The Court notes in this connection that one aspect of the applicants’ complaint was that no State authority was obliged by law to take any measures in the situation complained of.", "108. An action of this nature under the Administrative Disputes Act would entail the institution of proceedings in the ordinary civil courts. The Government have not indicated that the application of any kind of interim measures would be possible in such proceedings. However, the situation complained of by the applicants shows that they were continually harassed, at times almost on a daily basis, and the essence of their complaints lies in the fact that the national authorities, although aware of that situation, failed to take appropriate measures to prevent further harassment. Thus, the situation called for an immediate reaction by the State authorities. The Government have not shown that any of the remedies referred to by them could be capable of leading to such an immediate response to the situation of harassment.", "109. Thus, regarding an “action against an unlawful act” and a civil action for damages against the State under the Civil Obligations Act, the Government have not shown that these remedies would have been capable of leading to the prompt and appropriate measures that were necessary in the circumstances of the present case.", "110. At this juncture the Court reiterates that the rationale behind the requirement of the exhaustion of domestic remedies is the subsidiary nature of the Convention instruments, that is to say, the principle that the national authorities must first be given the opportunity to remedy the violation complained of. In this connection the Court notes that the second applicant repeatedly complained about the ongoing harassment to various national authorities, such as the police and the State Attorney’s Office, the competent social welfare centre and the school the children concerned attended. The Court considers that she thus gave the relevant authorities adequate opportunity to react to her allegations and put an end to the harassment complained of. She has therefore exhausted the available domestic remedies.", "111. Furthermore, the applicants alleged deficiencies in the national system for the protection of persons with disabilities from acts of harassment and violence, including the legal framework within which the competent authorities are to operate and the mechanisms provided for. In this connection the Court notes that the Government have not shown that these issues could have been examined in any of the types of proceedings they relied on.", "112. It follows that the applicants were not required to avail themselves also of the remedies suggested by the Government. In reaching this conclusion, the Court has taken into consideration the specific circumstances of the present case, as well as the fact that a right as fundamental as the right not to be subjected to inhuman and degrading treatment is at stake and that the Convention is intended to guarantee rights that are not theoretical or illusory, but rights that are practical and effective (see, for example, Matthews v. the United Kingdom [GC], no. 24833/94, § 34, ECHR 1999-I). Accordingly, the Government’s objection has to be dismissed.", "(c) Conclusion", "113. The Court finds that the complaints under Articles 3 and 8 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further finds that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "(a) The applicants’ submissions", "114. The applicants firstly addressed the issue of violence against the first applicant as a disability hate crime. Studies relating to that issue showed that the rate of abuse and violence committed against persons with disabilities was considerably higher than the rate for the general population and was widespread. The most common forms of violence against people with intellectual disabilities were kicking, biting, name-calling, teasing, stealing, pushing, threatening, throwing objects at them, telling them to leave a building, hitting, shouting at them, swearing, demanding money, hair-pulling, throwing stones, spitting, poking, punching, beating and banging their head against a wall. People with disabilities frequently experienced violence on an ongoing basis perpetrated by the same people. Abuse was often perpetrated by gangs of youths who targeted the same person systematically, as in the present case.", "115. Harassment against disabled persons was usually motivated by a perception of such persons as inferior. Violence and hostility might have wide-ranging consequences, including emotional, physical and sexual implications, or even the death of the victim. People with disabilities might be forced to restructure their daily lives in order to avoid risk.", "116. In their submissions, the applicants also relied on the international sources cited above, in particular the United Nations Convention on the Rights of Persons with Disabilities and the obligations stemming from it.", "117. The applicants submitted that they had been subjected to ongoing harassment and abuse for a period of over five years by a group of mostly unidentified children on account of their Serbian origin and the first applicant’s disability. The harassment had consisted mostly of verbal abuse and other forms of anti-social behaviour such as spitting, making noise, drawing insulting messages on the pavement, and causing damage to the applicants’ place of residence. It had caused the applicants intense suffering. Besides the physical harm resulting from the incidents mentioned above, the ongoing harassment had taken a very significant toll on the first applicant’s mental well-being as documented by his psychotherapist.", "118. In addition, the applicants had had to change their daily routines. Daily walks in the park, sitting on a bench in the park and talking to people were crucial for the first applicant to develop an independent lifestyle and a sense of inclusion in the community. Because of the constant harassment by children from his neighbourhood, the first applicant had had to stop all these activities.", "119. Relying extensively on the Court’s case-law as regards the State’s positive obligations under Articles 3 and 8 of the Convention, the applicants argued that the relevant State authorities had been under a duty to take positive measures to protect them from harm perpetrated by third parties. The second applicant had repeatedly informed the authorities of the abuse to which the applicants had been exposed but the authorities had largely failed to take any action to prevent ill-treatment from recurring. The authorities had thus been aware that the harassment against the first applicant had followed the same pattern.", "120. However, despite their knowledge of the applicants’ situation, the relevant authorities had failed in their duty to put an end to the harassment and abuse. The applicants argued that there had been no clarity as to which authority was competent to address their situation. As to the Government’s contention that the police had reacted adequately to all complaints by the second applicant, they argued that the police had failed to grasp the full extent of the ongoing abuse and to prevent further abuse. The police had failed to identify the perpetrators; they would simply arrive at the scene and warn the children to go away. Such a relaxed approach by the police had failed in its deterrent effect. Furthermore, the police had addressed each instance of abuse as an isolated event, without comprehending the continuing nature of the situation. They had also failed to take any appropriate action, such as instituting minor-offences proceedings against the parents of the children involved.", "121. The competent social welfare centre should have: investigated the case and established the relevant facts; invited the parents of the perpetrators to a meeting in order to establish their personal circumstances; issued protective measures to prevent the violence from recurring; advised or obliged the perpetrators and their parents to attend counselling; monitored the situation; and drawn up reports on the measures taken. However, the Susedgrad Social Welfare Centre had done none of the above. In 2009 it had taken measures against one of the minors involved in the cigarette-burn incident and placed him under the supervision of a social worker and then initiated court proceedings to place him in an institution for children with behavioural problems for a period of one year. However, all that had been done not because of the attack on the first applicant, but owing to the overall behavioural problems of the individual concerned.", "122. As to the authorities of the school the children in question attended, the applicants maintained that although they had been entitled to take a range of disciplinary measures in cases of violent behaviour by pupils, including warnings, reprimands, severe reprimands and expulsion from school, they had failed to take any such measures. It was true, however, that the school authorities had taken some other measures, such as calling on parents and children to make sure that violent behaviour against the applicants ceased and organising meetings to tell pupils about the requirements of people with special needs. They had also facilitated interviews with the pupils concerned. However, these measures had not been capable of preventing further violence against the applicants.", "123. Likewise, none of the other authorities had done much in order to prevent the violence against and harassment of the applicants.", "(b) The Government’s submissions", "124. The Government argued that, save for the incidents reported to the police and documented by the police reports, the applicants had not proved that any further incidents had occurred. The Government submitted that the relevant authorities had taken all appropriate measures to protect the applicants from harassment. Each time the second applicant had called the police, the police had arrived in due time and interviewed the children concerned and warned them about their inappropriate behaviour. Each time a report had been drawn up by the police and sent to the State Attorney’s Office.", "125. The school the children in question attended had also always reacted promptly to the applicants’ allegations of harassment. The school employees had often held discussions with the pupils and their parents about people with special needs. The parents had been told to discuss that issue with their children and the school headmaster had sent a letter to the parents to that effect.", "126. As regards the incident of 4 April 2009, the Government submitted that the national authorities had taken all relevant steps in order to identify the perpetrator. Finally, it had been revealed that I.M. had burnt the first applicant’s hands with a cigarette. Since I.M., as a child below 14 years of age, could not be held criminally responsible, the applicants had been instructed to institute civil proceedings for damages. The competent State Attorney’s Office had informed both the Ombudswoman for Children and the competent social welfare centre of its findings.", "127. As regards the events of 10 April and 13 May 2010, as well as the allegations of constant harassment of the first applicant, the police had interviewed the children P.B., Z.B. and I.S. The inquiry was ongoing and since all of them were already over 14 when the alleged acts had taken place, they could be held criminally responsible.", "128. The Government argued that the above showed that the national authorities had acted promptly and diligently as regards each complaint submitted by the applicants and taken all steps and measures aimed at preventing further harassment. Since June 2010 there had been no further complaints.", "129. The Government further submitted that the parents had a major responsibility in preventing their children from behaving inappropriately. The parents of the children involved had repeatedly been told by the school authorities, as well as the social services, about the problems with their children.", "130. On the other hand, the second applicant as the first applicant’s mother should also bear a certain degree of responsibility in caring for him. It had been established that the first applicant needed help walking and required constant care from his mother. He had also been found to be suffering from epilepsy and was short-sighted. The social services had warned the second applicant not to let him out of the flat alone; heeding this warning would have solved all problems relating to his physical contact with others, and if she had always accompanied him outside, she would have been able to raise the other children’s awareness as regards her son.", "(c) The third-party intervener", "131. The European Disability Forum viewed the issues in the present case through the lens of disability hate crime. It maintained that recognising a hate crime against persons with disabilities represented a challenge for many legal systems since the use of their vulnerability tended to prevent the law-enforcement agencies and courts from identifying the actions as a hate crime. Two separate studies in the United Kingdom had shown that, while people with disabilities were four times more likely than their non-disabled peers to be verbally and physically attacked, they were half as likely to report crimes to the police.", "132. The third-party intervener further argued that hostile behaviour towards persons with disabilities that provoked violent attacks was inherently discriminatory since the victims were chosen because of their visible disability. It argued that the fear of persons with visible disabilities whose appearance was seen as “disturbing and unpleasant” was the dominant reason for violence against persons with disabilities. Such persons were often seen as inferior or responsible for their own condition, which put the burden on society as a whole.", "133. Fear of the “different” was nourished only where the potential victim was perceived as vulnerable. The vulnerability of a disabled person was an opportunity for the offenders to carry out their attacks. This was especially pertinent in cases where persons with disabilities were attacked not for the purpose of robbing them or their property, but to humiliate and hurt their persona.", "134. The European Disability Forum also submitted that the specific recognition of disability hate crime was a recent trend. Relying on Article 5 of the United Nations Convention on the Rights of Persons with Disabilities (cited above), it submitted that that Article confirmed the entitlement of persons with disabilities to protection on an equal basis to others. For the State, this again meant the ability to recognise and address discrimination based on the victim’s disability, and sufficient knowledge about disability to be able to apply the law with respect for the needs of persons with disabilities. In specific cases, observance of the non-discrimination principle might mean recognising the specific situation of persons with disabilities compared with their non-disabled peers. The second paragraph of Article 5 alluded to the obligation of the State to protect persons with disabilities against discrimination on all grounds. Again, meeting this obligation required extensive training of State agents.", "135. The third-party intervener also pointed out that the United Nations Convention obliged the States Parties to “take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities” from being subjected to violence, which also required training of those working in the field of the administration of justice.", "136. In conclusion, the European Disability Forum submitted that, so far, disability hate crime had not received enough attention from law-makers and law-enforcement authorities. This had resulted in a failure to recognise disability hate crime as such, as well as in under-reporting and misunderstanding of that phenomenon. The response of the authorities to this problem should shift from reactive to proactive and be aimed at protecting persons with disabilities from all acts of violence.", "2. The Court’s assessment", "(a) As regards the first applicant", "(i) General principles", "137. The Court reiterates that Article 3 of the Convention must be regarded as one of the most fundamental provisions of the Convention and as enshrining core values of the democratic societies making up the Council of Europe (see Pretty v. the United Kingdom, no. 2346/02, § 49, ECHR 2002-III). In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention (see, inter alia, Chahal v. the United Kingdom, 15 November 1996, § 79, Reports 1996-V).", "138. The Court reiterates that, as regards the question whether the State could be held responsible, under Article 3, for ill-treatment inflicted on persons by non-State entities, the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see, mutatis mutandis, H.L.R. v. France, 29 April 1997, § 40, Reports 1997-III). These measures should provide effective protection, in particular, of children and other vulnerable persons, and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see, mutatis mutandis, Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998-VIII, and E. and Others v. the United Kingdom, no. 33218/96, § 88, 26 November 2002).", "139. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of this positive obligation must, however, be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk of ill-treatment, therefore, can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk of ill-treatment of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Article 8 of the Convention (see Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 53, ECHR 2006-XI; Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, § 96, 3 May 2007; and Milanović, cited above, § 84; see also, mutatis mutandis, Osman, cited above, § 116).", "140. The Court will therefore examine whether the respondent State, in dealing with the first applicant’s case, has been in breach of its positive obligations under Article 3 of the Convention.", "(ii) Application of these principles to the present case", "141. The Court notes at the outset that acts of violence in contravention of Article 3 of the Convention would normally require recourse to the application of criminal-law measures against the perpetrators (see Beganović v. Croatia, no. 46423/06, § 71, 25 June 2009, as regards Article 3, and Sandra Janković, cited above, § 47, as regards Article 8).", "142. However, in the present case most of the alleged perpetrators were children below 14 years of age, against whom, under the national system, it is not possible to apply any criminal-law sanctions. Furthermore, in the specific circumstances in issue, it might be that none of the acts complained of in itself amounts to a criminal offence, but that nevertheless in their entirety the incidents of harassment are incompatible with the requirements of Article 3 of the Convention. Therefore, the present case is to be distinguished from cases concerning the State’s procedural obligations under criminal law in respect of acts of ill-treatment contrary to Article 3 of the Convention, where the State authorities are under a duty to conduct of their own motion a thorough, effective and independent investigation.", "143. The present case concerns the issue of the State’s positive obligations in a different type of situation, outside the sphere of criminal law, where the competent State authorities are aware of a situation of serious harassment and even violence directed against a person with physical and mental disabilities. It concerns the alleged lack of an adequate response to such a situation in order to properly address acts of violence and harassment that had already occurred and to prevent any such further acts.", "144. In line with the above, the Court has examined, firstly, whether the relevant authorities were or should have been aware of the situation of harassment of and violence against the first applicant.", "145. In this connection the Court notes that the documents in the case file show that as early as 31 July 2008 the second applicant informed the police of the ongoing harassment of her son by children from the neighbourhood. She also informed the police of numerous further incidents, including the burning of the first applicant’s hands with cigarettes on 4 April 2009. In April 2009 she informed the Ombudswoman for Persons with Disabilities of the same incident. Between May and July 2009 the police informed the State Attorney’s Office as well as the competent social welfare centre of the alleged abuse against the first applicant and by September 2009 the school authorities had also been duly informed.", "146. In view of the above, the Court is satisfied that the domestic authorities were aware of the ongoing harassment of the first applicant by children from his neighbourhood and children attending a nearby school. The Court will therefore examine whether the relevant authorities took all reasonable steps in the circumstances of the present case to protect the first applicant from such acts.", "147. In the present situation, where incidents of violence have persisted over a certain period of time, the Court finds that the relevant authorities failed to take sufficient steps to ascertain the extent of the problem and to prevent further abuse taking place.", "148. It is true that the police interviewed some of the children allegedly involved in certain incidents and that the school authorities discussed the problem with the pupils and their parents. However, the Court finds that no serious attempt was made to assess the true nature of the situation complained of, and to address the lack of a systematic approach which resulted in the absence of adequate and comprehensive measures. Thus, the findings of the police were not followed by any further concrete action: no policy decisions have been adopted and no monitoring mechanisms have been put in place in order to recognise and prevent further harassment. The Court is struck by the lack of any true involvement of the social services and the absence of any indication that relevant experts were consulted who could have given appropriate recommendations and worked with the children concerned. Likewise, no counselling has been provided to the first applicant in order to aid him. In fact, the Court finds that, apart from responses to specific incidents, no relevant action of a general nature to combat the underlying problem has been taken by the competent authorities despite their knowledge that the first applicant had been systematically targeted and that future abuse was very likely to follow.", "149. In view of this, the Court considers that the competent State authorities have not taken all reasonable measures to prevent abuse against the first applicant, notwithstanding the fact that the continuing risk of such abuse was real and foreseeable.", "150. There has accordingly been a violation of Article 3 of the Convention in respect of the first applicant.", "(b) As regards the second applicant", "(i) General principles", "151. While the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91; Botta v. Italy, 24 February 1998, § 33, Reports 1998 ‑ I; Mikulić v. Croatia, no. 53176/99, § 57, ECHR 2002 ‑ I; and Sandra Janković, cited above, § 44).", "152. The Court has previously held, in various contexts, that the concept of private life includes a person’s psychological integrity. Under Article 8, States have in some circumstances a duty to protect the moral integrity of an individual from acts of other persons. The Court has also held that States have a positive obligation to ensure respect for human dignity and the quality of life in certain respects (see L. v. Lithuania, no. 27527/03, § 56, ECHR 2007-IV, and, mutatis mutandis, Pretty, cited above, § 65).", "(ii) Application of these principles to the present case", "153. The Court considers that the acts of ongoing harassment have also affected the private and family life of the second applicant. It has found that the State authorities have not put in place adequate and relevant measures to prevent further harassment of the first applicant. Likewise, the State authorities have failed to afford adequate protection in that respect to the second applicant. Therefore, there has also been a violation of Article 8 of the Convention in respect of the second applicant.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "154. The applicants further complained that the acts of abuse against them and the response of the competent authorities were also discriminatory, on the basis of their Serbian ethnic origin and the first applicant’s disability. They relied on Article 14 of the Convention, which provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Admissibility", "1. The parties’ submissions", "155. The Government argued that the applicants could have brought a claim pursuant to the Prevention of Discrimination Act, by which they would have been able to seek an acknowledgment of any possible discrimination as set out in that Act, an order for the removal of the discrimination and its consequences, as well as compensation.", "156. The applicants contended in reply that proceedings under the Prevention of Discrimination Act did not constitute an effective remedy because they could not address the particular situation complained of. Furthermore, they claimed that two years after that Act had been passed, there was no relevant case-law showing either that citizens had felt confident about instituting proceedings pursuant to the Act, or that the proceedings that had been instituted had progressed with adequate speed.", "2. The Court’s assessment", "157. As regards Article 14 of the Convention, the Court reiterates that it has no independent existence, but plays an important role by complementing the other provisions of the Convention and its Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions (see Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 53, ECHR 2005-XII). Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, for example, Van Buitenen v. the Netherlands, no. 11775/85, Commission decision of 2 March 1987, unreported, and Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 86, ECHR 2000 ‑ VII).", "158. The Court has also held that even in a situation where the substantive provision is not applicable, Article 14 may still be applicable (see Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 58, 9 December 2010). Consequently, admissibility issues concerning Article 14 may be assessed separately.", "159. As to the present case, the Court will examine under Article 14 the issue of exhaustion of domestic remedies in relation to the Prevention of Discrimination Act. In this connection the Court notes that it has already examined the issue of exhaustion of domestic remedies as regards a discrimination complaint separately from the exhaustion issues concerning the main complaint (see Valkov and Others v. Bulgaria, nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05, §§ 104-08, 25 October 2011). This approach goes hand in hand with the principle that where a substantive Article of the Convention or its Protocols has been relied on both on its own and in conjunction with Article 14 and a separate breach has been found of the substantive Article the Court may not always consider it necessary to examine the case under Article 14 as well, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Dudgeon, cited above, § 67; Chassagnou and Others, cited above, § 89; and Timishev, cited above, § 53).", "160. As regards the present case, the Court notes that the Prevention of Discrimination Act contains specific reference to discrimination based on health condition and invalidity, as well as on ethnic origin (see section 1 of the Act). It provides for a range of remedies, including the acknowledgment of discrimination, a ban on discriminatory acts and compensation for damage. Remedies may also be used against the national authorities in the event of their alleged failure to take action (see paragraph 74 above).", "161. Protection against discrimination is to be sought before the ordinary courts, and an appeal against the first-instance judgment is provided for, as well as a constitutional complaint. The right not to be discriminated against is also guaranteed by the Croatian Constitution, and the Convention is directly applicable in Croatia. In order to comply with the principle of subsidiarity, applicants, before bringing their complaints before the Court, have first to afford the national courts the opportunity of remedying their situation and addressing the issues they wish to bring before the Court.", "162. Against the above background, the Court considers that an action pursuant to the provisions of the Prevention of Discrimination Act represents an effective domestic remedy and that proper use of that remedy could have led to an acknowledgment of the violation alleged and an award of damages. In the event that the applicants’ claim was not successful before the ordinary courts, they would have been able to lodge a constitutional complaint and have their complaints examined by the Constitutional Court as well. However, the applicants failed to make use of the remedies available to them.", "163. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "164. The applicants alleged that they had no effective remedy in respect of their complaints under the Convention. They relied on Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. Admissibility", "1. As regards the applicants’ complaints under Articles 3 and 8 of the Convention", "165. The Court notes that this complaint is linked to the one examined above under Articles 3 and 8 of the Convention and must therefore likewise be declared admissible.", "2. As regards the applicants’ complaint under Article 14 of the Convention", "166. The Court has already established that in respect of their complaint under Article 14 of the Convention, the applicants had at their disposal an effective remedy – an action pursuant to the provisions of the Prevention of Discrimination Act – which they failed to use. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "B. Merits", "167. The applicants argued that they had no effective remedy by which to obtain protection against acts of harassment and violence. The Court notes that the Government suggested a number of remedies allegedly at their disposal in that connection. However, the Court has established that none of the remedies referred to by the Government could have addressed the applicants’ situation in connection with their complaints under Articles 3 and 8 of the Convention.", "168. Therefore, the Court considers that the applicants had no effective remedy available in respect of their complaints under Articles 3 and 8 of the Convention. Accordingly, there has been a violation of Article 13 in that respect.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "169. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "170. The applicants claimed 10,000 euros (EUR) each in respect of non-pecuniary damage.", "171. The Government deemed the amount claimed excessive and unsubstantiated.", "172. Having regard to all the circumstances of the present case, the Court accepts that the applicants suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicants jointly EUR 11,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to them.", "B. Costs and expenses", "173. The applicants, who had been granted legal aid under the Council of Europe’s scheme, also claimed EUR 1,206 for the costs and expenses incurred before the domestic courts and EUR 4,997.13 for those incurred before the Court.", "174. The Government submitted that the applicants had not provided the itemised particulars of the claim.", "175. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers that the costs the applicants incurred in connection with the complaints they made before the national authorities about their harassment were essentially aimed at remedying the violation of the Convention rights alleged before the Court, and that these costs may be taken into account in assessing the claim for costs (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 284, ECHR 2006 ‑ V, and Medić v. Croatia, no. 49916/07, § 50, 26 March 2009). Regard being had to the information in its possession and the above criteria, the Court awards the applicants jointly EUR 1,206 for the costs and expenses incurred in the domestic proceedings and EUR 3,500 for those before the Court, less EUR 850 already received by way of legal aid from the Council of Europe, plus any tax that may be chargeable to the applicants on that amount.", "C. Default interest", "176. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant was born in 1949 and lives in Surrey. He has suffered from autism since birth. He is unable to speak and his level of understanding is limited. He is frequently agitated and has a history of self-harming behaviour. He lacks the capacity to consent or object to medical treatment. For over thirty years he was cared for in Bournewood Hospital (“the hospital”), a National Health Service Trust hospital. He was an in-patient at the Intensive Behavioural Unit (“IBU”) of the hospital from its inception in or around 1987. The applicant ’ s responsible medical officer (who had cared for him since 1977) was Dr M. (clinical director of learning disabilities, deputy medical director and consultant psychiatrist for psychiatry of learning disabilities).", "10. In March 1994 he was entrusted on a trial basis to paid carers, Mr and Mrs E. , with whom he successfully resided until 22 July 1997. He was not formally discharged, and the hospital remained responsible for his care and treatment. From 1995 onwards the applicant attended on a weekly basis a day - care centre run by the local authority.", "A. Admission to the hospital – 22 July to 5 December 1997", "11. On 22 July 1997 the applicant was at the day - care centre when he became particularly agitated, hitting himself on the head with his fists and banging his head against the wall. Staff could not contact Mr and Mrs E. and got in touch with a local doctor, who administered a sedative. The applicant remained agitated and, on the recommendation of the local authority care services manager (A. F. ) with overall responsibility for the applicant, he was taken to the accident and emergency unit at the hospital.", "12. At the hospital, the applicant remained agitated and anxious and was received and assessed by Dr P. (acting consultant psychiatrist – learning disabilities services) as being in need of in-patient treatment. He was transferred, with the physical support of two nursing assistants, to the hospital ’ s IBU. He was recorded as making no attempt to leave. Having consulted, Dr P. and Dr M. considered that the best interests of the applicant required his admission for in-patient treatment. Dr M. did consider his committal under the Mental Health Act 1983 (“the 1983 Act”) but concluded that that was not necessary as the applicant was compliant and did not resist admission. The applicant was therefore admitted as an “informal patient”. Dr M. later confirmed (in her submissions in the judicial review proceedings referred to below) that, if the applicant had resisted admission, she would have detained him compulsorily under the 1983 Act as she was firmly of the view that he required in-patient treatment.", "13. Dr M. ’ s personal attendance notes for that day record the reports she had received of extremely disturbed behaviour at the day-care centre on that day and previously; the suggestion by A. F. that the applicant may have been suffering from a cyclical mood disorder and the recommendation that the applicant be assessed to establish any action required; Dr M. ’ s detailed consultation throughout the day with the applicant ’ s local doctor, Dr P. , A. F. , ward staff and other care professionals; the conclusion that, given the escalation of behavioural problems, the applicant required readmission for “thorough investigation and treatment” but that he would not be “sectioned” as he was “quite compliant” and had “not attempted to run away”; the numerous unsuccessful attempts to contact the applicant ’ s carers; and the decision to discourage visits by the applicant ’ s carers as it risked causing them and the applicant distress.", "Her notes for the following day, 23 July 1997, recorded that the applicant was calm, had complied with all care needs and accepted the change without problem; that his carers were “happy with [the] suggestion not to visit for a few days”; and the clinical opinion that, given the reports of escalating behavioural problems and self-harm and the suggestion by A. F. of a cyclical mood disorder, time was needed to observe, assess and administer appropriate treatment. Various tests were proposed to rule out any “organic pathology”. The applicant was to be referred to the psychology and speech therapist for assessment and a care plan was to be drawn up as appropriate “for maintenance purposes on discharge”. His carers were to be made aware of the need not to visit until the team treating the applicant felt confident for them to do so.", "14. In its letter dated 23 July 1997 to the applicant ’ s social worker (copied to Dr P.), the day-care centre enclosed a detailed report of the incident that had occurred the previous day and outlined serious behavioural issues to be considered by the applicant ’ s health care professionals before he could be allowed to return to the day-care centre. It was noted that the applicant ’ s outbursts had increased over the previous few months and that he had been finding it increasingly difficult to cope with his environment and group. A summary of the applicant ’ s behaviour and attendance at the day-care centre between January and July 1997 was also included.", "15. On 18 August 1997 Dr M. prepared a detailed report on the applicant ’ s history, care and progress for the manager (learning disabilities) of the local health authority as a follow-up to their recent discussions regarding the applicant. Dr M. indicated that the hospital was coming to the conclusion that the applicant, as well as being autistic, suffered from a mood disorder, and noted that his discharge at that time would be against medical opinion.", "16. On 22 August 1997 a consultant psychiatrist in learning disabilities (Dr G. ) assessed the applicant at the request of Mr and Mrs E. His report described the applicant as suffering from a severe learning disability, autistic traits and a possible cyclical mood disorder. That psychiatrist recommended further assessment of the applicant in the IBU and better cooperation between the hospital ’ s professional team, the day-care centre and Mr and Mrs E.", "17. On 29 October 1997 the Court of Appeal indicated (see the proceedings detailed below) that the applicant ’ s appeal would be decided in his favour. Accordingly, on that day the applicant was detained in the hospital under section 5(2) of the 1983 Act (following receipt of a notice from a doctor in charge of an in-patient that an application ought to be made for the latter ’ s detention for, inter alia, treatment under section 3 of the 1983 Act, the patient may be detained for up to seventy-two hours to allow for that application to be processed ). On 31 October 1997 the applicant was admitted for treatment as an involuntary patient under section 3 of the 1983 Act (two medical practitioners having recently examined the applicant would have certified his detention for treatment as necessary).", "18. On 2 November 1997 the applicant ’ s carers visited him for the first time since his readmission in July 1997.", "19. On 4 November 1997 the applicant ’ s legal representatives applied for a review of his detention by a Mental Health Review Tribunal (“MHRT”). Legal aid was granted to instruct an independent psychiatrist to prepare a report. The psychiatric report, dated 27 November 1997, was prepared jointly by a consultant psychiatrist and a registrar in the psychiatry of learning disability, both attached to the Department of Psychiatry at the University of Cambridge. The psychiatrists recommended the applicant ’ s discharge because they were of the opinion that his mental disorder was “currently neither of a nature or degree to warrant continued detention in hospital, nor [was] it necessary for his health or safety or for the protection of others”.", "On 4 December 1997 the applicant ’ s representatives applied to the hospital managers for his release (section 23 of the 1983 Act), a meeting of the managers taking less time to convene than a meeting of the MHRT.", "20. The multidisciplinary team responsible for the applicant ’ s care and treatment decided that he had settled enough to be managed at home, and on 5 December 1997 he was released on leave of absence (under section 17 of the 1983 Act) into the care of Mr and Mrs E.", "21. On 9 December 1997 Dr P. prepared a report for the forthcoming managers ’ review meeting. He noted that the applicant ’ s discharge on 5 December 1997 under section 17 of the 1983 Act was to be complemented by weekly psychiatric outpatient follow-up appointments, continued medication and monitoring by a community nurse. Dr P. was hopeful that the community team and their consultant psychiatrist could take over the applicant ’ s care so that he could be formally discharged from the hospital.", "22. On 12 December 1997 the hospital managers decided to formally discharge the applicant to the carers (section 23 of the 1983 Act).", "B. Correspondence between Dr M. and the applicant ’ s carers", "23. The first letter from Dr M. to Mr and Mrs E. after the applicant ’ s admission to the hospital was dated 23 July 1997. Having noted the attempts made to contact them on 22 July 1997, Dr M. outlined in detail what had happened and how the applicant was progressing. Dr M. indicated that, while the aim was to discharge the applicant to them as soon as possible, she was unable to predict the length of his stay as it depended on the completion of all necessary investigations and assessments. Dr M. indicated that visits would be unwise until the hospital staff felt that it would be appropriate, in order to avoid the applicant thinking that he could go home with Mr and Mrs E. following each visit at a time when he was “not clinically fit for discharge”. Dr M. invited Mr and Mrs E. to contact her about meeting her the following week.", "24. Dr M. sent a further detailed update on the applicant ’ s care, assessments and progress to Mr and Mrs E. on 31 July 1997. Having noted Mr and Mrs E. ’ s requests to staff to visit the applicant, Dr M. indicated that the current serious observational assessment would be prejudiced by such visits and suggested that the situation be reviewed the following week. Dr M. pointed out that the applicant was not clinically fit for discharge.", "25. Since Mr and Mrs E. had expressed concerns to staff at the hospital about the applicant ’ s care and treatment, Dr M. sent a long letter to Mr and Mrs E. on 6 August 1997 in which she explained the clinical team ’ s responsibility to provide the applicant with the care and clinical input he required. In particular, Dr M. noted:", "“I would like to take the opportunity to stress, through this correspondence, that we, as a Clinical Team, within the [IBU], are here, primarily to provide the treatment for [the applicant] who was admitted under our care, as an emergency. It would be extremely irresponsible of us not to provide [the applicant] with the care and the clinical input that he deserves and is in need of. His disposal/discharge from within the unit is dependent ... on the Multidisciplinary Clinical Professionals ’ considered views, following their assessment and the work that they intend doing with [the applicant], specifically, in relation to his challenging behaviour and/or mental health needs. As I have stressed, in my earlier correspondence, these things do take time and unfortunately we have to be a little patient to allow the professionals some room and space to carry on with their work in the provision of care ... [The applicant] has been admitted to the [IBU] on an ‘ informal ’ basis and this is not a time-limited admission. I am not sure if you have misunderstood his status and are under the impression that perhaps he was admitted and held under ‘ the Mental Health Act ’. Even then, there is no ‘ one month ’ time - limit, as it all depends on the patient ’ s fitness for discharge ... On behalf of the Clinical Team, I would like to stress that [the applicant] is being treated within the [IBU] and once he is fit for discharge, he will be discharged back to the address from where he was admitted, with a ‘ Treatment Plan ’ which will include all aspects of his care and a ‘ maintenance plan ’ prescribed.”", "Given the ongoing treatment and assessments, it was not possible to specify a discharge date. Dr M. repeated her offer to meet Mr and Mrs E. to discuss the applicant ’ s care.", "26. In a further letter of 2 September 1997, Dr M. confirmed to Mr and Mrs E. that the conclusions drawn from the assessments to date meant, and the recent clinical professionals ’ meeting had decided, that the applicant was to be “fully” referred for care and treatment to the IBU and that his stay was likely to be a long one. She invited Mr and Mrs E. to attend a clinical meeting about the applicant ’ s care and treatment on 18 September 1997 and offered to meet Mr and Mrs E. separately to discuss, inter alia, the subject of visits.", "27. Mr and Mrs E. replied in a letter of 5 September 1997 that they could not agree with the suggested plan for the applicant and would be in touch again prior to the relevant meeting. By a letter dated 16 September 1997, Mr and Mrs E. confirmed that they would not be able to attend the meeting on 18 September 1997 as they were seeking legal advice. Dr M. responded by letter dated 19 September 1997 expressing regret that Mr and Mrs E. felt that their attendance at the clinical meeting could jeopardise the applicant ’ s position. In a separate letter of the same date, Dr M. outlined the results of the clinical meeting, including a recommendation that Mr and Mrs E. visit the applicant once a week, and requested them to contact her to arrange this.", "28. On 20 October 1997 Dr M. reassured Mr and Mrs E. that the subject of them visiting the applicant had been discussed at the hospital at some length and encouraged Mr and Mrs E. to meet her to discuss the applicant ’ s needs.", "29. Detailed behaviour management guidelines were issued on 27 November 1997 by the psychology service of the hospital to, among others, Dr M. , Mr and Mrs E. , the applicant ’ s social worker and other therapeutic services that were to be involved in the applicant ’ s future care. Appendix 1 was a detailed clinical description of the applicant ’ s mental state (autism and a cyclical mood disorder), needs and reactions prepared on the basis of extensive psychiatric and behavioural observations and assessments, with a view to achieving a global approach to his condition, treatment and care. Appendix 2 contained an extremely detailed “communication dictionary” which was designed to enhance communication with the applicant through voice, action and routine. Appendix 3 contained recording charts.", "30. By a letter of 2 December 1997 to the applicant ’ s legal representatives, Dr M. acknowledged receipt of the guidelines of 27 November 1997 (described above) and explained the clinical team ’ s plans regarding the applicant ’ s release on leave of absence in the near future with a view to a possible full discharge at a later date.", "C. The applicant ’ s domestic proceedings", "31. In or around September 1997, the applicant, represented by his cousin and “next friend”, applied for leave to apply for judicial review of the hospital ’ s decision to admit him on 22 July 1997, for a writ of habeas corpus and for damages for false imprisonment and assault ( a technical assault associated with his admission).", "1. The High Court ’ s judgment of 9 October 1997", "32. The High Court refused the application. It found that, although the 1983 Act provided a comprehensive statutory regime for those formally admitted to psychiatric care, section 131(1) of the 198 3 Act preserved the common - law jurisdiction in respect of informal patients. Since the applicant had not been “detained” but had been informally admitted and since the requirements of the common - law principle of necessity had been satisfied, his application was rejected.", "2. The Court of Appeal ’ s judgment of 2 December 1997 ( R v. Bournewood Community and Mental Health NHS Trust, ex parte L. [1998] 2 Weekly Law Reports 764).", "33. Lord Woolf, Master of the Rolls, delivered the principal judgment. On the question of whether the applicant was “detained”, he noted that it was agreed that this was a question of objective fact which did not depend on the presence or absence of consent or knowledge. He considered that a person was detained in law if those who had control over the premises in which he was situated intended that he should not be permitted to leave and had the ability to prevent him doing so. He went on:", "“We do not consider that the [High Court] judge was correct to conclude that [the applicant] was ‘ free to leave ’. We think it is plain that, had he attempted to leave the hospital, those in charge of him would not have permitted him to do so. ... Mr and Mrs E. had looked after [the applicant], as one of the family, for over three years. They had made it plain that they wanted to take him back into their care. It is clear that the hospital was not prepared to countenance this. If they were not prepared to release [the applicant] into the custody of his carers, they were not prepared to let him leave the hospital at all. He was and is detained there.”", "34. Lord Woolf also found that the right to detain a patient for treatment for mental disorder was to be found only in the 1983 Act, the provisions of which applied to the exclusion of the common - law principle of necessity. Section 131 which preserved the right to admit a patient informally applied only to a patient who had the capacity to and did consent to his admission. Since the applicant had been admitted for treatment without his consent and the other formalities required by the 1983 Act, his detention was unlawful:", "“It follows from our judgment that the whole approach of the [hospital] in this case was based on a false premise. It was based on the belief that they were entitled to treat [the applicant] as an in-patient without his consent as long as he did not dissent. That was a wrong approach. They were only allowed to admit him for treatment if they complied with the statutory requirements. ... [W]here [the 1983 Act] covers the situation, no necessity to act outside the statute can arise. The [hospital ’ s] powers to act under the common - law doctrine of necessity can arise only in relation to situations not catered for by [the 1983 Act].”", "35. The Court of Appeal awarded nominal damages and granted leave to appeal to the House of Lords.", "3. The House of Lords ’ judgment of 25 June 1998 ( R v. Bournewood Community and Mental Health NHS Trust, ex parte L. [1999] Appeal Cases 458 ).", "36. The House of Lords granted leave to, among others, the Mental Health Act Commission to intervene in the proceedings. In its submissions to the House of Lords, the Commission outlined the beneficial consequences to patients of the Court of Appeal ’ s conclusion that persons in the applicant ’ s position were “detained” for the purposes of the 1983 Act, which included the application to such persons of the substantive and procedural safeguards of the Act. The Commission also described the survey it had completed since the Court of Appeal ’ s judgment by sending a questionnaire to all National Health Service Trust hospitals (and registered nursing homes). Sixty-two percent of those establishments responded, from which the Commission was able to submit that, if the Court of Appeal ’ s judgment were applied to patients such as the applicant, there would be an additional 22,000 detained patients resident on any one day and an additional 48,000 compulsory admissions per year under the 1983 Act.", "37. The House of Lords gave judgment on 25 June 1998 and unanimously allowed the appeal. Lord Goff (with whom Lords Lloyd and Hope agreed) delivered the principal judgment. Lords Nolan and Steyn also agreed that the appeal should be allowed but for different reasons.", "38. Having considered the drafting history of section 131 of the 1983 Act, Lord Goff disagreed with the Court of Appeal and concluded that section 131 applied to patients who consented as well as to compliant but incapacitated patients. He underlined, however, that the statutory history of the section, which put the matter beyond all doubt, appeared not to have been drawn to the attention of the Court of Appeal and that the Court of Appeal did not have the benefit, as did the House of Lords, of assistance from counsel appearing for the Secretary of State. As to the basis upon which a hospital was entitled to treat, and to care for, patients who were admitted as informal patients under section 131(1) but lacked the capacity to consent to such treatment or care, Lord Goff stated as follows :", "“It was plainly the statutory intention that such patients would indeed be cared for, and receive such treatment for their condition as might be prescribed for them in their best interests. Moreover, the doctors in charge would, of course, owe a duty of care to such a patient in their care. Such treatment and care can, in my opinion, be justified on the basis of the common - law doctrine of necessity ... ( Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1 ) It is not therefore necessary to find such justification in the [1983 Act] itself, which is silent on the subject. It might, I imagine, be possible to discover an implication in the statute providing similar justification; but even assuming that to be right, it is difficult to imagine that any different result would flow from such a statutory implication. For present purposes, therefore, I think it appropriate to base justification for treatment and care of such patients on the common - law doctrine.”", "39. Lord Goff then considered whether the applicant had been “unlawfully detained” as alleged and as found by the Court of Appeal. He pointed out that for the tort of false imprisonment to be committed there must, in fact, be a complete deprivation of, or restraint on liberty: an actual and not a potential deprivation of liberty went towards constituting the tort. Lord Goff then turned to the facts and quoted extensively from the affidavit (sworn on 3 October 1997 ) of Dr M.:", "“At 11 o ’ clock on 22 July 1997 I was contacted by ... [the] social worker and [the applicant ’ s] case manager. She advised me that there had been an incident at Cranstock Day Centre, where [the applicant] had been attending since 1995, when [the applicant] had seriously self-harmed and was extremely disturbed. She said that he had to be sent to the Accident & Emergency Department and she requested assistance from the psychiatric services to assess [the applicant] with a view to admitting him if necessary. One of my team members, [Dr P. ], staff grade psychiatrist, attended the Accident & Emergency Department as requested. His notes state that he took a history from ... the team manager at Cranstock Day Centre who reported that since March 1997 [the applicant ’ s] episodes of self-injurious behaviour had increased in severity. On 22 July 1997 whilst he was at Cranstock he had been agitated, hyperventilating, pacing up and down and hitting himself on the head with his fists. He was also banging his head on the wall. The whole area had to be evacuated to avoid disturbance and assure the safety of others. He was given 4 mgs of Diazepam to try to calm him down at the time but this had no effect. The GP was therefore called who administered 5 mgs of Zimovane. However he still remained agitated in the Accident & Emergency Department. He was assessed and treated at A & E. [Dr P. ] later assessed [the applicant] as being agitated and very anxious. He noted redness of both his temples, that he was punching his head with both his fists at times and hyperventilating. [Dr P. ] assessed that [the applicant] required in-patient treatment and transferred [the applicant] to the Behavioural Unit. [Dr P. ] noted that [the applicant] ‘ makes no attempt to leave ’. I recorded that we considered whether it was necessary to detain [the applicant] under the Mental Health Act 1983 but it was decided that this was not necessary as he was, as I noted at the time, ‘ quite compliant ’ and had ‘ not attempted to run away ’. He was therefore admitted as an informal patient. If [the applicant] had resisted admission I would certainly have detained him under the [1983] Act as I was firmly of the view that he required in-patient treatment. This was clearly thought through and supported following discussion with [Dr P. ], ward staff, other professionals and the Care Services Manager. An appropriate framework of care and treatment was implemented.”", "40. Lord Goff then noted how Dr M. had then", "“ ... described how Mr and Mrs E. were informed on 22 July of [the applicant ’ s] admission, as was [the applicant ’ s] next of kin. At first, with the agreement of Mr and Mrs E., it was arranged that they would not visit [the applicant] for a few days, in accordance with the usual clinical practice. On 23 July Dr M. wrote to Mr and Mrs E. and in her letter invited them to come and meet her the following week when it was her intention to discuss the possibility of phased visits, but they did not accept this invitation to meet her. On the same day an advocacy worker was appointed as [the applicant ’ s] advocate. [The applicant] was again assessed. A programme of tests and observations was then put into effect.”", "41. Lord Goff continued to quote from Dr M. ’ s affidavit:", "“As [the applicant] is an informal patient there has never been any attempt to detain him against his will or carry out any tests, observations or assessments to which he indicated a dislike or with which he refused to cooperate. [The applicant] has always accepted his medication which has always been administered orally. He was also fully compliant when blood was taken from him for testing. He did not however cooperate with the attempts that were made to carry out a CT scan and EEG, which were necessary in view of his old history of fits and temporal lobe abnormality, on 5 and 6 August 1997 and so these tests were abandoned. [The applicant] cooperated to a certain extent with the speech therapy assessment which was carried out on 15 September 1997 and the occupational therapy assessment. However, as soon as he showed any signs of distress the assessments were postponed and reviewed. [The applicant] is accommodated on an unlocked ward and has never attempted to leave the hospital but has accepted the change in his environment very well and is not distressed by it ... It was, in my professional opinion, in [the applicant ’ s] best interests to be admitted on 22 July 1997 and it is also in his best interests to continue with in-patient treatment to prevent further deterioration of his mental health. His discharge at this point in time would therefore be against medical advice. At the time of and since admission [the applicant] has been fully compliant with treatment and never indicated that he wishes to leave the hospital. In view of this it has not been necessary to detain him under the Act ... If [the applicant] stopped cooperating or indicated a wish to leave then I would have to consider at that time whether his condition warranted detention under section 3 of the Act. As these circumstances have not so far arisen detention has not been necessary.”", "42. Lord Goff considered that, in the light of the above account by Dr M., the following conclusions might be drawn:", "“The first is that, as I have already recorded, although [the applicant] had been discharged from hospital into the community on a trial basis, and on that basis had gone to live with Mr and Mrs E. as his paid carers, nevertheless he had not been finally discharged. It followed that the appellant trust remained responsible for his treatment, and that it was in discharge of that responsibility that the steps described by Dr M. were taken. The second is that when, on 22 July, [the applicant] became agitated and acted violently, an emergency in any event arose which called for intervention, as a matter of necessity, in his best interests and, at least in the initial stages, to avoid danger to others. Plainly it was most appropriate that the appellant trust, and Dr M. in particular, should intervene in these circumstances; certainly Mr and Mrs E., as [the applicant ’ s] carers, could not assert any superior position. Third, I have no doubt that all the steps in fact taken, as described by Dr M. , were in fact taken in the best interests of [the applicant] and, in so far as they might otherwise have constituted an invasion of his civil rights, were justified on the basis of the common - law doctrine of necessity.", "I wish to add that the latter statement is as true of any restriction upon his freedom of movement as then occurred, as it is of any touching of his person. There were times during the episode when it might be said that [the applicant] was ‘ detained ’ in the sense that, in the absence of justification, the tort of false imprisonment would have been committed. I have particularly in mind the journey by ambulance from the Day Centre to the Accident and Emergency Unit. But that journey was plainly justified by necessity, as must frequently be so in the case of removal to hospital by ambulance of unfortunate people who have been taken ill or suffered injury and as a result are incapacitated from expressing consent. I wish further to add that I cannot see that Dr M. ’ s statements to the effect that she would if necessary have taken steps compulsorily to detain [the applicant] under the Act of 1983 have any impact on the above conclusions. Those concerned with the treatment and care of mentally disordered persons must always have this possibility in mind although, like Dr M. , they will know that this power is only to be exercised in the last resort and they may hope, as in the present case, that it would prove to be unnecessary to exercise it. Such power, if exercised in accordance with the statute, is of course lawful. In the present case all the steps in fact taken by Dr M. were, in my opinion, lawful because justified under the common - law doctrine of necessity, and this conclusion is unaffected by her realisation that she might have to invoke the statutory power of detention.", "Finally, the readmission of [the applicant] to hospital as an informal patient under section 131(1) of the Act of 1983 could not, in my opinion, constitute the tort of false imprisonment. His readmission, as such, did not constitute a deprivation of his liberty. As Dr M. stated in paragraph 9 of her affidavit, he was not kept in a locked ward after he was admitted. And the fact that she, like any other doctor in a situation such as this, had it in her mind that she might thereafter take steps to detain him compulsorily under the Act, did not give rise to his detention in fact at any earlier date. Furthermore, his treatment while in hospital was plainly justified on the basis of the common - law doctrine of necessity. It follows that none of these actions constituted any wrong against [the applicant].”", "43. For these reasons, Lord Goff allowed the appeal. He had two “subsidiary points”, the second one being as follows :", "“ ... the function of the common - law doctrine of necessity [lies] in justifying actions which might otherwise be tortious, and so has the effect of providing a defence to actions in tort. The importance of this was, I believe, first revealed in the judgments in Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1. I wish, however, to express my gratitude to counsel for the appellants ... for drawing to our attention three earlier cases in which the doctrine was invoked, viz. Rex v. Coate (1 772) Lofft 73, especially at p. 75, per Lord Mansfield, Scott v. Wakem (1862) 3 F. and F. 328, 333, per Bramwell B., and Symm v. Fraser (1863) 3 F. and F. 859, 883, per Cockburn CJ, all of which provide authority for the proposition that the common law permitted the detention of those who were a danger, or potential danger, to themselves or others, in so far as this was shown to be necessary. I must confess that I was unaware of these authorities though, now that they have been drawn to my attention, I am not surprised that they should exist. The concept of necessity has its role to play in all branches of our law of obligations – in contract (see the cases on agency of necessity), in tort (see Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1), and in restitution (see the sections on necessity in the standard books on the subject) – and in our criminal law. It is therefore a concept of great importance. It is perhaps surprising, however, that the significant role it has to play in the law of torts has come to be recognised at so late a stage in the development of our law.”", "44. Lord Nolan, for his part, agreed with the Court of Appeal that the applicant had been detained: he referred to the contents of Dr M. ’ s long letter of 6 August 1997 and to the additional matters on which the Court of Appeal had relied in this respect (and quoted above). Nevertheless, he allowed the appeal as he was satisfied that", "“the trust and its medical staff behaved throughout not only in what they judged to be the best interests of [the applicant], but in strict accordance with their common - law duty of care and the common - law principle of necessity”.", "45. Lord Steyn also allowed the appeal. He recognised that to uphold the decision of the Court of Appeal would be to ensure that a number of important protections applied to the applicant and that to allow the appeal would result in an indefensible gap in mental health law. However, he considered that it was possible, on a contextual interpretation of the 1983 Act, to allow the appeal.", "46. In the first place, he found that the applicant had been detained:", "“It is unnecessary to attempt a comprehensive definition of detention. In my view, this case falls on the wrong side of any reasonable line that can be drawn between what is or what is not imprisonment or detention. The critical facts are as follows: (1) When on 22 July 199 7 at the Day Centre [the applicant] became agitated and started injuring himself, he was sedated and then physically supported and taken to the hospital. Even before sedation he was unable to express dissent to his removal to hospital. (2) Health care professionals exercised effective power over him. If [the applicant] had physically resisted, the psychiatrist would immediately have taken steps to ensure his compulsory admission. (3) In hospital staff regularly sedated him. That ensured that he remained tractable. This contrasts with the position when he was with carers: they seldom resorted to medication and then only in minimal doses. (4) The psychiatrist vetoed visits by the carers to [the applicant]. She did so, as she explained to the carers, in order to ensure that [the applicant] did not try to leave with them. The psychiatrist told the carers that [the applicant] would be released only when she, and other health care professionals, deemed it appropriate. (5) While [the applicant] was not in a locked ward, nurses closely monitored his reactions. Nurses were instructed to keep him under continuous observation and did so.", "Counsel for the Trust and the Secretary of State argued that [the applicant] was in truth always free not to go to the hospital and subsequently to leave the hospital. This argument stretches credulity to breaking point. The truth is that for entirely bona fide reasons, conceived in the best interests of [the applicant], any possible resistance by him was overcome by sedation, by taking him to hospital and by close supervision of him in hospital. And if [the applicant] had shown any sign of wanting to leave, he would have been firmly discouraged by staff and, if necessary, physically prevented from doing so. The suggestion that [the applicant] was free to go is a fairy tale. ... In my view [the applicant] was detained because the health care professionals intentionally assumed control over him to such a degree as to amount to complete deprivation of his liberty”.", "47. Secondly, he found that detention to be justified under the common - law doctrine of necessity:", "“It is now necessary to consider whether there was lawful authority to justify the detention and any treatment of [the applicant]. This is a matter of statutory construction. But it is important to approach the mental health legislation against the context of the principles of the common law. The starting - point of the common law is that when a person lacks capacity, for whatever reason, to take decisions about medical treatment, it is necessary for other persons, with appropriate qualifications, to take such decision for him: Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1, at 55H, per Lord Brandon of Oakbrook. The principle of necessity may apply. For the purposes of the present case it has been assumed by all counsel that the requirements of the principle are simply that (1) there must be ‘ a necessity to act when it is not practicable to communicate with the assisted person ’ and (2) ‘ that the action taken must be such as a reasonable person would in all circumstances take, acting in the best interests of the assisted person ’ : Re F. , supra, per Lord Goff of Chieveley, at 75H. There was not unanimity on this point in Re F. But I am content to approach the matter in the same way as counsel did ... Against this common - law background the Percy Report recommended a shift from the ‘ legalism ’ whereby hospital patients were ‘ certified ’ by special procedures, to a situation in which most patients would be ‘ informally ’ received in hospital, the term ‘ informally ’ signifying ‘ without any legal formality ’. This was to be achieved by replacing the existing system ‘ by the offer of care, without deprivation of liberty, to all who need it and are not unwilling to receive it ’ : see Report of the Royal Commission on the Law Relating to Mental Illness and Mental Deficiency (1954-1957) ... The desired objective was to avoid stigmatising patients and to avoid where possible the adverse effects of ‘ sectioning ’ patients. Where admission to hospital was required compulsion was to be regarded as a measure of last resort. The Mental Health Act of 1959 introduced the recommended changes. Section 5(1) was the critical provision. ... Counsel appearing on behalf of [the applicant] accepted that the effect of section 5 was to leave in place the common - law principle of necessity as a justification for informally receiving in hospital or mental nursing homes compliant incapacitated patients.", "In 1982 Parliament substantially amended the Act of 1959. In 1983 Parliament enacted a consolidating statute with amendments, namely the Mental Health Act 1983. By section 131(1) of the Act of 1983 the provisions of section 5(1) of the Act of 1959 were re-enacted verbatim. ... Prima facie section 131(1) must be given the same meaning as section 5(1). On this basis, section 131(1) also preserved the common - law principle of necessity as a means of admitting compliant incapacitated individuals. But counsel for [the applicant] submitted that section 131(1), unlike its predecessor, only applies to consenting capacitated patients. He argued that contextual differences between the statutes of 1959 and 1983 required the court to interpret the language of section 131(1) of the Act of 1983 in a narrower sense than section 5(1) of the Act of 1959. ... On orthodox principles of statutory interpretation the conclusion cannot be avoided that section 131(1) permits the admission of compliant incapacitated patients where the requirements of the principle of necessity are satisfied. Having had the benefit of the fuller argument produced by the intervention of the Secretary of State, I have to accept that the view of the Court of Appeal on the meaning of section 131(1) cannot be upheld.”", "48. Accordingly, the common- law doctrine of necessity had been preserved by section 131(1) of the 1983 Act and the applicant ’ s detention and treatment were justified on that basis.", "49. Lord Steyn went on to note that the effect of the House of Lords ’ judgment was to leave compliant incapacitated patients without the safeguards enshrined in the 1983 Act:", "“This is an unfortunate result. The common - law principle of necessity is a useful concept, but it contains none of the safeguards of the 1983 Act. It places effective and unqualified control in the hands of the hospital psychiatrist and other health care professionals. It is, of course, true that such professionals owe a duty of care to patients and that they will almost invariably act in what they consider to be the best interests of the patient. But neither habeas corpus nor judicial review are sufficient safeguards against misjudgments and professional lapses in the case of compliant incapacitated patients. Given that such patients are diagnostically indistinguishable from compulsory patients, there is no reason to withhold the specific and effective protections of [the 1983 Act] from a large class of vulnerable mentally incapacitated individuals. Their moral right to be treated with dignity requires nothing less. The only comfort is that counsel for the Secretary of State has assured the House that reform of the law is under active consideration.”", "D. The Health Service Commissioner (“the Commissioner”)", "50. In March 2000 Mr and Mrs E. complained to the Commissioner about the applicant ’ s readmission to hospital. The complaints subjected to investigation were: (a) that the clinical decision to admit the applicant on 22 July 1997 was unreasonable; and (b) that the clinical management of his admission was inadequate. The independent assessors investigated. In their report, they considered that the applicant ’ s admission to the IBU on 22 July 1997 was “probably unavoidable”. He had a significantly better quality of life with his carers and more serious consideration should have been given to sending him home on the day his carers had been located or, at least, the following day. The assessors considered that it was difficult to see why, even if it was necessary to retain him overnight, he was not discharged the following day and his subsequent evaluation conducted on an outpatient basis. The process of assessment of the applicant had been too long and resources should have been available to speed up that process. In this latter respect, the assessors did not believe that any of the clinicians were acting irresponsibly or maliciously and their main recommendation for the future was that admissions to the IBU be “strictly time-limited” and that adequate resources be made available to enable a multi-disciplinary assessment to be carried out if at all possible on an outpatient basis and, if not, as speedily as possible.", "51. The Commissioner, in his report of 15 November 2001, agreed with the assessors ’ conclusions, adopted their recommendations and conveyed the hospital ’ s apologies to Mr and Mrs E. for the shortcomings identified. The hospital had also informed the Commissioner that, through the Intensive Assessment and Treatment Service, the assessors ’ recommendations for outpatient assessment had been implemented." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Relevant statutory provisions", "1. The Mental Health Act 1983 (“the 1983 Act”)", "52. The majority of persons who receive in-patient psychiatric care are treated without resort to the compulsory powers under Part II of the 1983 Act and these are called “informal patients”.", "Such patients are either “voluntary patients”, namely, those persons with legal capacity to consent and who have consented to admission for treatment, or persons who do not have the legal capacity to consent to treatment but who are admitted for treatment on an “informal basis” as they do not object to that admission (incapacitated but compliant).", "53. Section 131(1) of the 1983 Act provides as follows:", "“Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or mental nursing home in pursuance of arrangements made in that behalf and without any application, order or direction rendering him liable to be detained under this Act, or from remaining in any hospital or mental nursing home in pursuance of such arrangements after he has ceased to be so liable to be detained.”", "54. The 1983 Act provides for a number of substantive and procedural safeguards to those “ detained ” under its provisions.", "(a) Patients can only be detained for assessment ( section 2 ) or for treatment ( section 3 ) where the strict statutory criteria set out in Part II of the Act have been met. In general (and emergency admissions apart), detention requires the acceptance by the relevant institution of an application in the prescribed form by a qualified person. That application must be founded upon written medical recommendations in the prescribed form of two medical practitioners, both of whom have recently examined the patient and have no personal interest and one of whom has special experience in the diagnosis or treatment of mental disorder.", "(b) Part IV of the 1983 Act sets out rules on the need to obtain a patient ’ s consent or a second medical opinion for certain forms of medical treatment.", "(c) Part V provides for an opportunity to apply, or to be automatically referred, to a Mental Health Review Tribunal (“MHRT”) for a review of the need for continued detention.", "(d) The “nearest relative” of a detainee has the power, inter alia, to object to an application for involuntary committal under section 3 of the 1983 Act, to discharge a patient from such detention and to apply to the MHRT (in certain cases) for a patient ’ s discharge (sections 26-32).", "( e ) A former detainee has access to aftercare services (section 117).", "( f ) The Secretary of State must create a Code of Practice (section 118 ) in order to guide those concerned with the treatment of psychiatric detainees. Section 120 charges the Secretary of State with the supervision of the exercise of the powers and duties conferred and imposed by the 1983 Act and accords him associated powers to visit, interview and investigate. Section 121 established the Mental Health Act Commission, which exercises the functions of the Secretary of State under section 118 and 120 of the 1983 Act.", "(g) Detainees have a right to receive information about their detention from hospital managers ( section 132 of the 1983 Act ).", "2. The Health Service Commissioners Act 1993 (“the 1993 Act”)", "55. The relevant parts of section 3 of the 1993 Act, entitled “ General remit of Commissioners”, provide :", "“(1) On a complaint duly made to a Commissioner by or on behalf of a person that he has sustained injustice or hardship in consequence of –", "(a) a failure in a service provided by a health service body,", "(b) a failure of such a body to provide a service which it was a function of the body to provide, or", "(c) maladministration connected with any other action taken by or on behalf of such a body,", "the Commissioner may, subject to the provisions of this Act, investigate the alleged failure or other action.", "...", "(4) Nothing in this Act authorises or requires a Commissioner to question the merits of a decision taken without maladministration by a health service body in the exercise of a discretion vested in that body.”", "56. Section 5 of the 1993 Act is entitled “Exercise of clinical judgment” and provides as follows:", "“(1) A Commissioner shall not conduct an investigation in respect of action taken in connection with –", "(a) the diagnosis of illness, or", "(b) the care or treatment of a patient,", "which, in the opinion of the Commissioner, was taken solely in consequence of the exercise of clinical judgment ...", "(2) In subsection (1), ‘ illness ’ includes a mental disorder within the meaning of the Mental Health Act 1983 ... ”", "B. Relevant jurisprudence", "1. General", "57. The common - law doctrine of necessity was relied on as early as Rex v. Coate (1772) Lofft 73, Scott v. Wakem (1862) 3 Foster and Finalson ’ s Nisi Prius Reports 328, 333, and Symm v. Fraser (1863) 3 Foster and Finalson ’ s Nisi Prius Reports 859, 883 (see Lord Goff ’ s judgment, paragraph 4 3 above). These cases provide authority for the proposition that the common law permitted the detention of those who were a danger, or potential danger, to themselves or others, in so far as this was shown to be necessary. This jurisdiction has also been exercised in relation to a range of medical treatment issues and, in particular, in relation to sterilisation operations ( Re F. (Mental Patient: Sterilisation) [1990] 2 Appeal Cases 1) and the continuance of artificial nutrition and hydration ( Airedale NHS Trust v. Bland [1993] Appeal Cases 789, 869).", "58. The High Court has a certain jurisdiction to make declarations as to the best interests of an adult who lacks the capacity to make decisions. The jurisdiction will be exercised when there is a serious justiciable issue requiring a decision by the court.", "2. Re F. (Adult: Court ’ s Jurisdiction) ([2001] Family Division Reports 38)", "59. In June 2000 the Court of Appeal found that, where there was a risk of possible harm to a mentally incapable adult, the High Court had power, under its inherent jurisdiction and in the best interests of that person, to hear the issues involved and to grant the necessary declarations. It therefore dismissed an appeal which contested the High Court ’ s jurisdiction to make a declaration requested by a local authority in respect of the residence and contacts of an adult who lacked capacity and who was at risk of harm.", "60. Lady Justice Butler-Sloss noted that the local authority was seeking to rely on the inherent jurisdiction of the court under the doctrine of necessity in order to direct where T. should live and to restrict and supervise her contact with her natural family. The local authority, supported by the Official Solicitor, submitted that the doctrine operated on a day-to- day basis in making ordinary decisions for the care and protection of an incapable adult as recognised in the present case ( R v. Bournewood Community and Mental Health NHS Trust, ex parte L. [1999] Appeal Cases 458). T. ’ s mother contended that the courts were unable to fill the gap caused by statutory amendments: while there was a limited jurisdiction to make declarations in medical cases on issues capable of resolution at the time of hearing, that did not extend to cases where the effect would be coercive over a long period without limit of time and without a clear view of future requirements for that person.", "61. Lady Justice Butler-Sloss had no doubt that there was a serious justiciable issue which required a decision by the court. Mental health legislation did not cover the day-to- day affairs of mentally incapable adults and in both Re F. (Mental Patient: Sterilisation) and Bournewood (cited above) the courts had recognised that the doctrine of necessity might properly be relied on side by side with the statutory regime. The jurisdiction of the High Court to grant relief by way of declarations was therefore not excluded by the Mental Health Act 1983. As to the question of whether the problem (residence and contact) arising in the case came within the established principles so as to give the court jurisdiction to hear the issue of T. ’ s best interests and make declarations, she found in the affirmative:", "“There is an obvious gap in the framework of care for mentally incapacitated adults. If the court cannot act and the local authority case is correct, this vulnerable young woman would be left at serious risk with no recourse to protection, other than the future possibility of the criminal law. That is a serious injustice to T. who has rights which she is unable, herself, to protect.", "...", "Although the decision of this court in Re S. (Hospital Patient: Court ’ s Jurisdiction) [1996] Fam 1 turned upon the locus standi of the claimant, the underlying issue, recognised by counsel and by this court was the best interests of S. When the matter was remitted to Hale J for decision, the question that she answered was his future residence (see Re S. (Hospital Patient: Foreign Curator) [1996] 1 FLR 167. Lord Goff in Bournewood recognised ... that the concept of necessity had a role to play in all branches of the law where obligations existed and was therefore a concept of great importance. In Re S. the Master of the Rolls set out the long-established power of the High Court to grant declarations in a wide variety of situations and to assume jurisdiction if there is no practicable alternative. He looked at the line of medical and similar cases and said at page 18 ... :", "‘ Collectively, these cases appear to constitute the development of a new advisory declaratory jurisdiction. ’", "In Re C. (Mental Patient: Contact) [1993] 1 FLR 940, one of the cases referred to by Sir Thomas Bingham MR, there was a dispute between the parents of an adult mentally incapacitated girl over contact between her and her mother. Eastham J held ... that:", "‘ In an appropriate case, if the evidence bears out the proposition that access is for the benefit of the patient in this case, S. , I see no reason at all why the court should not grant access by way of a declaration. ’", "In both Re C. and Re S. the declarations sought were in support of identifying the best interests of an incapable adult where individuals around him or her were in conflict over his/her future welfare. The application for declaratory relief in the present appeal is between a local authority and a mother but ... there is no distinction to be drawn between a local authority and an individual. A declaration is, in many ways, a flexible remedy able to meet a variety of situations. In the present conflict, where serious question marks hang over the future care of T. if returned to her mother, there is no practicable alternative to the intervention of the court. The declarations sought by the local authority may require alteration according to the facts found by the judge, but he would have the jurisdiction to vary them to meet the situation after those findings were made. There is the possibility that the judgment itself might resolve the situation. If it does not and declarations are required which determine where T should live, there is nothing in principle to inhibit a declaration that it was in her best interests that she should live in a local authority home and should not live anywhere else, nor, while she was in the home to regulate the arrangements for her care and as to with whom she might have contact. Such were the implications of the second stage of Re S. before Hale J and of Re C. (above).", "I am clear that it is essential that T. ’ s best interests should be considered by the High Court and that there is no impediment to the judge hearing the substantive issues involved in this case.", "The assumption of jurisdiction by the High Court on a case - by - case basis does not, however, detract from the obvious need expressed by the Law Commission and by the Government for a well-structured and clearly defined framework of protection of vulnerable, mentally incapacitated adults, particularly since the whole essence of declarations under the inherent jurisdiction is to meet a recognised individual problem and not to provide general guidance for mentally incapacitated adults. Until Parliament puts in place that defined framework, the High Court will still be required to help out where there is no other practicable alternative.”", "3. R. -B. (A Patient) v. Official Solicitor, sub nom Re A. (Male Patient: Sterilisation) ([2000] 1 Family Court Reports 193).", "62. Lady Justice Butler-Sloss found as follows in a judgment delivered in December 1999 :", "“Another question which arises from the decision in Re F. is the relationship of best interests to the Bolam test ( Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582). Doctors charged with the decisions about the future treatment of patients and whether such treatment would, in the cases of those lacking capacity to make their own decisions, be in their best interests, have to act at all times in accordance with a responsible and competent body of relevant professional opinion. That is the professional standard set for those who make such decisions. The doctor, acting to that required standard has, in my view, a second duty, that is to say he must act in the best interests of a mentally incapacitated patient. I do not consider that the two duties have been conflated into one requirement. To that extent I disagree with the Law Commission ’ s Report on Mental Incapacity (paragraph 3.26 ... ) and I prefer the alternative suggestion in [the] footnote ... ”", "4. R. (Wilkinson) v. the Responsible Medical Officer Broadmoor Hospital ([2001] Court of Appeal, Civil Division ( England Wales ) 1545 ).", "63. Mr Wilkinson, an involuntary psychiatric detainee, applied for judicial review of past and future treatment decisions. He argued that the domestic court had to examine the competing medical views before it in order properly to review the lawfulness of the enforced medical treatment in his case. The respondents argued that the level of scrutiny on judicial review, even applying the “super-Wednesbury” approach, did not allow the courts to substitute their view for that of the primary medical decision-maker and opposed the examination of the relevant health professionals. The High Court refused to call and cross-examine the health professionals on their medical opinions.", "64. By the time the Court of Appeal heard the case, the Human Rights Act 1998 (incorporating the Convention into domestic law) had come into force (in October 2000). The applicant argued therefore that the provisions of, inter alia, Articles 2, 3, 6, 8, and 14 of the Convention reinforced his position as to the level of examination of the varying medical views to be carried out, while the respondents maintained that the 1998 Act did not mean that the courts must adopt a primary fact-finding role in such circumstances.", "65. As regards any future proposed medical treatment (post-1998 Act), the Court of Appeal found that Articles 2, 3 and 8 of the Convention required, on judicial review, a full review of the merits of the relevant medical decisions and that a review in accordance with the “ super-Wednesbury” criteria would not have been sufficiently intrusive as to constitute such a proper review of the merits of those medical decisions. In this connection, the Court of Appeal referred to the European Court ’ s judgment in Smith and Grady v. the United Kingdom (nos. 33985/96 and 33986/96, §§ 135-39, ECHR 1999 ‑ VI).", "C. The Law Commission ’ s Report on “Mental incapacity”, February 1995", "66. In the early 1990s the Law Commission produced a series of consultation papers entitled “ Mental incapacitated adults and decision - making” culminating in the above- mentioned report. The introduction noted:", "“1.1. It is widely recognised that ... the law as it now stands is unsystematic and full of glaring gaps. It does not rest on clear or modern foundations of principle. It has failed to keep up with social and demographic changes. It has also failed to keep up with developments in our understanding of the rights and needs of those with mental instability.”", "67. As to the meaning of best interests, the report noted as follows:", "“3.26. Our recommendation that a ‘ best interests ’ criterion should apply throughout our scheme cannot be divorced from a recommendation that statute should provide some guidance to every decision-maker about what the criterion requires. No statutory guidance could offer an exhaustive account of what is in a person ’ s best interests, the intention being that the individual person and his or her individual circumstances should always determine the result. In our 1993 consultation papers, however, we suggested that certain principles of general application would always be relevant. At least in so far as substitute health-care decisions are concerned, the principles we suggested probably involve a significant departure from the present state of the law. This, as set out in [ Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1], appears to provide that a doctor who acts in accordance with an accepted body of medical opinion is both (1) not negligent and (2) acting in the best interests of a patient without capacity.”", "The footnote at this point in the report (and to which Lady Justice Butler-Sloss referred in R. -B. (A Patient) v. Official Solicitor, cited above ) indicated as follows:", "“It may be that all [the judges in Re F. ] were saying was that a doctor must both (1) meet the standard of care required to avoid liability in negligence and (2) act in an incapacitated patient ’ s best interests. However, since they gave no indication of how those ‘ best interests ’ were to be identified, some commentators have concluded that the two requirements were in fact one. The speeches of the law lords in Airedale NHS Trust v. Bland [1993] AC 789 cannot be said to have resolved this important point, and Lord Goff again referred to the professional negligence standard when discussing what was in the patient ’ s best interests.”", "68. The report went on:", "“This apparent conflation of the criterion for assessing complaints about professional negligence with the criterion for treating persons unable to consent has been the butt of vehement criticism. No medical professional body responding to consultation paper no. 129 argued in favour of retaining such a definition of ‘ best interests ’. Many were extremely anxious to see some clear and principled guidance given as to what ‘ best interests ’ might involve. ...", "3.27. It should be made clear beyond any shadow of a doubt that acting in a person ’ s best interests amounts to something more than not treating that person in a negligent manner. Decisions taken on behalf of a person lacking capacity require a careful, focused consideration of that person as an individual. Judgments as to whether a professional acted negligently, on the other hand, require careful, focused consideration of how that particular professional acted as compared with the way in which other reasonably competent professionals would have acted. ... ”", "69. The Law Commission recommended that, in deciding what is in a person ’ s best interests, regard should be had to:", "“(1) the ascertainable past and present wishes and feelings of the person concerned and the factors that person would consider if able to do so;", "(2) the need to permit and encourage the person to participate, or to improve his or her ability to participate, as fully as possible in anything done for and any decision affecting him or her;", "(3) the views of other people whom it is appropriate and practicable to consult about the person ’ s wishes or feelings and what would be in his or her best interests;", "(4) whether the purpose for which any action or decision is required can be as effectively achieved in a manner less restrictive of the person ’ s freedom of action. ”", "D. The Mental Health Act Code of Practice 1999", "70. A revised Code of Practice, prepared pursuant to section 118 of the 1983 Act, came into force on 1 April 1999. The 1983 Act did not impose a legal duty to comply with the Code but, as it was a statutory document, failure to follow it could be referred to in evidence in legal proceedings.", "71. Under the title “ Informal patients”, the Code stated:", "“2.7. Where admission to hospital is considered necessary and the patient is willing to be admitted informally this should in general be arranged. Compulsory admission powers should only be exercised in the last resort. Informal admission is usually appropriate when a mentally capable patient consents to admission, but not if detention is necessary because of the danger the patient presents to him or herself or others. Compulsory admission should be considered where a mentally capable patient ’ s current medical state, together with reliable evidence of past experience, indicates a strong likelihood that he or she will have a change of mind about informal admission prior to actually being admitted to hospital, with a resulting risk to their health or safety or to the safety of other people.", "2.8. If at the time of admission the patient is mentally incapable of consent, but does not object to entering hospital and receiving care or treatment, admission should be informal (see R. v. Bournewood Community and Mental Health NHS Trust, ex parte L. [1998] 3 ALL ER 289 ... ). The decision to admit a mentally incapacitated patient informally should be made by the doctor in charge of the patient ’ s treatment in accordance with what is in the patient ’ s best interests and is justifiable on the basis of the common - law doctrine of necessity ... If a patient lacks capacity at the time of an assessment or review, it is particularly important that both clinical and social care requirements are considered, and that account is taken of the patient ’ s ascertainable wishes and feelings and the views of their immediate relatives and carers on what would be in their best interests.”", "72. The relevant parts of paragraph 15.21 read as follows:", "“There are particular considerations that doctors must take into account in discharging their duty of care for those who lack capacity to consent. Treatment for their condition may be prescribed for them in their best interests under the common - law doctrine of necessity (see the decisions of the House of Lords in Re F. [1990] 2 AC 1 and R. v. Bournewood Community and Mental Health NHS Trust, ex parte L. [1998] 3 ALL ER 289). According to the decision in the case of Re F. , if treatment is given to a patient who is not capable of giving consent, ‘ in the patient ’ s best interests ’ the treatment must be:", "– necessary to save life or prevent a deterioration or ensure an improvement in the patient ’ s physical or mental health; and", "– in accordance with a practice accepted at the time by a reasonable body of medical opinion skilled in the particular form of treatment in question (the test that was originally laid down in [the Bolam case] ) .”", "E. Practice Note and Direction 2001", "73. On 1 May 2001 a practice note was issued by the Official Solicitor entitled “ Declaratory proceedings: medical and welfare decisions for adults who lack capacity”. It combined the guidance given in earlier practice notes concerning sterilisation operations for incapacitated persons and the continuance of artificial nutrition and hydration for those in vegetative states, and was extended to cover a wider range of medical and welfare disputes concerning adults who lack capacity. The relevant parts provide:", "“2. The High Court has jurisdiction to make declarations as to the best interests of an adult who lacks decision-making capacity. The jurisdiction will be exercised when there is a serious justiciable issue requiring a decision by the court. It has been exercised in relation to a range of medical treatment issues, in particular sterilisation operations and the continuance of artificial nutrition and hydration. It has also been exercised in relation to residence and contact issues. The jurisdiction is comprehensively reviewed and analysed in Re F. (Adult: Court ’ s Jurisdiction) [2000] 2 FLR 512.", "THE NEED FOR COURT INVOLVEMENT", "3. Case - law has established two categories of case that will in virtually all cases require the prior sanction of a High Court judge. The first is sterilisation of a person (whether a child or an adult) who cannot consent to the operation: Re B. (A Minor) (Wardship: Sterilisation) [1988] AC 199 and Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1. The second is the discontinuance of artificial nutrition and hydration for a patient in a vegetative state: Airedale NHS Trust v. Bland [1993] AC 789, 805. Further guidance about sterilisation and vegetative state cases is given below. In all other cases, doctors and carers should seek advice from their own lawyers about the need to apply to the court. In the Official Solicitor ’ s view, applications should be made where there are disputes or difficulties as to either the patient ’ s capacity or the patient ’ s best interests. Guidelines were handed down by the Court of Appeal in St George ’ s Healthcare NHS Trust v. S. ; R. v. Collins and Others, ex parte S. [1998] 2 FLR 728, 758-760. It was stressed in that case that a declaration made without notice would be ineffective and ought not to be made.", "...", "THE EVIDENCE", "7. The claimant must adduce evidence going to both capacity and best interests.", "(i) Capacity", "The court has no jurisdiction unless it is established that the patient is incapable of making a decision about the matter in issue. The test of capacity to consent to or refuse treatment is set out in Re M. B. (Medical Treatment) [1997] 2 FLR 426, 437. ...", "(ii) Best interests", "In any medical case, the claimant must adduce evidence from a responsible medical practitioner not only (1) that performing the particular operation would not be negligent but also (2) that it is necessary in the best interests of the patient: Re A. (Male Sterilisation) [2000] 1 FLR 549, 555. The court ’ s jurisdiction is to declare the best interests of the patient on the application of a welfare test analogous to that applied in wardship: Re S. (Sterilisation: Patient ’ s Best Interests) [2000] 2 FLR 389, 403. The judicial decision will incorporate broader ethical, social, moral and welfare considerations (ibid. , 401). Emotional, psychological and social benefit to the patient will be considered: Re Y. (Mental Patient: Bone Marrow Transplant) [1997] Fam 110. The court will wish to prepare a balance sheet listing the advantages and disadvantages of the procedure for the patient. If potential advantages and disadvantages are to be relied on then the court will wish to assess in percentage terms the likelihood of them in fact occurring: Re A. (Male Sterilisation) [2000] 1 FLR 549, 560. ”", "74. A practice direction (issued by the High Court with the approval of the Lord Chief Justice and the Lord Chancellor on 14 December 2001 and entitled “ Declaratory proceedings: incapacitated adults”) pointed out that proceedings which involved its jurisdiction to grant declarations as to the best interests of incapacitated adults were more suited to the Family Division and that the note detailed in the preceding paragraph provided valuable guidance in relation to such proceedings and “should be followed”.", "F. Proposed legislative reform", "75. Further to the publication (in December 2000) of a White Paper on reforming the mental health legislation, a draft Mental Health Bill and a consultation paper were published in June 2002. The objective of the bill, as described in the consultation paper, was twofold: to provide a legal structure for requiring mentally disordered persons to submit to compulsory treatment without necessarily requiring them to be detained in hospital and bringing the law more closely into line with modern human rights law (notably the case - law of the European Convention on Human Rights). Part 5 of the bill (sections 121-39) was entitled “Informal treatment of patients not capable of consenting” and provided for specific safeguards for qualifying patients.", "76. Steps were also taken towards developing legislation on the broader question of incapacity. Having published a consultation paper in December 1997 entitled “Making decisions on behalf of mentally incapacitated adults”, the Government published its proposals in October 1999. It was proposed that legislation provide for a general authority enabling a person acting reasonably to make decisions on behalf of an incapacitated person and in the incapacitated person ’ s best interests. The general authority would extend to decisions about care and welfare, including medical decisions.", "77. Subsequently, a Mental Capacity Bill was introduced in the House of Commons on 17 June 2004. On the assumption that additional safeguards for the care of incapacitated patients would be most appropriately included in legislation on capacity rather than on mental health, this bill provides for a detailed statutory framework to empower and protect vulnerable people incapable of making their own decisions and for safeguards not currently available under the common law.", "78. In particular, the Mental Capacity Bill sets out in statutory form a number of common- law principles, including that everything done must be in the best interests of the patient and in a manner least restrictive of the patient ’ s rights. It sets down detailed tests for the assessment of capacity and best interests. The bill creates new mechanisms for the appointment, where appropriate, of a designated decision- maker to act on behalf of an incapacitated patient and to be consulted on any decision made: either a lasting power of attorney (which allows the appointment of someone to act on one ’ s behalf in the case of future loss of capacity) or a court- appointed deputy (who can make decisions on welfare, health care and financial matters as determined by the court). Two new public bodies are also proposed by the bill to support the statutory framework: a new court of protection (for dispute resolution on matters such as capacity and best interests) and a public guardian (a registered authority with supervisory responsibilities as regards the designated decision- makers described above). The bill also provides for the input of an independent consultee ( for a person lacking capacity who has no one who can be consulted about his or her best interests), allows individuals to make an “advance decision” to refuse treatment should they lose capacity in the future and creates a new criminal offence of “ ill-treatment or neglect of a person lacking capacity ”.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "79. The applicant ’ s complaints under this provision concerned his time in the hospital as an “informal patient” between 22 July and 29 October 1997, which he maintained amounted to a “deprivation of liberty” within the meaning of Article 5 § 1 of the Convention. He asserted that that detention was neither “in accordance with a procedure prescribed by law” nor “lawful” because he was not of unsound mind; the doctrine of necessity did not reflect the criteria for a valid detention under Article 5 § 1 (e) and lacked precision; and there were insufficient safeguards against arbitrary detention on grounds of necessity. He added that he remained of sound mind during his subsequent detention under the 1983 Act ( from 29 October to 12 December 1997 ). The relevant parts of Article 5 § 1 of the Convention provide :", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(e) the lawful detention ... of persons of unsound mind ...;", "... ”", "A. Whether the applicant was “deprived of his liberty” from 22 July to 29 October 1997", "1. The parties ’ submissions", "80. The Government explained that acceptance by the Court that the applicant was “detained” would run counter to the long-held wish of the United Kingdom to avoid the formal statutory procedures of compulsory psychiatric committal for incapacitated patients unless absolutely necessary, the informality, proportionality and flexibility of the common - law doctrines being considered distinctly preferable.", "A finding that the present applicant was “detained” would mean that the care of incapacitated but compliant persons elsewhere (even in a private house or nursing home) would be considered detention, a conclusion which would have onerous legal and other implications for such patients and for any person or organisation having responsibility for their care and welfare. In addition, a person already suffering from a socially difficult illness must not unnecessarily suffer the additional stigma of being “sectioned”. Accordingly, just as incapacitated persons requiring medical treatment could be admitted and treated in hospital informally in their best interests, so too should incapacitated persons requiring psychiatric treatment. Moreover, consensual non-imposed treatment was considered more likely to attract a degree of cooperation from the patient and to be therefore more beneficial therapeutically. Furthermore, informal admission and treatment in an incapacitated patient ’ s best interests meant that that person was treated with the required dignity. These considerations explained the provisions of the new draft Mental Health Bill (paragraphs 75-77 above). The Government therefore hoped that the Court ’ s judgment would be consistent with these policy aims and would not require States to apply the full rigour of a statutory regime of involuntary committal to all incapacitated patients requiring psychiatric treatment.", "81. As a further preliminary submission, the Government considered that the case should be examined on the basis of a presumption that all professionals involved with the care of the applicant acted in good faith and in what they considered to be his best interests in circumstances where he could not act for himself and was totally dependent.", "82. Turning specifically to whether the applicant was “detained”, the Government relied on the test outlined in Ashingdane v. the United Kingdom (judgment of 28 May 1985, Series A no. 93, p. 19, § 41). The House of Lords had applied this test to resolve the essential question of fact, finding that the applicant had not been “detained”, and the Court should not go back on such domestic findings of fact.", "83. Applying this test, the Government reasoned that, if one took the case of a person who plainly had the capacity to consent to psychiatric treatment, the regime in the hospital was clearly one which did not amount to a deprivation of liberty. The regime applied to the applicant was not materially different and could not be considered to amount to a deprivation of liberty simply because he lacked capacity. In any event, the applicant did not object to being in hospital. While he might have been detained if he had attempted to leave hospital, an intention to detain someone in the future does not amount to detention for the purposes of Article 5. Indeed, since the lucidity of an individual with a psychiatric disorder might vary over time, one could not base a finding of detention merely on a mental state if the underlying regime remained the same. Further, whether the applicant was in the carers ’ home or in the hospital was not, in itself, relevant to the determination of whether there had been a deprivation of liberty, since it was the nature of the restrictions that was relevant. Those restrictions did not amount to involuntary detention but rather to necessary and proper care for someone with the applicant ’ s needs.", "84. The Government relied on Nielsen v. Denmark (judgment of 28 November 1988, Series A no. 144) and H.M. v. Switzerland (no. 39187/98, § 48, ECHR 2002- II). As in Nielsen, the hospital remained responsible for the applicant ’ s treatment and, in particular, was obliged to take decisions in his best interests and on his behalf even after his trial discharge to his carers in 1994. H.M. v. Switzerland was, in their view, the most recent expression by the Court of its opinion on the question of whether or not a person could be considered to have been “detained” in circumstances where he or she was unable to express clearly whether or not they wished to be in the relevant institution.", "85. In the Government ’ s opinion, none of the factors to which the applicant referred amounted, alone or together, to a deprivation of liberty.", "As to the doors of the relevant unit being locked, the Government noted that this allegation could have been, but was not, made in the domestic proceedings and the Court should not be required to resolve such a disputed fact. In any event, the Government noted the affidavit evidence of Dr M. ( see paragraph 41 above) and the finding by Lord Goff ( see paragraph 4 2 above) that the doors were unlocked, together with the failure by the Commissioner to come to any conclusion on this point. Indeed, this factor needed to be carefully approached in the context of mentally disordered patients incapable of looking after themselves as their care might inevitably include locking doors temporarily as a precaution, in order to prevent them from harming themselves. In addition, there was some evidence that the applicant had not been denied access to his carers as he alleged.", "86. The applicant maintained that the Convention notion of detention was more flexible than that of the House of Lords and included notions of psychological detention, potential detention (perceived threat of restraint) and the removal of the means of escape. He also agreed that the Ashingdane test had to be applied in order to determine in a specific case whether a person had been detained so that the type, duration, effects and manner of implementation of the measure in question had to be examined.", "As to the type of detention, the hospital was an authorised “detaining institution”, the conditions of which were to be distinguished from those of his home with his carers. As to the duration, he was detained for four months and twenty-one days for assessment whereas an involuntary admission for assessment under section 2 of the 1983 Act is for a maximum of twenty-eight days and for treatment under section 3 of the 19 83 Act is for a maximum of six months. The effect on the applicant of his stay in the hospital was a marked deterioration in his well-being. As to the manner of implementation, the applicant maintained (as did Lord Steyn in the House of Lords – see paragraph 4 6 above) that, for a number of reasons detailed by him, the idea that he was free to leave was a “fairy tale”.", "87. Accordingly, he considered the question of whether the doors of the relevant unit had been locked not to be, in itself, determinative of whether he had been deprived of his liberty within the meaning of Article 5 § 1 of the Convention. However, he continued to maintain as a matter of fact that the doors had been locked and explained why he had not challenged the hospital ’ s evidence on this point in the domestic proceedings. Once he raised the point before the Commissioner, the evidence was to the effect that the doors had been locked for most of the time.", "88. He maintained that Nielsen (cited above) was distinguishable because the applicant in that case was a minor who had been admitted on the basis of parental consent and detained for as long as consent lasted (type of measure). He was not medicated and was able to visit and be visited (manner of implementation). H.M. v. Switzerland (cited above) was also distinguishable: in that case, the applicant was in a terrible state before admission and improved thereafter to the extent that she agreed to stay in the institution (effect of the measure). The relevant foster home was an open institution, H.M. had freedom of movement (indeed, her freedom of movement was enhanced by the care in the institution) and she could maintain contact with the outside world (manner of implementation). While the applicants ’ situation in Nielsen and H.M. v. Switzerland fell short of “detention” by reference to the Ashingdane criteria, his own regime fell within that category.", "2. The Court ’ s assessment", "89. It is not disputed that in order to determine whether there has been a deprivation of liberty, the starting-point must be the concrete situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and a restriction upon, liberty is merely one of degree or intensity and not one of nature or substance ( see Guzzardi v. Italy, judgment of 6 November 1980, Series A no. 39, p. 33, § 92, and Ashingdane, cited above, p. 19, § 41).", "90. The Court observes that the High Court and the majority of the House of Lords found that the applicant had not been detained during this period, while the Court of Appeal and a minority of the House of Lords found that he had. Although this Court will have regard to the domestic courts ’ related findings of fact, it does not consider itself bound by their legal conclusions as to whether the applicant was detained or not, not least because the House of Lords considered the question from the point of view of the tort of false imprisonment (see paragraph 39 above) rather than the Convention concept of “deprivation of liberty” in Article 5 § 1, the criteria for assessing those domestic and Convention issues being different.", "In this latter respect, considerable emphasis was placed by the domestic courts, and by the Government, on the fact that the applicant was compliant and never attempted, or expressed the wish, to leave. The majority of the House of Lords specifically distinguished actual restraint of a person (which would amount to false imprisonment) and restraint which was conditional upon his seeking to leave (which would not constitute false imprisonment). The Court does not consider such a distinction to be of central importance under the Convention. Nor, for the same reason, can the Court accept as determinative the fact relied on by the Government that the regime applied to the applicant (as a compliant incapacitated patient) did not materially differ from that applied to a person who had the capacity to consent to hospital treatment, neither objecting to their admission to hospital. The Court reiterates that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention ( see De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A no. 12, p. 36, §§ 64-65), especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action.", "91. Turning therefore to the concrete situation, as required by Ashingdane, the Court considers the key factor in the present case to be that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements from 22 July 1997, when he presented acute behavioural problems, to 29 October 1997, when he was compulsorily detained.", "More particularly, the applicant had been living with his carers for over three years. On 22 July 1997, following a further incident of violent behaviour and self-harm at his day-care centre, the applicant was sedated before being brought to the hospital and subsequently to the IBU, in the latter case supported by two persons. His responsible medical officer (Dr M. ) indicated clearly that, had the applicant resisted admission or subsequently tried to leave, she would have prevented him from doing so and would have considered his involuntarily committal under section 3 of the 1983 Act ( see paragraphs 12, 13 and 4 1 above). Indeed, as soon as the Court of Appeal indicated that his appeal would be allowed, he was compulsorily detained under the 1983 Act. The correspondence between the applicant ’ s carers and Dr M. ( see paragraphs 23-30 above) reflects both the carers ’ wish to have the applicant immediately released to their care and, equally, the clear intention of Dr M. and the other relevant health care professionals to exercise strict control over his assessment, treatment, contacts and, notably, movement and residence; the applicant would only be released from the hospital to the care of Mr and Mrs E. as and when those professionals considered it appropriate. While the Government suggested that “there was some evidence” that the applicant had not been denied access to his carers, it is clear from the above-noted correspondence that the applicant ’ s contact with his carers was directed and controlled by the hospital, his carers not visiting him after his admission until 2 November 1997", "Accordingly, the concrete situation was that the applicant was under continuous supervision and control and was not free to leave. Any suggestion to the contrary is, in the Court ’ s view, fairly described by Lord Steyn as “stretching credulity to breaking point” and as a “fairy tale” ( see paragraph 46 above).", "92. The Court would therefore agree with the applicant that it is not determinative whether the ward was “locked” or “lockable” (the evidence before the House of Lords and the Commissioner appearing to differ on this point ). In this regard, it notes that the applicant in Ashingdane was considered to have been “detained” for the purposes of Article 5 § 1 (e) even during a period when he was in an open ward with regular unescorted access to the unsecured hospital grounds and the possibility of unescorted leave outside the hospital ( pp. 13-14, § 24, and pp. 19-20, § 42 ).", "93. Considerable reliance was placed by the Government on H. M. v. Switzerland ( cited above ), in which it was held that the placing of an elderly applicant in a foster home, to ensure necessary medical care as well as satisfactory living conditions and hygiene, did not amount to a deprivation of liberty within the meaning of Article 5 of the Convention. However, each case has to be decided on its own particular “range of factors” and, while there may be similarities between the present case and H. M. v. Switzerland, there are also distinguishing features. In particular, it was not established that H.M. was legally incapable of expressing a view on her position. She had often stated that she was willing to enter the nursing home and, within weeks of being there, she had agreed to stay. This, combined with a regime entirely different to that applied to the present applicant (the foster home was an open institution which allowed freedom of movement and encouraged contact with the outside world), leads to the conclusion that the facts in H.M. v. Switzerland were not of a “degree” or “intensity” sufficiently serious to justify the finding that she was detained (see Guzzardi, cited above, p. 33, § 93).", "The Court also finds a conclusion that the present applicant was detained consistent with Nielsen (cited above), on which the Government also relied. That case turned on the specific fact that the mother had committed the applicant minor to an institution in the exercise of her parental rights ( see Nielsen, pp. 23-24, § 63, and pp. 24-25, § 68), pursuant to which rights she could have removed the applicant from the institution at any time. Although the Government noted that the hospital retained responsibility for the present applicant following his release in 1994, the fact that the hospital had to rely on the doctrine of necessity and, subsequently, on the involuntary detention provisions of the 1983 Act demonstrates that the hospital did not have legal authority to act on the applicant ’ s behalf in the same way as Jon Nielsen ’ s mother.", "94. The Court therefore concludes that the applicant was “deprived of his liberty” within the meaning of Article 5 § 1 of the Convention from 22 July 1997 to 29 October 1997.", "B. Whether the detention was “in accordance with a procedure prescribed by law” and “lawful” within the meaning of Article 5 § 1 (e)", "1. Whether the applicant was of unsound mind", "(a) The parties ’ submissions", "95. The Government observed that the applicant had been detained in his best interests for psychiatric assessment and treatment on the basis of the common - law doctrine of necessity. This was unanimously established by the House of Lords, which finding should not be reviewed by the Court.", "96. The Government pointed out that it was common ground during the domestic proceedings that the applicant was of unsound mind and required detention for treatment until he could be released to his carers, and it was not for the Court, given its subsidiary function, to substitute its own judgment for that of the medical experts but rather to ensure that those expert opinions had an objective and reliable basis. There was no reason why the domestic courts could not have reviewed whether the facts of the case justified detention, a review which could have included an examination of whether what was done in the interests of the applicant had been reasonably done. The Government did not accept that the Commissioner ’ s conclusion amounted to a finding, as claimed by the applicant, that he was not of “unsound mind”; there was no express finding to that effect and such a conclusion could not be drawn from the contents of his report.", "97. The applicant maintained that there was no legal basis for his detention because, while he may have been suffering from a mental disorder on 22 July 1997 and the circumstances that led to his being taken to the hospital on that day amounted to an emergency, his mental disorder was not of such a nature or degree as to justify his subsequent admission to the hospital ’ s IBU or, alternatively, it ceased to be of such a degree shortly thereafter. Since there was no domestic court examination of whether he was of unsound mind within the meaning of Article 5 § 1 (e) and Winterwerp v. the Netherlands ( judgment of 24 October 1979, Series A no. 33), the State could not discharge its burden of proof and establish that there was a legal basis for his detention.", "In this respect, he pointed out that, while the domestic courts might have concluded that the hospital had acted in good faith and reasonably in his best interests, and while the Commissioner may not have found that the hospital acted irresponsibly or maliciously, the Commissioner found it difficult to understand why the applicant had not been released to his carers on 22 July 1997 or at least the following day. The Court was not being requested to overturn the findings of the domestic courts but rather to prefer the conclusion of the Commissioner as the only body to have made findings on the applicant ’ s state of mind after a proper assessment of the evidence.", "(b) The Court ’ s assessment", "98. The Court reiterates that an individual cannot be deprived of his liberty on the basis of unsoundness of mind unless three minimum conditions are satisfied: he must reliably be shown to be of unsound mind; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp, cited above, pp. 17-18, § 39; Luberti v. Italy, judgment of 23 February 1984, Series A no. 75, pp. 12-13, § 27; Johnson v. the United Kingdom, judgment of 24 October 1997, Reports of Judgments and Decisions 1997 ‑ VII, p. 2419, § 60; and Hutchison Reid v. the United Kingdom, no. 50272/99, § 4 8, ECHR 2003- IV). The national authorities have a certain margin of appreciation regarding the merits of clinical diagnoses since it is in the first place for them to evaluate the evidence in a particular case: the Court ’ s task is to review under the Convention the decisions of those authorities ( see Luberti and Winterwerp, cited above, pp. 12-13, § 27, and p. 18, § 40, respectively).", "99. In this connection, the Court notes that the applicant has not suggested that the relevant health care professionals acted other than in good faith, responsibly and in what they considered to be his best interests. He had had a long history of serious behavioural problems and special care requirements, and had been treated in the hospital for over thirty years following which he was discharged in 1994 on a trial basis only. There is evidence of increasingly difficult behavioural problems before July 1997 ( see paragraphs 13, 14 and 39 above). It was not disputed that the applicant was suffering from a mental disorder on 22 July 1997, that he was agitated, self-harming and controllable with sedation only while in the day-care centre or that he had given rise to an emergency situation on that day. Having regard to the detailed consideration of the matter by Dr M. (who had cared for the applicant since 1977) and by the other health care professionals on that day (see paragraphs 1 2, 13 and 39 above) together with the day-care centre ’ s report ( see paragraph 14), the Court considers that there is adequate evidence justifying the initial decision to detain the applicant on 22 July 1997.", "Thereafter, Dr M. ’ s correspondence with Mr and Mrs E. is demonstrative of a detailed assessment of the applicant and the consistent clinical view, maintained throughout the relevant period, of Dr M. and other health care professionals involved that the applicant required admission for such assessment and treatment. Dr G. was briefed by the applicant ’ s carers and he expressed the same view in his report of August 1997. On the basis of the material before them, the judges of the House of Lords were unanimous in finding his detention to be justified on the grounds of necessity in his best interests. Lord Goff relied on the above -mentioned affidavit of Dr M. in which she opined that the applicant required admission for assessment and treatment and would have been considered for involuntary committal under the 1983 Act if he had tried to leave ( see paragraphs 39 -4 1 above). As noted above, once the possibility of his leaving arose in October 1997, the formal procedures for his committal were put in place (section 5(2) of the 1983 Act) followed by a committal under section 3 of that Act, which latter procedure required two medical certificates attesting to the necessity of his committal for treatment for a mental disorder ( see paragraph 54 above). Finally, the fact that he was, in the report dated 27 November 1997, found to be suffering from a mental impairment which no longer warranted confinement clearly does not undermine the validity of the prior assessments to the contrary. Indeed, following this first independent clinical indication that detention was no longer warranted, the applicant was released.", "100. Given the above, the Court considers that the Commissioner ’ s later and differing view as to the necessity for the applicant ’ s detention provides limited support to the applicant. The Commissioner was not competent to review clinical decisions ( see paragraphs 5 5 -5 6 above), his examination covered welfare and social concerns broader than the strict clinical diagnoses and his principal concerns related to perceived delays in assessing the applicant in the hospital, the possibility of his being assessed at home and the manner in which the relationship with his carers had been handled by the hospital.", "101. In such circumstances and on the material before it, the Court finds that the applicant has been reliably shown to have been suffering from a mental disorder of a kind or degree warranting compulsory confinement which persisted during his detention between 22 July and 5 December 1997.", "2. Lawfulness and protection against arbitrary detention", "(a) The Government ’ s submissions", "102. Noting that the House of Lords had unanimously accepted that the applicant had been detained in his best interests for psychiatric assessment and treatment on the basis of the doctrine of necessity, the Government argued that the doctrine of necessity was sufficiently precise and its consequences adequately foreseeable as to constitute “law” within the meaning of the Convention.", "103. In the first place, they argued that the Court had accepted that it was impossible, especially in a common-law system, for there to be absolute certainty in the formulation and application of certain rules of law. It had also been accepted that unwritten law, so long as it was sufficiently precise, could satisfy the requirements of Article 5 § 1 of the Convention. Indeed, the Government observed that the common law had the benefit of flexibility and evolution, so the fact that the Court of Appeal applied the doctrine of necessity in a particular way after the applicant ’ s detention did not mean that it would not have done so earlier if requested. It would be wrong therefore to characterise the doctrine of necessity (and notions of best interests, necessity and reasonableness) as too uncertain for the purposes of the lawfulness requirement of Article 5 § 1, not least because similar notions are used in many States ’ systems and in the Convention system itself.", "104. Secondly, the Government maintained that the doctrine of necessity was a well - established doctrine reaching as far back as the eighteenth century, and its precision was demonstrated by the thorough and authoritative examination in 1990 ( see Re F. (Mental Patient: Sterilisation), cited above ) and by its subsequent application prior to and in the present case. In particular, the doctrine of necessity required the establishment of: a lack of capacity; the best interests of the patient (such interests being long-recognised as including considerations wider than the strictly medical, such as ethical, social, moral and welfare needs – see Re F. (Adult: Court ’ s Jurisdiction), cited above, and the practice note and direction of May 2001, paragraphs 59-61 and 73-74 above); and that the proposed action was an objectively reasonable step to take. Professionals had to act in strict accordance with their common - law duty of care (Lord Nolan, paragraph 4 4 above).", "105. As to the applicant ’ s submission concerning a conflict between the position outlined in R. - B. (A Patient) v. Official Solicitor, sub nom Re A. (Male Sterilisation) and paragraph 15.21 of the Mental Health Act Code of Practice 1999 ( see paragraphs 62 and 72 above), the Government pointed out that the Code amounted to guidance, it did not purport to be an authoritative statement of the law and it was open to anyone to obtain a court decision as to whether the Code provisions were accurate or not. In addition, there was no need for a definition of “compliant”, as suggested by the applicant, as it was a word of ordinary usage. Moreover, the Government considered that the Court of Appeal ’ s decision in Re F. (Adult: Court ’ s Jurisdiction) ( cited above ) did not break new ground in the High Court ’ s “best interests” declaratory powers but simply applied the House of Lords ’ decision in the present case.", "106. The Government were further of the view that it was not relevant whether, as the applicant submitted, the doctrine of necessity extended beyond the treatment of those with a mental disorder; what was important was that it reflected in substance the Winterwerp criteria for lawful detention under Article 5 § 1 (e) ( see paragraph 98 above) as it was only where a mental disorder was considered to be of a nature sufficiently serious to warrant hospital treatment that a doctor could have reasonably concluded that the person was to be retained in hospital for treatment on grounds of necessity.", "107. Finally, they considered that there was no risk of arbitrary detention because of the availability of judicial review (combined with a writ of habeas corpus), which action would require the authorities to demonstrate that the facts justified the detention under the doctrine of necessity (see the Government ’ s submissions under Article 5 § 4, paragraphs 126-30 below). In this manner, the doctrine of necessity could be considered to incorporate adequate judicial guarantees and safeguards.", "(b) The applicant ’ s submissions", "108. The applicant mainly argued that at the relevant time the concepts of “best interests” and “necessity” were imprecise and unforeseeable.", "109. As to the breadth of the test of best interests, he maintained that the case-law at the time of his detention ( see Bolam v. Friern Hospital Management Committee and Re F. (Mental Patient: Sterilisation ), cited above ) indicated that the question of a patient ’ s best interests was a purely clinical one to be judged by a narrow “not negligent” test. This test came under much criticism from, among others, the Law Commission, which led to a consultation paper which was, in turn, adopted by the government in large part in its Green Paper “Making decisions” in October 1999. The proposals therein were not put into effect in legislation and the test was not expanded until R. -B. (A Patient) v. Official Solicitor, sub nom Re A. (Male Patient: Sterilisation ) ( cited above ), when the Court of Appeal ruled that the concept of best interests required compliance with two duties: not to act negligently (to act in accordance with a practice accepted at the time by a reasonable body of medical opinion skilled in the particular form of treatment in question – the “ Bolam ” test), and a separate duty to act in the individual ’ s best interests. The applicant pointed out that paragraph 15.21 of the later Mental Health Act Code of Practice 1999 contradicted this case-law development, thus rendering even more complex the already difficult “best interests” assessment.", "110. As to the extent of the High Court ’ s jurisdiction, the applicant noted that it was not until Re F. (Adult: Court ’ s jurisdiction) (cited above), that it was established that the courts ’ jurisdiction in this area was more analogous to a wardship jurisdiction (and therefore capable of addressing long-term and broader welfare questions, such as residence and contacts of incapacitated adults) as opposed to a narrower declaratory jurisdiction (whether a course of action would be criminal or tortious and essentially covering lawfulness questions only).", "111. The applicant also criticised the lack of precision in the law resulting from the absence of any definition of the term “compliance”. This was important given that “compliance” determined whether treatment would be given under the doctrine of necessity or under the 1983 Act.", "112. The applicant further maintained that the elements of the doctrine of necessity, even if foreseeable, did not equate with the criteria for lawful detention under Article 5 § 1 (e) developed in Winterwerp ( cited above, pp. 17-18, § 39) and compared unfavourably with the criteria for involuntary psychiatric committal outlined in section 3 of the 1983 Act. He suggested that it was possible for a person to be detained under the doctrine of necessity without an examination of whether he or she had been reliably shown by objective medical expertise to be suffering from a mental disorder of a kind or degree warranting compulsory confinement.", "113. Finally, the applicant contended that the doctrine of necessity did not contain sufficient safeguards against arbitrary or mistaken detention and submitted that this was a particularly serious deficiency when the underlying criteria for the deprivation of liberty were themselves imprecise and unforeseeable, when the law bestowed – through that lack of precision – a wide discretionary power and when the person in question was vulnerable.", "( c ) The relevant principles", "114. The Court reiterates that the lawfulness of detention depends on conformity with the procedural and the substantive aspects of domestic law, the term “lawful” overlapping to a certain extent with the general requirement in Article 5 § 1 to observe a “procedure prescribed by law” ( see Winterwerp, cited above, pp. 17-18, § 39). Further, given the importance of personal liberty, the relevant national law must meet the standard of “lawfulness” set by the Convention which requires that all law be sufficiently precise to allow the citizen – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action might entail ( see S.W. v. the United Kingdom, judgment of 22 November 1995, Series A no. 335-B, pp. 41-42, §§ 35- 36; Steel and Others v. the United Kingdom, judgment of 23 September 1998, Reports 1998- VII, p. 2735, § 54; and Kawka v. Poland, no. 25874/94, § 49, 9 January 2001). The Court has outlined above ( see paragraph 98) the three minimum conditions for the lawful detention of an individual on the basis of unsoundness of mind of Article 5 § 1 (e) of the Convention.", "115. Lastly, the Court reiterates that it must be established that the detention was in conformity with the essential objective of Article 5 § 1 of the Convention, which is to prevent individuals being deprived of their liberty in an arbitrary fashion (see, among many authorities, Wassink v. the Netherlands, judgment of 27 September 1990, Series A no. 185-A, p. 11, § 24, and, more recently, Assanidze v. Georgia [GC], no. 71503/01, § 170, ECHR 2004 ‑ II ). This objective, and the broader condition that detention be “in accordance with a procedure prescribed by law”, require the existence in domestic law of adequate legal protections and “fair and proper procedures” ( see Winterwerp, cited above, pp. 19-20, § 45, and Amuur v. France, judgment of 25 June 1996, Reports 1996 ‑ III, pp. 851-52, § 53).", "(d) The Court ’ s assessment", "116. The Court considers it clear that the domestic legal basis for the applicant ’ s detention between 22 July and 29 October 1997 was the common - law doctrine of necessity: the House of Lords may have differed on whether his admission and stay in hospital amounted to detention, but it was unanimous in finding that he had been admitted to hospital pursuant to that doctrine. In addition, the Court considers that, when the doctrine of necessity was applied in the area of mental health, it accommodated the minimum conditions for the lawful detention of those of unsound mind outlined in paragraph 98 above.", "117. In this connection, the Court has noted that as early as 1772 the common law permitted detention of those who were a potential danger to themselves in so far as this was shown to be necessary. In the early 1990s necessity was the recognised legal basis for the consideration of authorisations for certain medical treatment (sterilisation and artificial nutrition and hydration) of incapacitated individuals ( see paragraph 57 above). Re S. (Hospital Patient: Court ’ s Jurisdiction) and Re S. (Hospital Patient: Foreign Curator) together with Re C. (Mental Patient: Contact), reported in 1993 and 1996, resulted in declarations being made as to the best interests of incapacitated individuals pursuant to the doctrine of necessity where there was a conflict over certain welfare issues (see, in particular, the judgment of Lady Justice Butler-Sloss in Re F. (Adult: Court ’ s Jurisdiction ), paragraphs 59 -61 above).", "In addition, all the judges of the House of Lords in the present case relied on Re F. (Mental Patient: Sterilisation) in unanimously concluding that the admission and treatment of an incapacitated compliant patient could be justified on the basis of the doctrine of necessity. Lord Goff, delivering the main judgment, had “no doubt” about this conclusion. Moreover, all counsel before the House of Lords were in agreement as to the precise elements of the doctrine of necessity to be applied (Lord Steyn, paragraph 47 above). These were “simply ” that : ( i ) there must be a necessity to act when it is not practicable to communicate with the assisted person, and (ii) that the action taken must be such as a reasonable person would in all circumstances take, acting in the best interests of the assisted person. Furthermore, as is clear from the statistics provided by the Mental Health Act Commission to the House of Lords, the applicant was one of thousands of compliant incapacitated patients detained each year on the basis of the doctrine of necessity. Finally, the Court does not consider that the lack of a definition of “compliant ” rendered the applicant ’ s detention unforeseeable: the majority of the House of Lords expressed no particular difficulty in applying the notion of compliance in the present case.", "118. It is true that, at the time of the applicant ’ s detention, the doctrine of necessity and, in particular, the “best interests” test were still developing. Clinical assessments of best interests began to be subjected to a double test (the Bolam “not negligent” test together with a separate duty to act in a patient ’ s best interests). Broader welfare matters were also introduced in the “best interests” assessment ( see Re F. (Adult: Court ’ s Jurisdiction) and R. ‑ B. (A Patient) v. Official Solicitor, sub nom Re A. (Male Sterilisation) – paragraphs 59-62 above). It is therefore true that each element of the doctrine might not have been fully defined in 1997. This is reflected in, for example, the conflict between the views of Lady Justice Butler-Sloss in R. ‑ B. (A Patient), cited above, and paragraph 15.21 of the Mental Health Act Code of Practice 1999 (see paragraphs 62 and 72 above).", "119. Whether or not the above allows the conclusion that the applicant could, with appropriate advice, have reasonably foreseen his detention on the basis of the doctrine of necessity ( see The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, pp. 31-33, §§ 49 and 52), the Court considers that the further element of lawfulness, the aim of avoiding arbitrariness, has not been satisfied.", "120. In this latter respect, the Court finds striking the lack of any fixed procedural rules by which the admission and detention of compliant incapacitated persons is conducted. The contrast between this dearth of regulation and the extensive network of safeguards applicable to psychiatric committals covered by the 1983 Act ( see paragraphs 36 and 54 above) is, in the Court ’ s view, significant.", "In particular and most obviously, the Court notes the lack of any formalised admission procedures which indicate who can propose admission, for what reasons and on the basis of what kind of medical and other assessments and conclusions. There is no requirement to fix the exact purpose of admission ( for example, for assessment or for treatment) and, consistently, no limits in terms of time, treatment or care attach to that admission. Nor is there any specific provision requiring a continuing clinical assessment of the persistence of a disorder warranting detention. The appointment of a representative of a patient who could make certain objections and applications on his or her behalf is a procedural protection accorded to those committed involuntarily under the 1983 Act and which would be of equal importance for patients who are legally incapacitated and have, as in the present case, extremely limited communication abilities.", "121. The Court observes that, as a result of the lack of procedural regulation and limits, the hospital ’ s health care professionals assumed full control of the liberty and treatment of a vulnerable incapacitated individual solely on the basis of their own clinical assessments completed as and when they considered fit: as Lord Steyn remarked, this left “effective and unqualified control” in their hands. While the Court does not question the good faith of those professionals or that they acted in what they considered to be the applicant ’ s best interests, the very purpose of procedural safeguards is to protect individuals against any “misjudgments and professional lapses” (Lord Steyn, paragraph 49 above).", "122. The Court notes, on the one hand, the concerns regarding the lack of regulation in this area expressed by Lord Steyn ( see paragraph 47 above), Lady Justice Butler-Sloss ( see paragraph 61 above) and the Law Commission in 1995 ( see paragraphs 66-68 above ). On the other hand, it has also noted the Government ’ s understandable concern (outlined in paragraph 80 above) to avoid the full, formal and inflexible impact of the 1983 Act. However, the current reform proposals set out to answer the above-mentioned concerns of the Government while at the same time making provision for detailed procedural regulation of the detention of incapacitated individuals (see, in particular, the Mental Capacity Bill described in paragraphs 77-78 above).", "123. The Government ’ s submission that detention could not be arbitrary within the meaning of Article 5 § 1 because of the possibility of a later review of its lawfulness disregards the distinctive and cumulative protections offered by paragraphs 1 and 4 of Article 5; the former strictly regulates the circumstances in which one ’ s liberty can be taken away, whereas the latter requires a review of its legality thereafter.", "124. The Court therefore finds that this absence of procedural safeguards fails to protect against arbitrary deprivations of liberty on grounds of necessity and, consequently, to comply with the essential purpose of Article 5 § 1. On this basis, the Court finds that there has been a violation of Article 5 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION", "125. The applicant complained that the procedures available to him as an informal patient for the review of the legality of his detention (judicial review combined with a writ of habeas corpus) did not comply with the requirements of Article 5 § 4 of the Convention, which provision reads as follows:", "“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”", "A. The parties ’ submissions", "126. The Government considered this submission to be incorrect. An action in judicial review ( combined with a writ of habeas corpus) allowed an assessment of the essential conditions (within the meaning of Winterwerp and Article 5 § 1 (e) of the Convention) bearing on the lawfulness of his detention.", "127. In particular, those domestic proceedings were sufficiently flexible to allow the court to examine the objective medical evidence to establish whether the Winterwerp conditions had been met. Relying on domestic jurisprudence which in turn relied on the judgment of the Court of Appeal in Reg. v. the Ministry of Defence, ex parte Smith ([1996] Queen ’ s Bench Reports 517), the Government argued that at the relevant time the courts could have interfered with an executive decision where they were satisfied that the decision was unreasonable in the sense that it was beyond the range of responses open to a reasonable decision- maker. The human rights context was important and the more substantial the interference with human rights, the more the court would require by way of justification before it would find the interference to be reasonable (the “ super-Wednesbury ” test). The flexibility of judicial review was demonstrated, in particular, by the significant developments immediately prior to the Human Rights Act 1998 and since incorporation (as demonstrated by cases concerning the compulsory treatment of patients, including R. (Wilkinson) v. Broadmoor Special Hospital Authority, cited above ). These developments were, in the Government ’ s opinion, not so much a result of incorporation as of flexibility of the common law and its procedures.", "128. While judicial review may not have allowed the courts to substitute their views for the clinical expert views expressed, the Government noted that Article 5 § 4 did not require this ( see E. v. Norway, judgment of 29 August 1990, Series A no. 181-A). The Court ’ s judgment in X v. the United Kingdom (judgment of 5 November 1981, Series A no. 46) could, according to the Government, be distinguished in that the relevant review therein was of a decision to detain taken on the basis of legislative provisions whereas the present case concerned the review of a decision to detain on the basis of the common law. In the latter case, the domestic courts could review the facts said to justify detention on a more intrusive basis. The Government contested, as contrary to a fundamental principle of English law, the applicant ’ s suggestion that the legal burden rested on him to prove that his detention was unlawful.", "129. The Government also explained why they considered the judicial review/habeas corpus procedure to be sufficiently “speedy” and to constitute a periodic control at reasonable intervals. They maintained that Article 5 § 4 did not require the review to be automatic ( see X v. the United Kingdom, cited above, pp. 22-23, § 52).", "130. Finally, the Government added that a patient could also bring a civil claim for damages for negligence, false imprisonment and/ or trespass to the person (assault), which actions would be “ likely ” to cause the hospital to “ justify its treatment ” of the patient without his or her consent. They suggested that the applicant could also have brought declaratory proceedings in the High Court to obtain a declaration as to what would have been in his best interests.", "131. The applicant contended that he did not have a domestic review available to him of the existence and persistence of the essential conditions for the lawfulness of his detention.", "132. The MHRT could provide such a review under the 1983 Act, but the applicant had not been detained under that Act.", "133. Judicial review proceedings ( combined with a writ of habeas corpus ) were clearly insufficient at the time of his detention and remained so even after incorporation.", "Prior to incorporation, habeas corpus only lay against a decision which was unlawful on the grounds of strict “ illegality ” or lack of jurisdiction. More importantly, the courts would rarely in judicial review interfere with primary findings of fact made by a public authority, particularly where that authority had a particular expertise. Even the more intense review (the “super-Wednesbury ” test ) did not amount to an examination as to whether the authority was correct in acting as it did, but rather whether it had acted “unreasonably” or “irrationally” ( see Smith and Grady, cited above, §§ 137-38 ). Finally, the legal burden of proof was on him to establish that his detention was unlawful, whereas Article 5 § 4 required the State to establish the lawfulness of detention under domestic law and under Article 5 § 1 (e) of the Convention. As to the Government ’ s attempt to distinguish X v. the United Kingdom, the applicant pointed out that they had not referred to a single case where the domestic courts had examined on the merits the lawfulness of a patient ’ s detention under the doctrine of necessity. Indeed, in his own domestic proceedings there was much untested affidavit evidence and no independent psychiatric evidence was obtained by the court as to whether detention was appropriate. Judicial review and habeas corpus procedures were simply not appropriate for the resolution of disputed facts, oral evidence and cross-examination being rarely used.", "Since incorporation, the applicant noted that the domestic courts had developed the intensity of their review on judicial review. However, he considered it telling that, even if that review was more intense when human rights were involved (the “ super-Wednesbury ” test ) and even if it included a proportionality test ( see R (Daly) v. Home Secretary [2001] 2 Appeal Cases 532), it still did not amount to an adequate review of the continuing presence of the essential conditions for the lawfulness of detention. In this connection, he pointed out that the courts had only once conducted a full merits review since incorporation ( see R. (Wilkinson) v. Broadmoor Special Hospital Authority, cited above, where the Court of Appeal specifically recognised the shift in approach to a merits review after incorporation in order to investigate and resolve medical issues and related Convention rights).", "In any event, he argued that judicial review / habeas corpus proceedings could not be heard sufficiently speedily or constitute a periodic control at reasonable intervals if the process was to be regularly used by all informal patients. Finally, such proceedings did not amount to the automatic review required by Article 5 § 4 ( see Megyeri v. Germany, judgment of 12 May 1992, Series A no. 237 ‑ A, pp. 11-12, § 22).", "134. Finally, the applicant recognised that the High Court ’ s inherent jurisdiction in private - law claims to make “best interests” declarations had developed so that it had now become something akin to a wardship jurisdiction and that that might go some way to satisfying the requirements of Article 5 § 4. However, those developments post - dated his period of detention ( see Re F. (Adult: Court ’ s Jurisdiction), cited above) and, indeed, post-dated incorporation ( see R. (Wilkinson) v. Broadmoor Special Hospital Authority, cited above ). In any event, a “best interests” application would still not satisfy Article 5 § 4 as the onus was on the patient to bring the application.", "B. The Court ’ s assessment", "1. General principles", "135. Article 5 § 4 guarantees the right of an individual deprived of his liberty to have the lawfulness of that detention reviewed by a court in the light, not only of domestic - law requirements, but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by paragraph 1: the structure of Article 5 implies that the notion of “lawfulness” should have the same significance in paragraphs 1 (e) and 4 in relation to the same deprivation of liberty. This does not guarantee a right to review of such scope as to empower the court, on all aspects of the case, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the lawful detention of a person, in this case, on the ground of unsoundness of mind ( see X v. the United Kingdom, cited above, p. 25, § § 57- 58; Ashingdane, cited above, p. 23, § 52; E. v. Norway, cited above, pp. 21-22, § 50; and Hutchison Reid, cited above, § 64).", "2. Application to the present case", "136. The Government mainly argued that an application for leave to apply for judicial review of the decision to admit and detain, including a writ of habeas corpus, constituted a review fulfilling the requirements of Article 5 § 4 of the Convention. The applicant disagreed.", "137. The Court considers that the starting - point must be X v. the United Kingdom ( cited above, pp. 22-26, §§ 52-59), where the Court found that the review conducted in habeas corpus proceedings was insufficient for the purposes of Article 5 § 4 as not being wide enough to bear on those conditions which were essential for the “lawful” detention of a person on the basis of unsoundness of mind since it did not allow a determination of the merits of the question as to whether the mental disorder persisted. The Court is not persuaded by the Government ’ s argument that X v. the United Kingdom can be distinguished because it concerned detention pursuant to a statutory power : no authority has been cited and no other material adduced to indicate that the courts ’ review of detention based on the common - law doctrine of necessity would indeed have been more intrusive.", "138. Nor does the Court find convincing the Government ’ s reliance on the development of the “super-Wednesbury” principles of judicial review prior to the entry into force of the Human Rights Act 1998 in October 2000. Those principles were outlined and applied in the domestic judgment in Reg. v. the Ministry of Defence, ex parte Smith (cited above). In the subsequent application to this Court by the same applicant, it was found that, even if his essential complaints under Article 8 of the Convention had been considered by the domestic courts, the threshold at which those courts could have found to be irrational the impugned policy excluding homosexuals from the armed forces had been placed so high that it effectively ruled out any consideration by the domestic courts of the question whether the interference with the applicant ’ s rights answered a pressing social need or was proportionate to the national security and public - order aims pursued, principles which lay at the heart of the Court ’ s analysis of complaints under Article 8. The Court concluded that the remedy of judicial review, even on a “super-Wednesbury” basis, could not therefore constitute an effective remedy (within the meaning of Article 13) for a breach of Mr Smith ’ s rights under Article 8 ( see Smith and Grady, cited above, §§ 35 and 129 - 39).", "139. The Court considers that it can equally be concluded for the purposes of Article 5 § 4 (the lex specialis vis-à-vis Article 13 in terms of entitlement to a review of the lawfulness of detention (see Nikolova v. Bulgaria [GC], no. 31195/96, § 69, ECHR 1999 ‑ II ) that, even with the application of the “super-Wednesbury” principles on judicial review, the bar of unreasonableness would, at the time of the applicant ’ s domestic proceedings, have been placed so high as effectively to exclude any adequate examination of the merits of the clinical views as to the persistence of mental illness justifying detention. This is indeed confirmed by the decision of the Court of Appeal, in a case where the necessity of medical treatment was contested by the patient ( see R. (Wilkinson) v. the Responsible Medical Officer Broadmoor Hospital, cited in paragraph 63 above), that pre-incorporation judicial review of necessity in accordance with the “ super-Wednesbury” criteria was not sufficiently intrusive to constitute an adequate examination of the merits of the relevant medical decisions.", "140. For these reasons, the Court finds that the requirements of Article 5 § 4 were not satisfied, as suggested by the Government, by judicial review and habeas corpus proceedings. It is not necessary therefore to examine the applicant ’ s additional submissions that those proceedings did not satisfy the requirements of that Article because, inter alia, the burden of proof was on the detainee or because such proceedings did not provide “speedy” and “periodic control” at “reasonable intervals”.", "141. The Government also contended, without elaboration, that a dissatisfied patient could bring a civil claim for damages for negligence, false imprisonment and for trespass to the person ( technical assault consequent on detention for treatment ), which actions would be “likely” to cause the hospital to justify its treatment of the patient without consent. The Government then proposed, without further detail, that the applicant could have relied on the declaratory jurisdiction of the High Court.", "However, the applicant did not allege that the relevant health professionals were negligent, but rather that they had been incorrect in their diagnosis. His own action in false imprisonment and assault did not involve the submission of expert evidence by each of the parties or any assessment by the courts of that expertise and no case, decided at or around the relevant time, has been cited where such expertise was requested or such a merits review was carried out. As to seeking declaratory relief from the High Court, the Government have not cited any case decided around the relevant time where the High Court accepted that there was a “serious justiciable issue” to be examined by it in a case such as the present one where the patient was readmitted and detained for assessment and treatment (which treatment was not of an exceptional nature ) on the basis of a consensus amongst the health professionals that admission was necessary (see, in particular, the Practice Note and Direction 2001 – paragraph 7 3 above).", "142. In such circumstances, the Court concludes that it has not been demonstrated that the applicant had available to him a procedure which satisfied the requirements of Article 5 § 4 of the Convention. There has therefore been a violation of this provision.", "III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 5", "143. The applicant further complained under Article 14 of the Convention taken in conjunction with Article 5 that he was discriminated against as an “informal patient ”. Article 14 reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "144. While the Government accepted that the applicant ’ s complaints fell within the scope of Article 5, they argued that he had not suffered a discriminatory difference in treatment. In their view, there was an objective and reasonable difference between informal patients and those requiring compulsory detention and there was a reasonable relationship of proportionality between the means chosen to regulate both situations and the legitimate aims sought to be achieved. The applicant alleged a discriminatory difference in treatment between compliant and non-compliant incapacitated patients. Only the latter were treated on an involuntary basis and attracted the full protection of the 1983 Act.", "145. The Court considers that this complaint does not give rise to any issue separate from those already examined by it under Article 5 §§ 1 and 4 of the Convention, which provisions the Court has found to have been violated. It does not therefore find it necessary also to examine the complaint under Article 14 of the Convention taken in conjunction with Article 5.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "146. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Non- pecuniary damage", "147. The applicant claimed 10,000 pounds sterling (GBP) in compensation for non-pecuniary damage arising from the violations of Article 5 §§ 1 and 4 of the Convention. He pointed out that his complaints under Article 5 § 1 were mainly of a substantive nature. As to Article 5 § 4, he maintained that the Court should follow the line of cases in which an award for non-pecuniary damage in terms of distress and frustration was made even though there had been no underlying unlawful detention or substantive violation ( see, inter alia, Delbec v. France, no. 43125/98, § 42, 18 June 2002, and Laidin v. France (no. 1), no. 43191/98, § 34, 5 November 2002). The Government maintained that a finding of a violation of Article 5 §§ 1 and 4 of the Convention would constitute sufficient just satisfaction.", "148. The Court notes that the violations established of Article 5 § § 1 and 4 are of a procedural nature. In Nikolova (cited above, § 76) the question of making an award for non-pecuniary damage was raised in the context of procedural violations of Article 5 §§ 3 and 4 of the Convention. The Court noted that in some earlier cases relatively small awards for non-pecuniary damage had been made but that, in more recent cases, the Court had declined to accept such claims ( see, inter alia, Pauwels v. Belgium, judgment of 26 May 1988, Series A no. 135, p. 20, § 46; Brogan and Others v. the United Kingdom (Article 50), judgment of 30 May 1989, Series A no. 152-B, pp. 4 4 -45, § 9; Huber v. Switzerland, judgment of 23 October 1990, Series A no. 188, p. 19, § 46; and Hood v. the United Kingdom [GC], no. 27267/95, §§ 84-87, ECHR 1999-I).", "In Nikolova, the Court endorsed the principle, outlined in certain of the above-mentioned cases, that just satisfaction could be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of the guarantees of Articles 5 §§ 3 and 4 and, further, it confirmed that it would not speculate as to whether or not the applicant would have been detained if there had been no violation of the Convention. The Court therefore concluded in Nikolova that the finding of a violation was sufficient just satisfaction as regards any frustration suffered by the applicant on account of the absence of adequate procedural guarantees.", "149. The Court does not see any reason to depart from the position outlined in Nikolova concerning just satisfaction for any distress and frustration suffered by the applicant as a result of the established procedural violations of the rights guaranteed by Article 5 of the Convention.", "The awards in respect of non-pecuniary damage in Hutchinson Reid (cited above) and in the series of French cases to which the applicant has referred followed findings of, inter alia, unreasonable delay in the domestic proceedings determining applications for release from detention. This is consistent with the award of compensation for non-pecuniary damage following a finding of unreasonable delay under Article 6 § 1 of the Convention: despite the procedural nature of such a violation, it is accepted that there can be a causal link between the violation (delay) and the non-pecuniary damage claimed ( see, more recently, Mitchell and Holloway v. the United Kingdom, no. 44808/98, § 69, 17 December 2002).", "150. Accordingly, the Court considers that the finding of a violation of Article 5 § § 1 and 4 of the Convention constitutes sufficient just satisfaction.", "B. Costs and expenses", "151. The applicant claimed reimbursement of approximately GBP 40,000 for costs and expenses. The Government considered this sum excessive.", "The applicant claimed GBP 20,000 ( exclusive of value-added tax – “VAT”) for his representation by Queen ’ s Counsel at the oral hearing in Strasbourg. He also claimed GBP 12,161.25 (inclusive of VAT) in respect of the work completed by junior counsel, the relevant fee note referring to work done from the application stage to the hearing, to an hourly rate of GBP 150 and to 113 hours ’ work. The Government did not take issue with the fact that two counsel had been briefed, but were concerned about duplication of work. In addition, they considered the sum claimed for Queen ’ s Counsel to be excessive, noting that no fee note or voucher had been submitted and that, if the hourly rate was GBP 200, Queen ’ s Counsel was claiming for 100 hours ’ work solely to represent the applicant at the oral hearing. As to junior counsel ’ s fees, the Government considered the hourly rate excessive and did not accept that the case warranted 113 hours ’ work. They proposed a total sum of GBP 20,000 (inclusive of VAT) as regards all counsels ’ fees.", "The applicant also claimed GBP 4,542.55 (inclusive of VAT) in solicitors ’ fees, and the Government considered this to be a reasonable figure.", "152. The Court reiterates that it must ascertain whether the sum claimed for costs and expenses was actually and necessarily incurred and is reasonable as to quantum (see, among other authorities, Witold Litwa v. Poland, no. 26629/95, § 88, ECHR 2000- III). While it is noted that the applicant did not submit any voucher concerning the fees of Queen ’ s Counsel ( see Ciborek v. Poland, no. 52037/99, § 63, 4 November 2003), the Court acknowledges that he must have incurred certain costs in this connection given that counsel ’ s appearance and submissions on the applicant ’ s behalf at the oral hearing in Strasbourg (see Migoń v. Poland, no. 24244/94, § 95, 25 June 2002). As to junior counsel, the Court notes his involvement from the beginning of the application, but also notes that certain substantial complaints under Articles 3, 8 and 13 were declared inadmissible ( see Nikolova, cited above, § 79). The detailed breakdown of the applicant ’ s solicitors ’ costs is also noted and that the Government considered the claim in that respect to be reasonable.", "153. Having regard to all the circumstances, the Court considers it reasonable to award the applicant 29,500 euros (EUR) for his costs and expenses (inclusive of VAT), less EUR 2,667. 57 received by way of legal aid from the Council of Europe, the final sum of EUR 26,832.43 to be converted into pounds sterling at the date of settlement.", "C. Default interest", "154. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1963 and currently lives in the Kėdainiai Social Care Home (hereinafter “the Kėdainiai Home”) for individuals with general learning disabilities.", "A. The circumstances of the case", "7. The facts of the case, as submitted by the parties, may be summarised as follows.", "1. The applicant’s psychiatric treatment, guardianship and care", "8. The applicant has had a history of mental disorder since 1979, when she experienced shock having discovered that she was an adopted child. She is classed as Category 2 disabled.", "9. In 1980, the applicant was diagnosed with schizophrenia simplex. In 1984 she was diagnosed with circular schizophrenia. In 1999, the applicant was diagnosed with paranoid schizophrenia with a predictable course. She has been treated in psychiatric hospitals more than twenty times. During her most recent hospitalisation at Kaunas Psychiatric Hospital in 2004, she was diagnosed with continuous paranoid schizophrenia ( paranoidinė šizofrenija, nepertraukiama eiga ). The diagnosis of the applicant remains unchanged.", "10. In 2000 the applicant’s adoptive father applied to the Kaunas City District Court to have the applicant declared legally incapacitated. The court ordered a forensic examination of the applicant’s mental status.", "11. In their report (no. 185/2000 of 19 July 2000), the forensic experts concluded that the applicant was suffering from “episodic paranoid schizophrenia with a predictable course” ( šizofrenija/paranoidinė forma, epizodinė liga su prognozuojančiu defektu ) and that she was not able “to understand the nature of her actions or to control them”. The experts noted that the applicant knew of her adoptive father’s application to the court for her incapacitation and wrote that she “did not oppose it”. The experts also wrote that the applicant’s participation in the court hearing for incapacitation was “unnecessary”.", "12. On 15 September 2000 the Kaunas City District Court granted the request by the applicant’s adoptive father and declared the applicant legally incapacitated. In a one-page ruling, the court relied on medical expert report no. 185/2000. Neither the applicant nor her adoptive father was present at the hearing. The Social Services Department of the Kaunas City Council was represented before the court.", "13. On 17 May 2001 the applicant’s adoptive father requested her admission to the Kėdainiai Home for individuals with general learning disabilities. The applicant’s name was put on a waiting list.", "14. On 13 August 2002 the Kaunas City District Court appointed D.G., the applicant’s psychiatrist at the Kaunas out-patient health centre ( Kauno Centro Poliklinika ), as her legal guardian. The applicant was present at the hearing. Her adoptive father submitted that “he himself did not agree with being appointed her guardian because he was in disagreement with his daughter ( jis pats nepageidauja būti globėju, nes su dukra nesutaria )”. Nonetheless, he promised to take care of her in future and to help her financially.", "15. By a decision of 24 March 2003, the director of the health care centre dismissed D.G. from her work for a serious violation of her working duties. The decision was based on numerous reports submitted by D.G.’s colleagues and superiors.", "16. On 16 July 2003 D.G. wrote to the Kaunas City District Court asking that she be relieved of her duties as the applicant’s guardian. She mentioned that she had only agreed to become the applicant’s guardian because she had observed a strained relationship between the applicant and her adoptive father. However, D.G. claimed that the applicant’s adoptive father had asked her to hand over the applicant’s pension to him, even though the applicant had been receiving her pension and had been using the money perfectly well on her own for many years. D.G. also contended that the applicant’s adoptive father had attempted to unlawfully appropriate the applicant’s property.", "17. On 1 October 2003 the Kaunas City District Court relieved D.G. of her duties as the applicant’s guardian at her own request. In court D.G. had argued that as she was litigating for unlawful dismissal she could not take proper care of the applicant.", "18. By letter of 9 December 2003, the Kaunas City Social Services Department suggested to the district court that the applicant’s adoptive father be appointed her guardian, although the Department noted that relations between the two of them were tense.", "19. On 21 January 2004 the Kaunas City District Court appointed the applicant’s adoptive father as her legal guardian. The court relied on the request by the Kaunas City Council Department of Health, which was represented at the hearing. The applicant’s adoptive father did not object to the appointment. The applicant was not present at the hearing.", "20. Upon the initiative and consent of the applicant’s adoptive father, on 30 June 2004 the applicant was taken to the Kaunas Psychiatric Hospital for treatment. The applicant complained that she had been treated against her will. A letter by the hospital indicates that the applicant’s adoptive father had asked the hospital staff to ensure that her contacts with D.G. were limited on the ground that the latter had had a negative influence on the applicant. However, on 3 September 2004 the prosecutor for the Kaunas City District dismissed the applicant’s allegations, finding that she had been hospitalised due to deterioration in her mental state upon the order of her psychiatrist. The applicant had also expressed her consent to being treated.", "21. On 8 July 2004 a panel designated by Kaunas City Council to examine cases of admission to residential psychiatric care ( Kauno miesto savivaldybės asmenų su proto negalia siuntimo į stacionarias globos įstaigas komisija ) adopted a unanimous decision to admit the applicant to the Kėdainiai Home.", "22. On 20 July 2004 a medical panel of the Kaunas Psychiatric Hospital concluded that the applicant was suffering from “continuous paranoid schizophrenia” ( paranoidinė šizofrenija nepertraukiama eiga ). The commission also stated that it would be appropriate for the applicant to “live in a social care institution for the mentally handicapped”.", "23. On 28 July 2004 a social worker examined the conditions in which the applicant lived in her apartment in Kaunas city. The report reads that “the applicant is not able to take care of herself, does not understand the value of money, does not clean her apartment, is not able to cook on her own and wanders in the city hungry. Sometimes the applicant gets angry at people and shouts at them without a reason; her behaviour is unpredictable. The applicant does not have bad habits and likes to be in other persons’ company”. The social worker recommended that the applicant be placed in a social care institution because her adoptive father could not “manage” her.", "24. On 2 August 2004 an agreement was concluded between the Kėdainiai Home, the Guardianship Department of Kaunas City Council and the Social Services Department of the Kaunas Regional Administration. On the basis of that agreement, the applicant was transferred from the Kaunas Psychiatric Hospital to the Kėdainiai Home, where she continued her treatment.", "25. On 6 October 2004 the applicant signed a document stating that she agreed to be examined by the doctors in the Kėdainiai Home and to be treated there.", "26. On 10 August 2004 the applicant’s adoptive father wrote to the director of the Kėdainiai Home with a request that during the applicant’s settling into the Kėdainiai Home she should be temporarily restricted from receiving visits by other people. The director granted the request. Subsequently, the Kaunas District Administration upheld the director’s decision on the ground that the latter was responsible for the safety of patients in the Kėdainiai Home and thus was in a better position to determine what steps were necessary.", "27. On 18 August 2004, upon the decision of the Kėdainiai Home director, D.G. was not allowed to visit the applicant. The applicant’s medical record, which a treating psychiatrist signed the following day, states that “[the applicant] is acclimatising at the institution with difficulties, as her former guardian and former doctor [D.G.] keeps calling constantly and telling painful matters from the past (...) [the applicant] is crying and blaming herself for being not good, for not preserving her mother, for having lived improperly. Verbal correction is not effective”.", "28. According to a document signed by Margarita Buržinskienė on 23 February 2005, she had called the Kėdainiai Home to speak to the applicant but the employees had told her that, on the director’s orders, the applicant was not allowed to answer the phone ( vykdant direktorės nurodymą Daivos prie telefono nekviečia ).", "29. On 15 June 2006 the applicant’s adoptive father removed her from institutional care and taken her to his flat. On 15 July 2006 the applicant left his home on her own. A police investigation was started following a report by the applicant’s adoptive father of the allegedly unlawful deprivation of the applicant’s liberty. She was eventually found and apprehended by the police on 31 October 2006, and was taken back to the Kėdainiai Home.", "30. On 6 September 2007 the applicant left the Kėdainiai Home without informing its management. She was found by the police and taken back to the institution on 9 October 2007.", "31. As can be seen from a copy of the record of the Kėdainiai Home’s visitors submitted by the Government, between 2 August 2004 and 25 December 2006 the applicant received one or more visitors on forty-two separate occasions. In particular, her adoptive father saw her thirteen times, her friends and other relatives visited her twenty-six times and she was visited by D.G. on twelve occasions.", "2. Proceedings regarding the change of the applicant’s guardianship", "32. On 15 July 2004 the applicant asked the Kaunas Psychiatric Hospital to initiate a change of guardianship from her adoptive father to D.G. The applicant wrote that her adoptive father had had her admitted to the psychiatric hospital by force and deception, thus depriving her of her liberty. The hospital refused her request as it did not have competence in guardianship matters.", "33. The applicant states that a similar request was rejected by the Kėdainiai Home.", "34. On 2 September 2005, assisted by her former guardian and then friend, D.G., the applicant brought an application before the courts, requesting that the guardianship proceedings be reopened and a new guardian appointed. She submitted that she had been unable to state her opinion as to her guardianship, because she had not been informed of and summoned to the court hearing during which her adoptive father had been appointed her guardian. The applicant relied on Article 507 § 3 of the Code of Civil Procedure and stated that her state of health in the previous year could not have been an obstacle to her expressing her opinion as to the appropriateness of the guardian proposed at the court hearing. She claimed that in 2004 she had used to visit her friend in a village for a couple of weeks at a time. The applicant also noted that when she returned to Kaunas, her adoptive father had often threatened to have her committed to a mental asylum.", "35. The applicant also argued that by appointing her adoptive father to be her guardian without informing her and without her being able to state her opinion as to his prospective appointment, in contravention of Article 3.242 of the Civil Code and Article 507 § 4 of the Code of Civil Procedure, the court had disregarded the strained relationship between the two of them. The applicant drew the court’s attention to the ruling of the Kaunas City District Court of 13 August 2002, in which the applicant’s adoptive father had himself stated that their relationship had been tense. The applicant drew the court’s attention to Article 491 § 2 of the Code of Civil Procedure, stipulating that the court had to take all necessary measures to avoid a possible conflict between the incapacitated person and her potential guardian.", "Lastly, she stated that she had only learned of her adoptive father’s appointment in April 2004.", "36. By a ruling of 29 September 2005 the Kaunas City District Court decided to accept the applicant’s request for examination.", "37. On 27 October 2005 the applicant wrote to the Chairman of the Kaunas City District Court. She complained of her incapacitation on her adoptive father’s devious initiative without having being informed of the incapacitation proceedings. The applicant also pleaded that she had been unlawfully deprived of her liberty and involuntarily admitted to the Kėdainiai Home for an indefinite time and where she had been unable to obtain legal aid.", "38. On 7 November 2005 judge R.A. of the Kaunas City District Court held a closed hearing in which the applicant, her guardian (her adoptive father) and his lawyer, and D.G. took part. The relevant State institutions were also represented at the hearing: the Kėdainiai Home, the Kaunas Psychiatric Hospital, the prosecutor and the Social Services Department of Kaunas City Council. The applicant’s doctor did not take part in the hearing. The court noted that the doctor had been informed of it and had asked the court to proceed without him.", "39. In her application form to the Court, the applicant alleged that at the beginning of the hearing the judge had ordered her to leave her place next to D.G. and to sit next to the judge. The judge had also ordered D.G. “to keep her eyes off the applicant”. Given that this was not reflected in the transcript of the hearing, on 19 November 2005 D.G. had written to the court asking that the transcript be rectified accordingly.", "40. According to the transcript of the hearing, at the beginning thereof D.G. requested that an audio recording be made. The judge refused the request. The applicant asked to be assisted by a lawyer. The judge refused her request, deeming that her guardian was assisted by a lawyer before the court. Without the agreement of her guardian, a separate lawyer could not be appointed. The lawyer hired by the applicant’s guardian was held to represent both the interests of the applicant and her guardian.", "41. As the transcript of the hearing shows, the applicant went on to unequivocally state that she stood by her request that the guardianship proceedings be reopened. She argued that she had neither been informed of the proceedings as to her incapacitation, nor those pursuant to which her guardian had been appointed. The decisions had been taken while she had been in hospital. During the hearing, the applicant expressed her willingness to leave the Kėdainiai Home and stated that she was being kept and treated there by force. She submitted that she would prefer to live at her adoptive father’s home and to attend a day centre ( lankys dienos užimtumo centrą ). The applicant also argued that D.G. had been forced to surrender her duties as her guardian and to allow the applicant’s adoptive father to become her guardian because of pressure from him with the aim of transferring the applicant’s flat to him. The applicant also noted that in the Kėdainiai Home she was cut off from society and had been deprived of the opportunity to make telephone calls. Her friends could not visit her and she was not allowed to go to the cinema. In the Kėdainiai Home “she was isolated and saw only a fence”. The other parties to the proceedings opposed the applicant’s wish that the guardianship proceedings be reopened.", "42. In her application to the Court, the applicant alleged that during a break in the hearing she had been ordered to follow the judge to her private office. When the applicant had refused, she had been threatened with restraint by psychiatric personnel. In private, the judge had instructed her not to say anything negative about her adoptive father and that, should she not comply, her friend D.G. would also be declared legally incapacitated. As stated in D.G.’s letter seeking rectification of the transcript (paragraph 39 above), after the break was announced the applicant had wished to stay in the hearing room. However, she had been taken away and had returned very depressed ( prislėgta ). Responding to a question by the judge as to her guardianship, the applicant replied: “I agree that [my adoptive father] should be my guardian, because God asks that people be forgiving. I just wish that he [would] take me [away] from [the Kėdainiai Home] to Kaunas, to his place... and let me see D.G. and my friends”.", "43. It appears from the transcript of the hearing that after the break, when giving her submissions to the court, the applicant agreed to keep her adoptive father as guardian, but insisted on being released from institutional care in order to live with her adoptive father. The relevant State institutions – the Kėdainiai Home, the Kaunas Psychiatric Hospital, the prosecutor, the Social Services Department of Kaunas City Council – and the applicant’s guardian’s lawyer each argued that the applicant’s request for reopening was clearly unfounded and should be dismissed.", "44. On 17 November 2005 the Kaunas City District Court refused to reopen the guardianship proceedings on the basis of Article 366 § 1 (6) of the Code of Civil Procedure, ruling that there were no grounds to change the guardian (see Relevant domestic law part below). The court noted that before appointing the applicant’s adoptive father as her guardian, the Kaunas City Council Department of Health had prepared a report on the proposed appointment of the applicant’s guardian and had questioned the applicant, who had not been able to provide an objective opinion about that appointment. The court confirmed that the applicant had not been summoned to the hearing of 21 January 2004, when her guardian was appointed, as the court had taken into consideration the applicant’s mental state and, on the basis of the findings of the relevant health care officials, had not considered her involvement in the hearing necessary. The court further noted that the findings had disclosed tense relations between the applicant and her adoptive father. Even so, the applicant’s adoptive father had been duly performing his duties. The court also referred to statements of the representatives of the Kaunas Psychiatric Hospital and the director of the Kėdainiai Home to the effect that the applicant’s contact with D.G. had had a negative influence on her mental health.", "45. The Kaunas City District Court proceeded to fine D.G. 1,000 Lithuanian litai (LTL) (approximately 290 euros (EUR)) for abuse of process. It noted that D.G. had filed numerous complaints before various State institutions and the courts of alleged violations of the applicant’s rights. Those complaints had prompted several inquiries which had revealed a lack of substantiation. The court noted:", "“... by such an abuse of rights, [D.G.] caused damage to the State, namely the waste of time and money of the court and the participants in the proceedings. The court concludes that [D.G.] has abused her rights ... and the vulnerability of the incapacitated person”.", "46. D.G. appealed against the above decision. She noted, inter alia, that the 21 January 2004 ruling to appoint the applicant’s adoptive father as her guardian had been adopted by judge R.A. The same judge had dismissed the applicant’s request that the court proceedings be reopened, although this was explicitly prohibited by Article 370 § 5 of the Code of Civil Procedure.", "The applicant also submitted a brief in support of D.G.’s appeal, arguing that persons admitted to psychiatric institutions should have a right to know the reasons for their admission. Moreover, they should be able to contact a lawyer who is independent from the institution to which they have been admitted.", "47. The appeal by D.G. was dismissed by the Kaunas Regional Court on 7 February 2006 in written proceedings. The court did not rule on the plea that the district court judge R.A. had been partial.", "48. On 11 May 2006 the Supreme Court declared D.G.’s subsequent appeal on points of law inadmissible, as it had not been submitted by a lawyer and raised no important legal issues.", "49. By a ruling of 7 February 2007 the Kaunas City District Court, following a public hearing attended by social services representatives and the applicant’s legal guardian, granted the guardian’s request to be relieved from the duties of guardian and property administrator. The applicant’s adoptive father had argued that he was no longer fit to be her guardian because of his old age (seventy-seven years at that time) and state of health. The Kėdainiai Home was appointed temporary guardian and property administrator. The applicant was not present at the hearing.", "50. On 25 April 2007, the Kaunas City District Court held a public hearing and appointed the Kėdainiai Home as the applicant’s permanent guardian and administrator of her property rights. The applicant was not present at that hearing; the court did not give reasons for her absence.", "3. Criminal inquiry", "51. On 1 February 2006 a criminal inquiry was opened on the initiative of some of the applicant’s acquaintances, who alleged that the applicant had been the victim of Soviet-style classification of illnesses which was designed to repress those who fall foul of the regime. The complainants submitted that, as a result of the persistent diagnoses of schizophrenia, the applicant had been unlawfully deprived of her liberty, had been ill-treated and had been overmedicated in the Kėdainiai Home, and that her property rights had been violated by her guardian.", "52. On 31 July 2006 the investigation was discontinued, no evidence having been found of an abuse of the applicant’s interests, either pecuniary or personal. It was established that the immovable property belonging to the applicant had been let to a third person, with the proceeds used to satisfy the applicant’s needs. The applicant had had a bank account opened in her name on 6 October 2005, and the deposit made on that date had since been left untouched. Moreover, the applicant’s guardian had transferred to her account the sum received from the sale of their common property. There was thus no indication that the applicant’s adoptive father had abused his position as guardian.", "53. As regards the deprivation of the applicant’s liberty, the prosecutor noted that the applicant had been admitted to an institutional care facility in accordance with the applicable legislation. The prosecutor acknowledged that the freedom of the applicant “to choose her place of residence [was] restricted ( laisvė pasirinkti buvimo vietą yra ribojama )”, but further noted that she was:", "“... constrained to an extent no greater than necessary in order to take due care of her as a legally incapacitated person. The guardian of [the applicant] can change her place of residence without first obtaining a separate official decision; she is not unlawfully hospitalised. Therefore, her placement in the Kėdainiai Home cannot be classified as an unlawful deprivation of liberty, punishable under Article 146 § 2 (3) of the Criminal Code”.", "54. The prosecutor had also conducted an inquiry into an incident which had occurred at the Kėdainiai Home on 25 January 2005. After questioning the personnel of the Home, it was established that on that day the applicant had been placed in the intensive supervision ward ( intensyvaus stebėjimo kambarys ), had been given an additional dose of tranquilisers (2 mg of Haloperidol) and had been tied down ( fiksuota ) for fifteen to thirty minutes by social care staff.", "55. The prosecutor noted the explanation of the psychiatrist at the Home, who admitted that the applicant’s restraint had been carried out in breach of the applicable rules, without the approval of medical personnel. However, after having read written reports on the incident produced by the social care personnel, he considered the tying down to have been undertaken in order to save the applicant’s life and not in breach of her rights.", "56. Questioned by the prosecution as witnesses, social workers at the Kėdainiai Home testified that 25 January 2005 had been the only occasion on which the applicant had been physically restrained and placed in isolation. The measures had only been taken because at that particular time the applicant had shown suicidal tendencies.", "57. The prosecutor concluded that the submissions made by the complainants were insufficient to find that the applicant’s right to liberty had been violated by unnecessary restraint or that she had suffered degrading treatment.", "58. On 30 August 2006 the higher prosecutor upheld that decision.", "4. Complaints to other authorities", "59. With the assistance of D.G., the applicant addressed a number of complaints to various State authorities.", "60. On 30 July 2004, in reply to a police inquiry into the applicant’s complaint of unlawful detention in the Kėdainiai Home, the Kaunas City Council Social Services department wrote that “[in] the last couple of years, relations between the applicant and her adoptive father have been tense. Therefore, on the wish of both of them, until 21 January 2004 [the applicant’s] legal guardian was D.G. and not her adoptive father”.", "61. The Ministry of Social Affairs also commissioned an inquiry, including conducting an examination of the applicant’s living conditions at the Kėdainiai Home and interviews with the applicant and the management of the Home. The commission established that the applicant’s living conditions were not exemplary ( nėra labai geros ), but it was promised that the inhabitants would soon move to new premises with better conditions. However, it was noted that the applicant received adequate care. The commission opined that it was advisable not to disturb the applicant, given her vulnerability and instability. It was also emphasised that the State authorities were under an obligation to be diligent as regards supervision of how the guardians use their rights.", "62. On 6 January 2005 D.G. filed a complaint with the police, alleging that the applicant had been unlawfully deprived of her liberty and of contact with people from outside the Kėdainiai Home. By letter of 28 February 2005, the police replied that no violation of the applicant’s rights had been found. They explained that, in accordance with the internal rules of the Kėdainiai Home, residents could be visited by their relatives and guardians, but other people required the approval of the management. At the request of the applicant’s guardian, the management had prohibited other people from visiting her.", "63. On 17 May 2005 upon the inspection performed by food safety authorities out-of-date frozen meat (best before 12 May 2005) was found in the Kėdainiai Home. However, there was no indication that that meat would have been used for cooking. On 20 February 2006 the Kaunas City Governor’s office inspected the applicant’s living conditions in Kėdainiai and found no evidence that she could have been receiving food of bad quality.", "64. On 28 April 2006 the applicant complained to the Ministry of Health about her admission to long-term care. By letter of 12 May 2006, the Ministry noted that no court decision to hospitalise the applicant had been issued, and that she had been admitted to the Kėdainiai Home after her adoptive father had entrusted that institution with her care.", "65. On 6 October 2006, the Ministry of Health and Social Services, in response to the applicant’s complaints of alleged violations of her rights, wrote to the applicant stating that it was not possible to investigate her complaints because she had left the Kėdainiai Home and her place of living was unknown. Prosecutors were in the middle of a pre-trial investigation into the circumstances of the applicant’s disappearance from where she had previously been living.", "66. By a decision of 18 December 2006, the Kaunas City District prosecutor discontinued a pre-trial investigation into alleged unlawful deprivation of the applicant’s liberty." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "67. Article 21 of the Lithuanian Constitution prohibits torture or degrading treatment of persons. Article 22 thereof states that private life is inviolable.", "68. The Law on Mental Heath Care provides:", "Article 1", "“1. Main Definitions", "...", "5. “Mental health facility” means a health care institution (public or private), which is accredited for mental health care. If only a certain part (a “unit”) of a health care institution has been accredited to engage in mental health care, the term shall only apply to the unit. In this Law, the term is also applicable to psychoneurological facilities...”", "Article 13", "“The parameters of a patient’s health care shall be determined by a psychiatrist, seeking to ensure that the terms of their treatment and nursing offer the least restrictive environment possible.", "The actions of a mentally ill person may be subject to restrictions only provided that the circumstances specified in section 27 of this Law are manifest. A note to that effect must be promptly made in the [patient’s] clinical record.”", "Article 19", "“In emergency cases, in seeking to save a person’s life when the person himself is unable to express his will and his life is seriously endangered, necessary medical care may be taken without the patient’s consent.", "Where instead of a patient’s consent, the consent of his representative is required, the necessary medical care may be provided without the consent of such person provided that there is insufficient time to obtain it in cases where immediate action is needed to save the life of the patient.", "In those cases when urgent action must be taken in order to save a patient’s life, and the consent of the patient’s representative must be obtained in lieu of the patient’s consent, immediate medical aid may be provided without the said consent, if there is not enough time to obtain it.”", "69. Article 24 of the Law on Mental Health Care stipulated that if a patient applied with a request to be hospitalised, he or she could be hospitalised only provided that: 1) at least one psychiatrist, upon examining the patient, recommended that he or she had to be treated as an inpatient at a mental health facility; 2) he or she had been informed about his or her rights at a mental health facility, the purpose of hospitalisation, the right to leave the psychiatric facility and restrictions on the right, as specified in Article 27 of the law. The latter provision read that a person who was ill with a severe mental illness and refused hospitalisation could be admitted involuntarily to the custody of the hospital only if there was real danger that by his or her actions he or she was likely to commit serious harm to his or her health or life or to the health or life of others. When the circumstances specified in Article 27 of that law did exist, the patient could be involuntarily hospitalised and given treatment in a mental health facility for a period not exceeding 48 hours without court authorisation. If the court did not grant the authorisation within 48 hours, involuntary hospitalisation and involuntary treatment had to be terminated (Article 28).", "70. As concerns legal incapacity and guardianship, the Civil Code provides:", "Article 2.10. Declaration of incapacity of a natural person", "“1. A natural person who, as a result of mental illness or imbecility, is not able to understand the meaning of his actions or control them may be declared incapacitated. The incapacitated person shall be placed under guardianship.", "2. Contracts on behalf and in the name of a person declared incapacitated shall be concluded by his guardian...", "3. Where a person who was declared incapacitated gets over his illness or the state of his health improves considerably, the court shall reinstate his capacity. After the court judgement becomes res judicta, guardianship of the said person shall be revoked.", "4. The spouse of the person, parents, adult children, a care institution or a public prosecutor shall have the right to request the declaration of a person’s incapacity by filing a declaration to the given effect. They shall also have the right to apply to the courts requesting the declaration of a person’s capacity.”", "Article 3.238. Guardianship", "“1. Guardianship shall be established with the aim of exercising, protecting and defending the rights and interests of a legally incapacitated person.", "2. Guardianship of a person subsumes guardianship of the person’s property, but if necessary, an administrator may be designated to manage the person’s property.”", "Article 3.240. Legal position of a guardian or curator", "“1. Guardians and curators shall represent their wards under law and shall defend the rights and interests of legally incapacitated persons or persons of limited active capacity without any special authorisation.", "2. The guardian shall be entitled to enter into all necessary transactions in the interests and on behalf of the represented legally incapacitated ward...”", "Article 3.241. Guardianship and curatorship authorities", "“1. Guardianship and curatorship authorities are the municipal or regional [government] departments concerned with the supervision and control of the actions of guardians and curators.", "2. The functions of guardianship and curatorship in respect of the residents of a medical or educational institution or [an institution run by a] guardianship (curator) authority who have been declared legally incapacitated or of limited active capacity by a court shall be performed by the respective medical or educational establishment or guardianship (curator) authority until a permanent guardian or curator is appointed...”", "Article 3.242. Appointment of a guardian or a curator", "“1. Having declared a person legally incapacitated or of limited active capacity, the court shall appoint the person’s guardian or curator without delay.", "...", "3. Only a natural person with legal capacity may be appointed a guardian or a curator, [and] provided he or she gives written consent to that effect. When appointing a guardian or curator, account must be taken of the person’s moral and other qualities, his or her capability of performing the functions of a guardian or curator, relations with the ward, the guardian’s or curator’s preferences and other relevant circumstances...”", "Article 3.243. Performance of the duties of a guardian or a curator", "“...", "6. After the circumstances responsible for the declaration of the ward’s legal incapacity or limited active capacity [are no longer in existence], the guardian or curator shall apply to the courts for the cancellation of guardianship or curatorship. Guardianship and curatorship authorities, as well as prosecutors, shall also have a right to apply to the courts for the cancellation of guardianship or curatorship.”", "Article 3.277. Placing under guardianship or curatorship", "“1. An adult person declared legally incapacitated by the courts shall be placed under guardianship by a court judgment.”", "Article 3.278. Monitoring of the guardian’s or the curator’s activities", "“1. Guardianship and curatorship authorities shall be obliged to monitor whether the guardian/curator is fulfilling his or her duties properly.”", "71. The Code of Civil Procedure stipulates that rights and interests of [disqualified] natural persons protected by law shall be defended in court by their representatives (parents, foster-parents, guardians) (Article 38 § 2). A prosecutor has the right to submit a claim to protect the public interest (Article 49).", "72. Article 366 § 1 (6) of the Code of Civil Procedure provides that proceedings may be reopened if one of the parties to them was incapacitated and did not have a representative.", "Article 370 § 5 stipulates that when deciding upon a request that proceedings be reopened, the judge who took the decision against which the request has been lodged may not participate.", "73. An application to declare a person legally incapacitated may be submitted by a spouse of that person, his or her parents or full-age children, a guardianship/care authority or a public prosecutor (Article 463). The parties to the proceedings for incapacitation consist, besides the applicant, of the person whose legal capacity is at issue, as well as the guardianship (care) authority. If it is impossible, due to the state of health, confirmed by an expert opinion, of the natural person whom it has been requested to declare incapacitated, to call and question him or her in court or to serve him or her with court documents, the court shall hear the case in the absence of the person concerned (Article 464 §§ 1 and 2).", "74. Article 491 § 2 of the Code of Civil procedure stipulates that the courts are obliged to take all measures necessary to ensure that the rights and interests of persons who need guardianship are protected.", "75. Pursuant to Article 507 § 3 of the Code of Civil Procedure, a case concerning the establishment of guardianship and the appointment of a guardian shall be heard by means of oral proceedings. The guardianship authority, the person declared incapacitated, the person recommended to be appointed as guardian and any parties interested in the outcome of the case must be notified of the hearing.", "The case is to be heard with the attendance of a representative of the guardianship authority, who is to submit the authority’s opinion to the court. The person to be appointed the guardian must also attend.", "The person declared incapacitated is entitled to give his or her opinion at the hearing, if his or her health allows, as regards the prospective appointment of the guardian. The court may hold that it is necessary that the person declared incapacitated attend the hearing.", "Article 507 § 4 provides that in appointing a guardian his moral and other qualities, his capability to perform the functions of a guardian, his relationship with the person who requires guardianship, and, if possible, the wishes of the person who requires guardianship or care shall be taken into consideration.", "76. The Law on Prosecutor’s Office provides that prosecutors have the right to protect the public interest, either on their own initiative or if the matter has been brought to their attention by a third party. In so doing, prosecutors may institute civil or criminal proceedings.", "77. In a ruling of 9 June 2003 the Supreme Court stated that a public prosecutor could submit an application for reopening of proceedings, if the court’s decision had been unlawful and had infringed the rights of a legally incapacitated person having limited opportunity to defend his or her rights or lawful interests.", "78. The Law on Social Services provides that the basic goal of social services is to satisfy the vital needs of an individual and, when an individual himself is incapable of establishing such conditions, to create living conditions for him that do not debase his dignity (Article 2 (2)).", "79. The Requirements for residential social care institutions and the Procedure for admission of persons thereto, approved by Order No. 97 of the Minister of Social Security and Labour on 9 July 2002 and published in State Gazette ( Valstybės žinios ) on 31 July 2002, regulate the methods of admission to a social care institution. The rules provide that an individual is considered to be eligible for admission to such an institution, inter alia, if he or she suffers from mental health problems and therefore is not able to live on his or her own. The need for care is decided by the municipal council of the place of his or her residence in cooperation with the founder of the residential care institution (the county governor). Individuals are admitted to care institutions in the event that the provision of social services at their home or at a non-statutory care establishment is not possible. A guardian who wishes to have a person admitted to a residential care institution must submit a request in writing to the social services department of the relevant municipal council. The reasons for and motives behind admission must be indicated. An administrative panel of the municipal council, comprising at least three persons, is empowered to decide on the proposed admission. Representatives of the institution to which the person is to be admitted as well as the founder (the governor) must participate.", "80. The Government submitted to the Court an application by the Kėdainiai Home of 6 October 2009 to the Kaunas City District Court for the restoration of capacity ( dėl neveiksnumo panaikinimo ) of an individual, G.P. The Kėdainiai Home had been G.P.’s guardian. The director of the Kėdainiai Home had noted that after G.P.’s condition had become better and he had become more independent, it had accordingly become necessary for the court to order a fresh psychiatric examination and make an order restoring G.P.’s legal capacity.", "81. The Bylaws of the Kėdainiai Home ( Kėdainių pensionato gyventojų vidaus tvarkos taisyklės ), as approved by an order of the director dated 17 March 2003, provide that the institution shall admit adults who suffer from mental health problems and are in need of care and medical treatment. A patient may leave the institution for up to ninety days per year, but only to visit his or her court-appointed guardian. The duration and conditions of such leave must be confirmed in writing. The rules also stipulate that a patient is not allowed to leave the grounds of the facility without informing a social worker. If a patient decides to leave the Kėdainiai Home on his or her own, the management must immediately inform the police and facilitate finding him or her. A patient may be visited by relatives and guardians. Other visitors are allowed only upon the management’s approval. The patients may have personal mobile phones. They may follow a religion, attend church services and receive magazines.", "82. In a ruling of 11 September 2007 in civil case No. 3K-3-328/2007, the Supreme Court noted that the person whom it is asked to declare incapacitated is also a party to the proceedings (Article 464 § 1 of the Code of Civil Procedure). As a result, he or she enjoys the rights of an interested party, including the right to be duly informed of the place and time of any hearing. The fact that the case had been heard in the absence of D.L. – the person whom the court had been asked to declare incapacitated – was assessed by the Supreme Court as a violation of her right to be duly informed of the place and time of court hearings, as well as of other substantive procedural rights safeguarding her right to a fair trial. The Supreme Court also found that by failing to hear the person concerned and without making sure that she had been aware of the proceedings, the first ‑ instance court had breached the principle of equality of arms, as well as D.L.’s right to appeal against the decision to declare her incapacitated, because the decision had not been delivered to her. The Supreme Court also referred to Principle no. 13 of Recommendation No. R (99) 4 by the Committee of Ministers of the Council of Europe (see paragraph 85 below), stating that the person concerned should have the right to be heard in any proceedings which could affect his or her legal capacity. This procedural guarantee should be applicable to the fullest extent possible, at the same time bearing in mind the requirements of Article 6 of the European Convention on Human Rights. In this regard, the Supreme Court also referred to the Court’s case-law to the effect that a mental illness could result in appropriate restrictions of a person’s right to a fair hearing. However, such measures should not affect the very essence of that right ( Golder, Winterwerp, both cited below, and Lacárcel Menéndez v. Spain, no. 41745/02, 15 June 2006).", "83. In the same ruling, the Supreme Court also emphasised that determining whether the person can understand his or her actions was not only a scientific conclusion, namely that of forensic psychiatry. It was also a question of fact which should be established by the court upon assessing all other evidence and, if necessary, upon hearing expert evidence. Taking into consideration the fact that the declaration of a person’s incapacity is a very serious interference into his or her right to private life, one can only be declared incapacitated in exceptional cases.", "III. RELEVANT INTERNATIONAL DOCUMENTS", "A. Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106)", "84. This Convention entered into force on 3 May 2008. It was signed by Lithuania on 30 March 2007 and ratified on 18 August 2010. The relevant parts of the Convention provide:", "Article 12 Equal recognition before the law", "“1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.", "2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.", "3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.", "4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.", "5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.”", "Article 14 Liberty and security of person", "“1. States Parties shall ensure that persons with disabilities, on an equal basis with others:", "( a ) Enjoy the right to liberty and security of person;", "( b ) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.", "2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.”", "B. Recommendation No. R (99) 4 of the Committee of Ministers of the Council of Europe on principles concerning the legal protection of incapable adults (adopted on 23 February 1999)", "85. The relevant parts of this Recommendation read as follows:", "Principle 2 – Flexibility in legal response", "“1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal response to be made to different degrees of incapacity and various situations.", "...", "4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.”", "Principle 3 – Maximum reservation of capacity", "“1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.", "2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so. ...”", "Principle 6 – Proportionality", "“1. Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned.", "2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention. ...”", "Principle 13 – Right to be heard in person", "“The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.”", "Principle 14 – Duration review and appeal", "“1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews.", "...", "3. There should be adequate rights of appeal.”", "C. The 25 June 2009 report on visit to Lithuania by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), visit from 28 to 30 April 2008", "86. This report outlines the situation of persons placed by the public authorities in social care homes for people with mental disorders or mental deficiency. Part C of the report (paragraphs 120, 125-132) analyses situation in the Skemai Residential Care Home.", "87. The CPT noted that Lithuanian legislation does not provide for an involuntary placement procedure in social welfare establishments. At Skemai Residential Care Home, residents were admitted on their own application or that of their guardian through the competent district authority (Panevėžys District Administration). The decision on the placement was taken by the social affairs unit of Panevėžys District Administration on the basis of a report drawn up by a social worker and a medical certificate issued by a psychiatrist stating that the applicant’s mental health permitted his/her placement in a social welfare institution of this type. An agreement was then signed between the applicant and the authorised representative of the local government for an indefinite period.", "That said, it appeared that even legally competent residents admitted on the basis of their own application were not always allowed to leave the home when they so wished. The delegation was informed that their discharge could only take place by decision of the social affairs unit of the Panevėžys District Administration. This was apparently due to the need to ascertain that discharged residents had a place and means for them to live in the community; nevertheless, this meant that such residents were de facto deprived of their liberty (on occasion for a prolonged period).", "88. Specific reference was made to the situation of residents deprived of their legal capacity. Such persons could be admitted to the Skemai Home solely on the basis of the application of their guardian. However, they were considered to be voluntary residents, even when they opposed such a placement. In the CPT’s view, placing incapacitated persons in a social welfare establishment which they cannot leave at will, based solely on the consent of the guardian, entailed a risk that such persons will be deprived of essential safeguards.", "89. It was also a matter of concern that all 69 residents who were deprived of their legal capacity were placed under the guardianship of the Home. In this connection, the delegation was surprised to learn that in the majority of these cases, the existing guardianship arrangements had been terminated by a court decision upon admission to the establishment and guardianship of the person concerned entrusted to the Home.", "The CPT stressed that one aspect of the role of a guardian is to defend the rights of incapacitated persons vis-à-vis the hosting social welfare institution. Obviously, granting guardianship to the very same institution could easily lead to a conflict of interest and compromise the independence and impartiality of the guardian. The CPT reiterated its recommendation that the Lithuanian authorities strive to find alternative solutions which would better guarantee the independence and impartiality of guardians.", "90. In the context of discharge from psychiatric institution procedures, the CPT recommended that the Lithuanian authorities took steps to ensure that forensic patients were heard in person by the judge in the context of judicial review procedures. For that purpose, consideration may be given to the holding of hearings at psychiatric institutions", "91. Lastly, the CPT found that at the establishment visited the existing arrangements for contact with the outside world were generally satisfactory. Patients/residents were able to send and receive correspondence, have access to a telephone, and receive visits.", "THE LAW", "I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS", "A. The parties’ submissions", "92. The Government argued, first, that the present application had been entirely based on knowingly untrue facts and therefore should be declared inadmissible for “abuse of the right of individual petition”, pursuant to Article 35 § 3 of the Convention. For the Government, the content of the present application was contrary to the purpose of the right of individual application, as the information provided therein was untrue or insidious. An appropriate and carefully selected form of social care for the applicant had been portrayed as detention. Appropriate medical care and striving to save her life had been presented as her torture. The facts concerning the reopening of the guardianship proceedings were also untrue, as well as those related to the applicant’s complaints of the alleged refusal of the Kėdainiai Home’s management to allow the applicant to have personal visits and of the censorship of her communications.", "93. Alternatively, the Government submitted that the application had been prepared in its entirety and lodged by D.G. and not by the applicant. They held highly critical views of D.G., claiming that she had been “not only deceiving the Court but also harming a vulnerable, mentally-ill person”. The Government contended in the present case that the term “applicant” referred to D.D. only in a formal sense, as in reality the person whose will the application reflected had been D.G., and, moreover, that will had clearly contradicted the interests of D.D., who had been misled and manipulated by D.G. It followed that the application as a whole was incompatible ratione personae with the provisions of the Convention.", "94. The applicant’s lawyer considered that the Government’s allegation of factual inaccuracy was best understood by reference to the fact that the parties to this application held diametrically opposed perspectives in relation to the facts presented. Both the applicant and the Government saw the same facts in a totally different light and held incompatible views on the way in which the rights of persons with psychosocial disabilities should be respected under the Convention.", "95. As to the Government’s second argument, the applicant’s lawyer submitted that the application had been lodged with D.D.’s fully-informed consent. D.D. had been keenly aware of the proceedings and had spoken of them frequently. Attention had to be drawn to the vulnerability and isolation of persons in the applicant’s position, as well as the fact that domestic legislation had denied her legal standing to initiate any legal proceedings whatsoever. Consequently, it was ironic that the Government had not recognised D.D.’s ability to represent herself in domestic proceedings, requiring by law that she did so via another person, but that before the Court the Government seemed to insist that the applicant should act alone.", "Lastly, the applicant’s lawyer pointed out that D.G. was the applicant’s closest friend, former psychotherapist and her first guardian. Moreover, since 8 January 2008 the applicant had been represented before the Court by a legal team.", "B. The Court’s assessment", "96. The Court first turns to the Government’s objection as to the applicant’s victim status, and, in particular, their allegation that the application does not express the true will of D.D. In this connection, it recalls that the existence of a victim of a violation, that is to say, an individual who is personally affected by an alleged violation of a Convention right, is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings (see Poznanski and Others v. Germany, (dec.), no. 25101/05, 3 July 2007).", "97. Having regard to the documents presented, the Court notes that the original application form bears D.D.’s signature, without any indication that that signature could be forged (see, by converse implication, Poznanski, cited above). In paragraph 13 of the application, D.D. wrote that back in 2000, on her adoptive father’s initiative, she had been unlawfully declared incapacitated and in 2004 admitted to the Kėdainiai Home “for an indefinite duration”. She asked that, for the purposes of the proceedings before this Court, her adoptive father not be considered her legal representative, requesting that D.G. take on that role. After the application was communicated to the Government, the applicant was reminded that, in accordance with paragraph 4 (a) of Rule 36 of the Rules of Court, she had to designate a legal representative, which she did by appointing a lawyer, Mr H. Mickevičius. In his observations in reply to those of the Government, the applicant’s lawyer followed the initial complaints as presented by D.D. In the light of the above, the Court holds that D.D. has validly lodged an application in her own name and thus has the status of “victim” in respect of the complaints listed in her application. The Government’s objection as to incompatibility ratione personae should therefore be dismissed.", "98. The Court further considers that the Government’s objection as to the applicant’s alleged abuse of the right to petition, on account of allegedly incorrect information provided in her application form, is closely linked to the merits of her complaints under Articles 3, 5, 6, 8 and 9 of the Convention. The Court thus prefers to join the Government’s objection to the merits of the case and to examine them together.", "99. Lastly, the Court observes that the applicant submitted several complaints under different Convention provisions. Those complaints relate to the proceedings concerning her involuntary admission to a psychiatric institution, the appointment of her guardian, her inability to receive personal visits, interference with her correspondence, involuntary medical treatment, and so forth. Whilst noting that the complaint as to the initial appointment of a guardian has been raised outside the six months time-limit (see paragraph 19 above), the Court sees fit to start with the complaint related to the court proceedings for a change of her legal guardian and then to examine the applicant’s admission to the Kėdainiai Home and the complaints stemming from it.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE PROCEEDINGS FOR A CHANGE OF LEGAL GUARDIAN", "100. The applicant complained that she had not been afforded a fair hearing in respect of her application for reopening of her guardianship proceedings and had not been able to have her legal guardian changed. In support of her complaints, the applicant cited Articles 6 § 1 and 8 of the Convention. In addition, relying upon Article 13 of the Convention, the applicant argued that she had not been afforded an effective remedy to complain of the alleged violations.", "The Court considers that the applicant’s complaints fall to be examined under of Article 6 § 1 of the Convention, which, in so far as relevant, provides:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”", "A. Submissions by the parties", "1. The applicant", "101. The applicant submitted that the blanket ban on her right of access to court went to the heart of her right to a fair hearing and had been in breach of Article 6 § 1 of the Convention. She pointed out that on 15 September 2000 she had been declared incapacitated during proceedings that had been initiated by her adoptive father. Solely on the basis of the medical report of 19 July 2000, the Kaunas City District Court had deemed that the applicant was not to be summoned. As a result she had not taken part in those proceedings. The local authority, whose presence had been obligatory, had not made a significant contribution during the hearing and had endorsed the conclusions of the medical report. The Kaunas District Court had not provided any reasons for its decision, other than reiterating the conclusions of the forensic experts. The district court had chosen not to assess other evidence which could have potentially shed light on the applicant’s circumstances, such as that which could have arisen by summoning the applicant or other witnesses, or by questioning the authors of the psychiatric report in person. The judge had not found it necessary to examine whether any ulterior reasons had underlain the incapacitation request.", "102. The applicant argued, further, that she had not been given the opportunity to participate in any of the guardianship proceedings. She had never been notified of or summoned to any of the four sets of proceedings concerning the appointment or discharge of her guardian/property administrator. For the applicant, there had been no medical or other reasons relating to her health that would have precluded her from participating. Nonetheless, the courts had invariably based their decisions on the views of the local authority without examining the personal circumstances of the applicant. The proceedings had been very summary in nature, the hearings had been brief and the rationale underpinning judgments had been almost non-existent. On 15 September 2000 the Kaunas City District Court had appointed her adoptive father as her guardian without any involvement on her part. As a result, not only had she been unable to object to his appointment, but she had also been barred from appealing against that decision.", "103. The applicant emphasised that the review proceedings in 2005 initiated by her with the assistance of D.G. had been the only opportunity that she had ever had to put her point of view across before a court of law. On this occasion, she had personally addressed the Kaunas City District Court on a number of issues of the utmost importance to her, such as her incapacitation, the identity of her guardian and her admission to an institution. However, the district court had chosen to dismiss her action on narrow procedural grounds.", "104. The applicant’s main objection with regard to the review proceedings lay in the district court’s decision to turn down her express request to be provided with independent legal aid. The explanation that the applicant was already represented by her guardian’s lawyer had misunderstood the competing interests of the two parties. The effect had been to severely prejudice the ability of the applicant to engage with the procedural aspects of the hearing on which the district court’s decision had turned.", "105. Lastly, the applicant argued that she had been financially able to afford to employ a lawyer to represent her at that or any other of the hearings. However, she had been denied access to her own money, and at many of the hearings her interests and those of the person with control over her funds had been divergent. She concluded that in view of her vulnerable position, the procedural complexity of the proceedings and the high stakes thereof, Article 6 § 1 of the Convention had required that she be provided with free legal aid.", "2. The Government", "106. As to the applicant’s complaint that she had not been afforded a fair hearing in relation to her request that the proceedings by which her guardian was appointed be reopened, the Government referred to the Court’s case ‑ law to the effect that the right of access to court is not absolute and that the States have a certain margin of appreciation in assessing what might be the best policy in this field ( Golder v. the United Kingdom, 21 February 1975, § 38, Series A no. 18). That was especially true as regards persons of unsound mind, and the Convention organs had acknowledged that such restrictions were not in principle contrary to Article 6 § 1 of the Convention, where the aim pursued was legitimate and the means employed to achieve that aim were proportionate ( G.M. v. the United Kingdom, no. 12040/86, Commission decision of 4 May 1987, Decisions and Reports (DR) 52, p. 269).", "107. Turning to the particular situation of the applicant, the Government noted that domestic law did not allow a legally incapacitated person to lodge a petition seeking that his or her guardianship be changed. As the applicant had deemed that her adoptive father was not a suitable person to be her guardian, the authorities responsible for oversight of guardians (the Social Services Department of Kaunas City Council) or a public prosecutor could have submitted an application for reopening of the proceedings. Nevertheless, the Kaunas City District Court had accepted the applicant’s request for reopening for examination and on 7 November 2005 had reviewed her case with a high degree of care.", "108. The hearing of 7 November 2005 at the Kaunas City District Court had taken place in the presence of the applicant, her guardian (her adoptive father) and his lawyer, and D.G., as well as in the presence of the representatives of the relevant State authorities. Whilst admitting that at that hearing the applicant had asked to be assisted by a separate lawyer, the Government submitted that the court had not been able to grant the applicant’s request because of the decision of 15 September 2000 declaring her legally incapacitated. Even so, the applicant’s interests had been defended by the representative of the Kėdainiai Home, the representative of the Social Services Department and the public prosecutor.", "109. The Government contended that during the hearing of 7 November 2005 the applicant had not sustained her request that D.G. be appointed as her new guardian. Contrary to what the applicant had stated to the European Court, in her submissions at the hearing at issue she had agreed to keep her adoptive father as her guardian, saying that she loved him, but had expressed her wish to be released from the Kėdainiai Home. For the Government, it appeared from the transcript of the hearing that this statement had been made by the applicant before the break, but not after, contrary to her allegation of being “threatened with restraint” for disobedience.", "110. The Government pointed out that, pursuant to Article 507 § 3 of the Code of Civil Procedure, the appointment of a guardian required to be heard in the presence of a representative of the authority overseeing guardians, who was required to submit the authority’s conclusions to the court, and the person to be appointed as guardian. Given that both of these persons had taken part in the hearing of 21 January 2004, the Kaunas City District Court in its decision of 17 November 2005 had reasonably found that the applicant had been properly represented at the hearing of 21 January 2004, and thus the provision on which the applicant had based her request to reopen the proceedings had not been breached.", "111. Lastly, in their observations of 15 September 2008 the Government noted that as regards incapacitation proceedings the ministries had prepared legislative amendments to the Civil Code and the Code of Civil Procedure, which would be submitted to Parliament. The proposed amendments provide for compulsory representation of a person facing incapacitation proceedings before a court by a lawyer.", "In the light of the preceding arguments, the Government considered that the applicant’s complaint was manifestly ill-founded.", "3. The intervening parties", "112. The representatives of Harvard Law School submitted that in all cases a court or other judicial authority must ensure that a representative acts solely in the interests of the incapacitated person. In any case in which it is objectively apparent that the person being represented does not accept or assent to the steps taken by a representative, those matters must be explored by the judicial authorities. The judicial authorities must exercise thorough, additional supervision in all cases in which there is a filter between a person and a court, such as when a person is represented by another individual. This remains true even where the representative was appointed by a court.", "113. The European Group of National Human Rights Institutions noted that the European Convention on Human Rights guaranteed rights and freedoms that must be protected regardless of an individual’s level of capacity. They also saw it important to mention the Court’s judgment in Winterwerp v. the Netherlands (24 October 1979, Series A no. 33), where the Court concluded that although mental illness may render legitimate certain limitations upon the exercise of the “right to access to court”, it could not warrant the total absence of that right as embodied in Article 6 § 1.", "B. The Court’s assessment", "1. Admisibility", "114. The parties did not dispute the applicability of Article 6, under its “civil” head, to the proceedings at issue, and the Court does not see any reason to hold otherwise (see Winterwerp, cited above, § 73, and Matter v. Slovakia, no. 31534/96, § 51, 5 July 1999).", "115. The Court notes that the applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "2. Merits", "(a) General principles", "116. In most of the previous cases before the Court involving “persons of unsound mind”, the domestic proceedings concerned their detention and were thus examined under Article 5 of the Convention. However, the Court has consistently held that the “procedural” guarantees under Article 5 §§ 1 and 4 are broadly similar to those under Article 6 § 1 of the Convention (see Stanev v. Bulgaria [GC], no. 36760/06, § 232, 17 January 2012 and the case-law cited therein). Therefore, in deciding whether the proceedings in the present case for the reopening of the guardianship appointment were “fair”, the Court will have regard, mutatis mutandis, to its case-law under Article 5 § 1 (e) and Article 5 § 4 of the Convention.", "117. In the context of Article 6 § 1 of the Convention, the Court accepts that in cases involving a mentally-ill person the domestic courts should also enjoy a certain margin of appreciation. Thus, for example, they can make appropriate procedural arrangements in order to secure the good administration of justice, protection of the health of the person concerned, and so forth (see Shtukaturov v. Russia, no. 44009/05, § 68, ECHR 2008).", "118. The Court accepts that there may be situations where a person deprived of legal capacity is entirely unable to express a coherent view or give proper instructions to a lawyer. It considers, however, that in many cases the fact that an individual has to be placed under guardianship because he lacks the ability to administer his affairs does not mean that he is incapable of expressing a view on his situation and thus of coming into conflict with the guardian. In such cases, when the conflict potential has a major impact on the person’s legal situation, such as when there is a proposed change of guardian, it is essential that the person concerned should have access to court and the opportunity to be heard either in person or, where necessary, through some form of representation. Mental illness may entail restricting or modifying the manner of exercise of such a right, but it cannot justify impairing the very essence of the right, except in very exceptional circumstances such as those mentioned above. Indeed, special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental health issues, are not fully capable of acting for themselves (see, mutatis mutandis, Winterwerp, cited above, § 60).", "119. The Court reiterates that the key principle governing the application of Article 6 is fairness. Even in cases where an applicant appears in court notwithstanding lack of assistance by a lawyer and manages to conduct his or her case in the face of all consequent difficulties, the question may nonetheless arise as to whether this procedure was fair (see, mutatis mutandis, McVicar v. the United Kingdom, no. 46311/99, §§ 50-51, ECHR 2002-III). The Court also recalls that there is the importance of ensuring the appearance of the fair administration of justice and a party to civil proceedings must be able to participate effectively, inter alia, by being able to put forward the matters in support of his or her claims. Here, as with other aspects of Article 6, the seriousness of what is at stake for the applicant will be of relevance to assessing the adequacy and fairness of the procedures (see P., C. and S. v. the United Kingdom, no. 56547/00, § 91, ECHR 2002-VI).", "(b) Application to the present case", "120. Turning to the circumstances of the instant case, the Court again notes that it cannot examine the applicant’s initial placement under guardianship (see paragraph 99 above). Even so, the Court cannot overlook the fact that back in 2000 the applicant did not participate in the court proceedings for her incapacitation. In particular, nothing suggests that the court notified the applicant of its own accord of the hearing at which her personal autonomy in almost all areas of life was at issue, including the eventual limitation of her liberty (see paragraph 12 above). Furthermore, as transpires from the decision of the Kaunas City District Court of 15 September 2000, it ruled exclusively on the basis of the medical panel’s report, without having summoned the medical experts who authored the report for questioning. Neither did the court call to testify any other witnesses who could have shed some light as to the personality of the applicant. Accordingly, the applicant was unable to participate in the proceedings before the Kaunas City District Court in any form. Given that the potential finding of the applicant being of unsound mind was, by its very nature, largely based on the applicant’s personality, her statements would have been an important part of the applicant’s presentation of her case, and virtually the only way to ensure adversarial proceedings (see, mutatis mutandis, Kovalev v. Russia, no. 78145/01, §§ 35-37, 10 May 2007; also see Principle 13 of the Recommendation No. R (99) 4 by the Council of Europe).", "121. The Court also notes that on 21 January 2004 the Kaunas City District Court appointed the applicant’s adoptive father as her legal guardian. The applicant was again not summoned because the court apparently considered her attendance to be unnecessary.", "122. Next, the Court turns to the proceedings regarding the change of the applicant’s guardianship in 2005. The Court notes that there is no indication that at that moment in time the applicant was suffering from an incapacity of such a degree that her personal participation in the proceedings would have been meaningless. Although health care officials had considered that her involvement in the proceedings relating to her initial placement under guardianship in 2000 was unnecessary, as she had apparently been unable to provide them with an objective opinion (see paragraph 11 above), she did in fact participate in the hearing relating to the change of guardian on 7 November 2005. Indeed, she not only stated unequivocally that she maintained her request that the guardianship proceedings be reopened and asked to be assisted by a lawyer but also made a number of other submissions about the proceedings and expressed a clear view on various matters. In particular, the applicant emphasised that she had not been summoned to the hearing during which her adoptive father had been appointed her guardian. She also expressed her desire to leave the Kėdainiai Home. Taking into account the fact that the applicant was an individual with a history of psychiatric troubles, and the complexity of the legal issues at stake, the Court considers that it was necessary to provide the applicant with a lawyer.", "123. The Government argued that the Kaunas City District Court’s finding that the applicant, who lacked legal capacity, had been properly represented by her adoptive father’s lawyer had been correct and in compliance with domestic law. However, the crux of the complaint is not the legality of the decision under domestic law but the “fairness” of the proceedings from the standpoint of the Convention and the Court’s case ‑ law.", "124. As emerges from the materials before the Court, the relationship between the applicant and her adoptive father has not always been positive. Quite the contrary, on numerous occasions the applicant had contacted State authorities claiming that there was a dispute between the two of them, which culminated in her being deprived of legal capacity and her liberty (see paragraphs 32, 33 and 60 above). What is more, the social services had also noted disagreement between the applicant and her adoptive father (see paragraph 18 above). Lastly, on at least one occasion the applicant’s adoptive father had himself acknowledged their strained relationship (see paragraph 14 above). Accordingly, the Court finds merit in the applicant’s argument that, because of the conflicting interests of her and her legal guardian, her guardian’s lawyer could in no way have represented her interests properly. In the view of the Court, the interests of a fair hearing required that the applicant be granted her own lawyer.", "125. The Government suggested that a representative of the social services and the district prosecutor attended the hearing on the merits, thus protecting the applicant’s interests. However, in the Court’s opinion, their presence did not make the proceedings truly adversarial. As the transcript of the hearing of 7 November 2005 shows, the representatives of the social services, the prosecutor, the doctors from the Kėdainiai Home and the Kaunas Psychiatric Hospital clearly supported the position of the applicant’s adoptive father – that he should remain D.D.’s legal guardian.", "126. Finally, the Court recalls that it must always assess the proceedings as a whole (see C.G. v. the United Kingdom, no. 43373/98, § 35, 19 December 2001). In particular, and turning to the spirit in which the hearing of 7 November 2005 was held, the Court notes that the judge refused a request by D.G. that an audio recording be made. Be that as it may, the Court is not able to overlook the applicant’s complaint, although denied by the Government, that the judge did not allow her to sit near D.G., the only person whom the applicant trusted. Neither can the Court ignore the allegation that during the break the applicant was forced to leave the hearing room and to go to the judge’s office, after which measure the applicant declared herself content (see paragraphs 41 and 42 above). Against this background, the Court considers that the general spirit of the hearing further compounded the applicant’s feelings of isolation and inferiority, taking a significantly greater emotional toll on her than would have been the case if she would have had her own legal representation.", "127. In the light of the above considerations and taking into account the events that preceded the examination of the applicant’s request for reopening of her guardianship proceedings, the Court concludes that the proceedings before the Kaunas City District Court on 7 November 2005 were not fair. Accordingly, the Government’s preliminary objection of abuse of application must be dismissed. The Court holds that there has been a violation of Article 6 § 1 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "128. Under Article 5 § 1 of the Convention the applicant complained that her involuntary admission to the Kėdainiai Home had been unlawful. Article 5, in so far as relevant, provides:", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(e) the lawful detention of persons ... of unsound mind...”", "A. Submissions by the parties", "1. The applicant", "129. The applicant maintained her claims. She alleged that her involuntary admission to the Kėdainiai Home after 2 August 2004 had amounted to a “deprivation of liberty” within the meaning of Article 5 § 1 of the Convention.", "130. With regard to the objective element of her complaint, the applicant argued that her liberty had been restricted on account of her complete confinement and the extreme degree of control over her daily life. The applicant, like other residents, had not been able to leave the grounds of the Kėdainiai Home. If a resident left without permission, the director was bound to inform the police immediately. The applicant had tried to abscond twice, in 2006 and 2007, only to be brought back by the police. Furthermore, the applicant had been entirely under the control of staff at the institution, who had been able to medicate her by force or coercion, place her in isolation or tie her down, as exemplified by the incident of 25 January 2005. According to the findings of the Prosecutor’s Office, on that day the applicant had been tied down to a bed in the isolation room and forcibly medicated, in contravention of the internal rules of the institution. It would be plain upon visiting the Kėdainiai Home that the vast majority of residents are heavily medicated.", "131. Further, the applicant complained that all aspects of her life are controlled by the staff. Although in theory she is allowed to receive visits from people outside the institution, this right is subject to approval from the director. Upon her admission to the Kėdainiai Home in 2004, all visits other than those from her guardian had been restricted for a lengthy period of time.", "The applicant submitted that she cannot decide whether or when to stay in bed, there is a limited range of activities for her to take part in, she is not free to make routine choices like other adults – for example, about her diet, daily activities and social contacts. She is subject to constant supervision.", "132. With respect to the subjective element of her complaint, the applicant noted that her case was diametrically opposite to that of H.M. v. Switzerland (no. 39187/98, § 47, ECHR 2002-II), where the applicant had agreed to her admission to a nursing home. In the present case, the applicant’s views had not been sought, either at the time of her admission or during her continued involuntary placement in the Kėdainiai Home. However, under Lithuanian law it had, in fact, been irrelevant whether she had consented or not to her detention, because an individual lacking legal capacity and placed under guardianship becomes a non-entity under the law and loses the capacity to take any decisions. Even so, whilst she had been incapable de jure, she had still, in fact, been capable of expressing her consent. She had expressed strong objections about her continued involuntary admission to the institution, most emphatically by running away twice, in her arguments before the domestic court, in her correspondence with various State authorities and, finally, by submitting a complaint to the Court.", "133. In sum, the applicant’s involuntary admission to and continued residence in the Kėdainiai Home after 2 August 2004 constituted a “deprivation of liberty” within the meaning of Article 5 § 1 of the Convention.", "134. Lastly, the applicant submitted that her admission to the Kėdainiai institution was not lawful. The authorities involved in placing her in a psychiatric institution or those supervising the guardian’s activities failed to consider whether other less restrictive community-based arrangements would have been more suitable to address the applicant’s mental health problems. Instead they simply acquiesced in the guardian’s request to have the applicant placed in an institution. Most importantly, the applicant was excluded from this decision-making process altogether. Consequently, the applicant saw her detention as arbitrary, in contradiction with Article 5 § 1 (e) of the Convention.", "2. The Government", "135. The Government argued, first, that Article 5 of the Convention was not applicable to the instant case. They submitted that the Kėdainiai Home was an institution for providing social services and not forced treatment under a regime corresponding to that of a psychiatric institution. Whilst admitting that certain medical services continued to be provided in the Kėdainiai Home, the institution at issue was not primarily used for the purposes of hospitalisation or medical treatment. Having regard to the fact that the Kėdainiai Home had to take care of adults suffering from mental health problems, it followed that the limited restrictions on the applicant had corresponded to the nature of the facility and had been no more than normal requirements ( Nielsen v. Denmark, 28 November 1988, § 72, Series A no. 144).", "136. Turning to the particular situation of the applicant, the Government submitted that until September 2007 the applicant had lived in a part of the Kėdainiai Home called “Apytalaukis”, which had been an open facility. Although its grounds had been fenced, the gates had not been locked and residents had been able to leave the territory as they wished. The doors of the building had stayed unlocked. The same conditions had remained after the applicant’s resettlement, except that the grounds had not even been fenced. According to the personnel of the Kėdainiai Home, the applicant had not always adhered to the internal rules of the institution and had failed to inform the staff before leaving the grounds and going for a walk. Even so, this had neither been considered as absconding, nor had the applicant been sanctioned in any way. Also, similarly to the facts in H.M. v. Switzerland (cited above), and with the exception of the incident of 25 January 2005, the applicant had never been placed in a secure ward. Moreover, she had been free to maintain personal contacts, to write and receive letters, to practise her religion and to make phone calls.", "137. As to the medical treatment the applicant had received in the Kėdainiai Home, the Government submitted that, except for the incident of 25 January 2005, she had not been forcefully medicated. Each time she had been required to take medicine a psychiatrist had talked to her and had explained the need for treatment. There had been periods when the applicant had refused to take medicine; those periods had always been followed by the deterioration of her mental health. However, after some time the applicant had usually accepted the doctors’ arguments and had agreed to continue treatment. The social and medical care she had received in the Kėdainiai Home had had a positive effect on the applicant, because her mental state had stabilised. Since her admission to the Kėdainiai Home she had never been hospitalised, whereas prior to that she had used to be hospitalised at least once a year.", "In sum, the limited restrictions to which the applicant had been subjected in the Kėdainiai Home had all been necessary due to the severity of her mental illness, had been in her interests and had been no more than the normal requirements associated with the responsibilities of a social care institution taking care of inhabitants suffering from mental health problems.", "138. The Government also noted that the admission of the applicant to the Kėdainiai Home had stemmed from her guardian’s decision and not from a decision of the State or the municipal authorities. The applicant’s adoptive father, as her guardian, had been empowered to act on her behalf and with the aim of exercising and protecting her rights and interests. In addition, the involvement of the municipal and State authorities in examining the applicant’s situation and state of mind had played an important role in verifying the best interests of the applicant and had provided necessary safeguards against any arbitrariness in the guardian’s decisions.", "139. Turning to the subjective element of the applicant’s case, the Government submitted that the applicant was legally incapacitated and had thus lacked the decision-making capacity to consent or object to her admission. Her guardian and not the authorities had been able to decide on her place of residence.", "140. In the light of the above considerations, the Government argued that this part of the application was incompatible ratione materiae with Article 5 § 1 of the Convention.", "141. Alternatively, should the Court find that Article 5 § 1 was applicable to the applicant’s complaints, the Government contended that they were not founded. The applicant’s admission to the Kėdainiai Home had been lawful, given that it had been carried out in accordance with the procedure established by domestic law. Under the law, a person can be admitted to an institution at the request of the guardian, provided that the person is suffering from a mental disorder. The applicant was admitted to the hospital at the request of her official guardian in relation to a worsening of her mental condition. Furthermore, in the view of the Government, the involvement of the authorities in the procedure for the applicant’s admission had provided safeguards against any possible abuses.", "142. In the further alternative, the Government submitted that even if the restrictions on the applicant’s movement could be considered as falling within Article 2 of Protocol No. 4 to the Convention, those restrictions had been lawful and necessary.", "B. The Court’s assessment", "1. Admissibility", "143. The Government argued that the conditions in which the applicant is institutionalised in the Kėdainiai Home are not so restrictive as to fall within the meaning of “deprivation of liberty” as established by Article 5 of the Convention. However, the Court cannot subscribe to this thesis.", "144. It reiterates that in order to determine whether there has been a deprivation of liberty, the starting point must be the concrete situation of the individual concerned. Account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question (see Guzzardi v. Italy, 6 November 1980, § 92, Series A no. 39; and Ashingdane v. the United Kingdom, 28 May 1985, § 41, Series A no. 93).", "145. The Court further recalls that the notion of deprivation of liberty within the meaning of Article 5 § 1 does not only comprise the objective element of a person’s confinement in a particular restricted space for a not negligible length of time. A person can only be considered to have been deprived of his liberty if, as an additional subjective element, he has not validly consented to the confinement in question (see, mutatis mutandis, H.M. v. Switzerland, cited above, § 46).", "146. In the instant case the Court observes that the applicant’s factual situation in the Kėdainiai Home is disputed. Be that as it may, the fact whether she is physically locked in the Kėdainiai facility is not determinative of the issue. In this regard, the Court notes its case-law to the effect that a person could be considered to have been “detained” for the purposes of Article 5 § 1 even during a period when he or she was in an open ward with regular unescorted access to unsecured hospital grounds and the possibility of unescorted leave outside the hospital (see H.L. v. the United Kingdom, no. 45508/99, § 92, ECHR 2004-IX). As concerns the circumstances of the present case, the Court considers that the key factor in determining whether Article 5 § 1 applies to the applicant’s situation is that the Kėdainiai Home’s management has exercised complete and effective control by medication and supervision over her assessment, treatment, care, residence and movement from 2 August 2004, when she was admitted to that institution, to this day (ibid., § 91). As transpires from the rules of the Kėdainiai Home, a patient therein is not free to leave the institution without the management’s permission. In particular, and as the Government have themselves admitted in their observations on the admissibility and merits, on at least one occasion the applicant left the institution without informing its management, only to be brought back by the police (see paragraph 29 above). Moreover, the director of the Kėdainiai Home has full control over whom the applicant may see and from whom she may receive telephone calls (see paragraph 81 above). Accordingly, the specific situation in the present case is that the applicant is under continuous supervision and control and is not free to leave (see Storck v. Germany, no. 61603/00, § 73, ECHR 2005-V). Any suggestion to the contrary would be stretching credulity to breaking point.", "147. Considerable reliance was placed by the Government on the Court’s judgment in H. M. (cited above), in which it was held that the placing of an elderly applicant in a foster home in order to ensure necessary medical care as well as satisfactory living conditions and hygiene did not amount to a deprivation of liberty within the meaning of Article 5 of the Convention. However, each case has to be decided on its own particular “range of factors” and, while there may be similarities between the present case and H.M., there are also distinguishing features. In particular, it was not established that H.M. was legally incapable of expressing a view on her position. She had often stated that she was willing to enter the nursing home and, within weeks of being there, she had agreed to stay, in plain contrast to the applicant in the instant case. Further, a number of safeguards – including judicial scrutiny – were in place in order to ensure that the placement in the nursing home was justified under domestic and international law. This led to the conclusion that the facts in H.M. were not of a “degree” or “intensity” sufficiently serious to justify a finding that H.M. was detained (see Guzzardi, cited above, § 93). By contrast, in the present case the applicant was admitted to the institution upon the request of her guardian without any involvement of the courts.", "148. As to the facts in Nielsen, the other case relied on by the Government, the applicant in that case was a child, hospitalised for a strictly limited period of time of only five and a half months, on his mother’s request and for therapeutic purposes. The applicant in the present case is a functional adult who has already spent more than seven years in the Kėdainiai Home, with negligible prospects of leaving it. Furthermore, in contrast to this case, the therapy in Nielsen consisted of regular talks and environmental therapy and did not involve medication. Lastly, as the Court found in Nielsen, the assistance rendered by the authorities when deciding to hospitalise the applicant was “of a limited and subsidiary nature” (§ 63), whereas in the instant case the authorities contributed substantially to the applicant’s admission to and continued residence in the Kėdainiai Home.", "149. Assessing further, the Court draws attention to the incident of 25 January 2005, when the applicant was restrained by the Kėdainiai Home staff. Although the applicant was placed in a secure ward, given drugs and tied down for a period of only fifteen to thirty minutes, the Court notes the particularly serious nature of the measure of restraint and observes that where the facts indicate a deprivation of liberty within the meaning of Article 5 § 1, the relatively short duration of the detention does not affect this conclusion (see X v. Germany, no. 8819/79, Commission decision of 19 March 1981, DR 24, pp. 158, 161; and Novotka v. Slovakia (dec.), no. 47244/99, 4 November 2003).", "150. The Court next turns to the “subjective” element, which was also disputed between the parties. The Government argued that the applicant lacked de jure legal capacity to decide matters for herself. However, this does not necessarily mean that the applicant was de facto unable to understand her situation (see Shtukaturov v. Russia, no. 44009/05, § 108, ECHR 2008). Whilst accepting that in certain circumstances, due to severity of his or her incapacity, an individual may be wholly incapable of expressing consent or objection to being confined in an institution for the mentally handicapped or other secure environment, the Court finds that that was not the applicant’s case. As transpires from the documents presented to the Court, the applicant subjectively perceived her compulsory admission to the Kėdainiai Home as a deprivation of liberty. Contrary to what the Government suggested, she has never regarded her admission to the facility as consensual and has unequivocally objected to it throughout the entire duration of her stay in the institution. On a number of occasions the applicant requested her discharge from the Kėdainiai Home by submitting numerous pleas to State authorities and, once she was given the only possibility to address a judicial institution, to the Kaunas City District Court (see paragraphs 34 and 37 above). She even twice attempted to escape from the Kėdainiai facility (see, a fortiori, Storck, cited above, § 73). In sum, even though the applicant had been deprived of her legal capacity, she was still able to express an opinion on her situation, and in the present circumstances the Court finds that the applicant had never agreed to her continued residence at the Kėdainiai Home.", "151. Lastly, the Court notes that although the applicant’s admission was requested by the applicant’s guardian, a private individual, it was implemented by a State-run institution – the Kėdainiai Home. Therefore, the responsibility of the authorities for the situation complained of was engaged (see Shtukaturov, cited above, § 110).", "152. In the light of the foregoing the Court concludes that the applicant was “deprived of her liberty” within the meaning of Article 5 § 1 of the Convention from 2 August 2004 and remains so to this day.", "153. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits", "154. The Government argued that the applicant had been admitted to the Kėdainiai Home lawfully. The Court accepts that the applicant’s involuntary admission was “lawful”, if this term is construed narrowly, in the sense of the formal compatibility of the applicant’s involuntary admission with the procedural and material requirements of domestic law (see paragraph 79 above). It appears that the only condition necessary for the applicant’s admission was the consent of her official guardian, her adoptive father, who was also the person who had initially sought the applicant’s admission to the Kėdainiai Home.", "155. However, the Court reiterates that the notion of “lawfulness” in the context of Article 5 § 1 (e) has also a broader meaning. The notion underlying the term “procedure prescribed by law” is one of fair and proper procedure, namely that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary (see Winterwerp, cited above, § 45).", "156. The Court also recalls that in Winterwerp (paragraph 39) it set out three minimum conditions which have to be satisfied in order for there to be “the lawful detention of a person of unsound mind” within the meaning of Article 5 § 1 (e): except in emergency cases, the individual concerned must be reliably shown to be of unsound mind, that is to say, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder.", "157. Turning to the present case, the Court notes that just a few weeks before her placement in the Kėdainiai Home on 2 August 2004, the applicant had been admitted to and examined at the Kaunas Psychiatric Hospital (see, by converse implication, Stanev, cited above, § 156). A medical panel of that hospital concluded that at that time the applicant suffered from “continuous paranoid schizophrenia”. The doctors’ commission deemed it appropriate for the applicant to live in a “social care institution for the mentally handicapped”. The Court further observes that soon thereafter a social worker concluded that the applicant was not able to live on her own, as she could not take care of herself, did not understand the value of money, did not clean her apartment and wandered in the city hungry. The Court also notes the social worker’s testimony as to the unpredictability of the applicant’s behaviour, given that sometimes she would get angry at people and shout at them without a reason (see paragraphs 22 and 23 above). That being so and recalling the fact that the applicant had a history of serious mental health problems since 1979, the Court is ready to find that the applicant has been reliably shown to have been suffering from a mental disorder of a kind and degree warranting compulsory confinement and the conditions as defined in Wintertwerp had thus been met in her case. Furthermore, the Court also considers that no other measures were available in the circumstances. As noted by the social worker, the applicant’s adoptive father, who was her legal guardian, could not “manage” her (see paragraph 23 above). On this point the Court also takes notice of the fact that even being removed from institutional care and taken to her adoptive father’s apartment, the applicant escaped and was found by the police only three months later (see paragraph 29 above). In these circumstances the Court concludes that the applicant’s compulsory confinement was necessary (see Stanev, cited above, § 143) and no alternative measures had been appropriate in the circumstances of the case. The Court lastly observes, and it has not been disputed by the applicant, that in situations such as hers the domestic law did not provide that placement in a social care institution would be decided by a court (see, by converse implication, Gorobet v. Moldova, no. 30951/10, § 40, 11 October 2011).", "158. In the light of the above, the Court cannot but conclude that the applicant’s confinement to the Kėdainiai Home on 2 August 2004 was “lawful” within the meaning of Article 5 § 1 (e) of the Convention. Accordingly, there has been no violation of Article 5 § 1.", "IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION", "159. The applicant complained that she is unable to obtain her release from the Kėdainiai Home. Article 5 § 4, relied on by the applicant, provides as follows:", "“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”", "A. Submissions by the parties", "160. The applicant submitted that she had been admitted to the Kėdainiai Home upon her guardian’s request and with the authorisation of an administrative panel. The lawfulness of her involuntary hospitalisation had not been reviewed by a court, either upon her admission or at any other subsequent time. Being deprived of her legal capacity, the applicant submitted that she is prevented from independently pursuing any judicial legal remedy to challenge her continued involuntary hospitalisation. In relation to the possibility supposedly at the applicant’s disposal of asking for a prosecutorial inquiry, this remedy could not be regarded per se as judicial review satisfying the requirements of Article 5 § 4. As for the possibilities identified by the Government, namely to ask social services or a prosecutor to initiate a review of the applicant’s medical condition, these procedures were discretionary. In any event, the applicant had filed a number of complaints with the prosecutor’s office and other authorities, which had unanimously concluded that her hospitalisation in the Kėdainiai Home had been carried out in accordance with the domestic law, thus being disinclined to take any action to override the will of her adoptive father, acting as her legal guardian. Once the Kėdainiai Home had become her guardian, it had been clear that that facility clearly had an interest in stifling any of the applicant’s complaints and in keeping her in the institution. The applicant therefore submitted that her rights under Article 5 § 4 of the Convention had been breached.", "161. The Government maintained that the applicant had had an effective remedy to challenge her hospitalisation at the Kėdainiai facility. Thus, she had been able to apply for release or complain about the actions of the medical staff through her guardians, who had represented her in dealings with third parties, including the courts. Further, the applicant had been able to ask the social services authorities or a prosecutor to initiate a review of her situation. For the Government, the applicant’s complaint was unfounded.", "B. The Court’s assessment", "1. Admissibility", "162. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits", "163. Among the principles emerging from the Court’s case-law on Article 5 § 4 concerning “persons of unsound mind” are the following:", "(a) a person of unsound mind who is compulsorily confined in a psychiatric institution for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings “at reasonable intervals” before a court to put in issue the “lawfulness” – within the meaning of the Convention – of his detention;", "(b) Article 5 § 4 requires that the procedure followed have a judicial character and give to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question; in order to determine whether a proceeding provides adequate guarantees, regard must be had to the particular nature of the circumstances in which such proceeding takes place;", "(c) the judicial proceedings referred to in Article 5 § 4 need not always be attended by the same guarantees as those required under Article 6 § 1 for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation. Special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves (see Megyeri v. Germany, 12 May 1992, § 22, Series A no. 237-A; also see Stanev, cited above, § 171).", "164. This is so in cases where the original detention was initially authorised by a judicial authority (see X v. the United Kingdom, 5 November 1981, § 52, Series A no. 46), and it is all the more true in the circumstances of the present case, where the applicant’s placement in the Kėdainiai Home was initiated by a private individual, namely the applicant’s guardian, and decided upon by the municipal and social care authorities without any involvement on the part of the courts.", "165. The Court accepts that the forms of judicial review may vary from one domain to another and may depend on the type of the deprivation of liberty at issue. It is not within the province of the Court to inquire into what would be the best or most appropriate system of judicial review in this sphere. However, in the present case the courts were not involved in deciding on the applicant’s placement in the Kėdainiai Home at any moment or in any form. It appears that, in situations such as the applicant’s, Lithuanian law does not provide for automatic judicial review of the lawfulness of admitting a person to and keeping him in an institution like the Kėdainiai Home. In addition, a review cannot be initiated by the person concerned if that person has been deprived of his legal capacity. In sum, the applicant was prevented from independently pursuing any legal remedy of a judicial character to challenge her continued involuntary institutionalisation.", "166. The Government claimed that the applicant could have initiated legal proceedings through her guardians. However, that remedy was not directly accessible to her: the applicant fully depended on her legal guardian, her adoptive father, who had requested her placement in the Kėdainiai Home in the first place. The Court also observes that the applicant’s current legal guardian is the Kėdainiai Home – the same social care institution which is responsible for her treatment and, furthermore, the same institution which the applicant had complained against on many occasions, including in court proceedings. In this context the Court considers that where a person capable of expressing a view, despite having been deprived of legal capacity, is deprived of his liberty at the request of his guardian, he must be accorded an opportunity of contesting that confinement before a court, with separate legal representation. Lastly, as to the prospect of an inquiry carried out by the prosecuting authorities, the Court shares the applicant’s observation that a prosecutorial inquiry cannot as such be regarded as judicial review satisfying the requirements of Article 5 § 4 of the Convention (see Shtukaturov, cited above, § 124).", "167. In the light of the above, the Court dismisses the Government’s preliminary objection of abuse of application and holds that there has also been a violation of Article 5 § 4 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION", "168. Relying on Articles 3 and 8 of the Convention, the applicant complained of having been physically restrained on 25 January 2005, when she had been tied to a bed in an isolation room, and of the overall standard of medical treatment in the Kėdainiai Home. She also argued that she had been given poor quality food.", "The Court considers that in the particular circumstances of the present case these complaints fall to be examined under Article 3 of the Convention, which reads, in so far as relevant as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. The parties’ submissions", "169. The applicant submitted that she had been forced to take medication provided by the Kėdainiai Home with little or no information about its use. On occasions she had refused medication, but had generally acquiesced to its administration because of persistent pressure from the staff. The incident of 25 January 2005 had exemplified that pressure at its worst, though the coercion is generally less dramatic and persistent.", "170. The applicant also complained that at the Kėdainiai institution she had been given out-of-date products to eat.", "171. The Government argued that the measures used in respect of the applicant had been therapeutic and necessary. Turning to the events of 25 January 2005, they submitted that the social workers had decided on their own to tie down the applicant as they had been afraid for her life. Although the exact length of time that the applicant had been tied up for was not clear, it could have lasted for only fifteen to thirty minutes and had not continued any longer than necessary. During the incident the applicant had been forcibly injected with 10 mg of Haloperidol, whilst the average therapeutic dosage of the said medication is 12 mg. Haloperidol is a common antipsychotic medicament prescribed for individuals suffering from schizophrenia in order to eliminate the symptoms of psychosis. According to the generally accepted principles of psychiatry, medical necessity had fully justified the treatment in issue. The Government also drew the Court’s attention to the prosecutor’s decision of 31 July 2006 to discontinue the pre-trial investigation in connection with the applicant’s forced restraint. They also noted the absence of any other similar incidents at the Kėdainiai Home in respect of the applicant. The Government summed up that even if the treatment of the applicant on 25 January 2005 had had unpleasant effects, it had not reached the minimum level of severity required under Article 3 of the Convention.", "172. As to the applicant’s complaint that she had been provided poor quality food, the Government submitted that although the authorities had found out-of-date meat in the Kėdainiai Home, the meat had been frozen and had never been used for cooking. A follow-up report of 20 February 2006 did not contain any evidence that the applicant had complained of failure to provide any medical assistance to her in respect of alleged food poisoning. For the Government, the applicant’s accusations towards the care institution were unsubstantiated and hence manifestly ill-founded.", "B. The Court’s assessment", "173. Referring to its settled case-law the Court reiterates that the position of inferiority and powerlessness which is typical of patients admitted on an involuntary basis to psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with. While it is for the medical authorities to decide, on the basis of the recognised rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are therefore responsible, such patients nevertheless remain under the protection of Article 3, whose requirements permit of derogation.", "The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist (see Herczegfalvy v. Austria, 24 September 1992, § 82, Series A no. 244).", "174. In this case it is above all the applicant’s restraint on 25 January 2005 which appears worrying. However, the evidence before the Court is not sufficient to disprove the Government’s suggestion that, according to the psychiatric principles generally accepted at the time, medical necessity justified the treatment in issue. Moreover, the applicant’s allegations that the use of restraint measures had been unlawful were dismissed by the prosecutors and the Court sees no valid reason to dispute their findings (see paragraphs 54-58 above). The Court also notes the Government’s affirmation that there were no more similar incidents in the Kėdainiai Home in which physical restraint and supplementary medication had been used in respect of the applicant.", "175. Turning to the applicant’s submission of allegedly poor quality food and food poisoning, the Court notes with concern that out-of-date meat was found at the Kėdainiai Home (see paragraph 63 above). However, that fact alone is not sufficient to substantiate the applicant’s accusations of inhuman or degrading treatment, as directed towards the Kėdainiai institution, to such an extent that an issue under Article 3 of the Convention would arise.", "176. The Court accordingly finds that the above complaints must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "A. Censorship of correspondence", "177. The applicant alleged that the Kėdainiai Home had censored her correspondence, in breach of Article 8 of the Convention, which reads insofar as relevant as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "1. The parties’ submissions", "178. The applicant argued that her correspondence, including that with the Court, and her telephone conversations, as illustrated by the incident of 18 January 2005, had been censored by the Kėdainiai Home. She also submitted that she had been denied books and newspapers.", "179. The Government disputed the applicant’s submissions and argued that the residents of the Kėdainiai Home were guaranteed the right to receive periodicals and personal correspondence. There were no requirements that the residents should send or receive their correspondence through the personnel of the facility.", "180. As to the particular situation of the applicant, the Government underlined that there had been neither stopping nor censorship of any of her communications, such as telephone conversations or letters, including those with the Court. Such allegations were totally unsubstantiated and there was no proof that any acts of interception of communications had occurred. As regards the only specified incident involving the telephone call from Ms M. Buržinskienė on 18 January 2005, which the applicant had not been invited to answer, the Government noted that in the context of a more intensified deterioration of the applicant’s health, the Kėdainiai Home personnel might have decided not to have the applicant temporarily disturbed. Nonetheless, since 2005 the applicant had possessed several of her own mobile phones and had used them at her own convenience and without hindrance. Furthermore, the applicant had not indicated either the addressees of her supposedly intercepted correspondence, or, at least, the approximate dates of such letters. Lastly, the Government submitted that the Kėdainiai Home had a room with newspapers, periodicals and books, to which all the residents, including the applicant, had unrestricted access.", "Relying on the above considerations, the Government argued that the applicant’s complaint was manifestly ill-founded.", "2. The Court’s assessment", "181. The Court recalls its case-law to the effect that telephone calls made from business premises, as well as from the home, may be covered by the notions of “private life” and “correspondence” within the meaning of Article 8 § 1 (see Halford v. the United Kingdom, 25 June 1997, § 44, Reports of Judgments and Decisions 1997-III). Turning to the applicant’s situation, it observes that on 18 January 2005 the applicant was indeed prevented from receiving a telephone call from Ms Buržinskienė. However, taking into account the applicant’s medical diagnosis and the explanations provided by the Government, the Court is not ready to hold that on that occasion the applicant’s rights under Article 8 were limited more than was strictly necessary. The Court also notes that this part of the complaint has been raised out of time, as required by Article 35 § 1 of the Convention.", "182. Furthermore, having examined the materials submitted by the parties, the Court finds the applicant’s other complaints in this part of the application not sufficiently substantiated and therefore rejects them as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "B. Visits", "1. The parties’ submissions", "183. The applicant further argued that her ability to build and sustain relationships had also been limited due to restrictions placed on her capacity to receive visitors and telephone calls. The applicant has had very little contact with members of the community outside the facility. Outsiders’ visits are generally limited and most visitors may not be received in private. The director of the Kėdainiai Home had in the past restricted visits from outsiders after the applicant’s institutionalisation, upon a request from her guardian. The list of visitors maintained by the Kėdainiai Home showed that between 2 August 2004 and 25 December 2006 only the applicant’s adoptive father had visited her, with few exceptions. Before the applicant got her own mobile phone, she had had to use the facilities provided by the institution. At that time, she had only been able to receive calls through the Kėdainiai Home’s switchboard. She relied upon the right to respect for private and family life under the above-cited Article 8 of the Convention.", "184. The Government pointed out that the applicant, as with the other residents of the Kėdainiai Home, was entitled to unrestricted visits by her relatives and her court-appointed guardians. As to other visitors, such individuals could visit residents upon having obtained the management’s permission, which was required in order to protect the interests and the safety of the residents of the institution.", "185. The Government submitted that the applicant’s adoptive father, as her guardian, had requested that the Kėdainiai Home prevent D.G.’s negative influence over the applicant and restrict her visits in order to avoid the applicant’s destabilisation. Only once on 18 August 2004, in accordance with that request and also having the oral consent of the in-house psychiatrist, had D.G.’s permission to visit been denied. In that connection, the Government also referred to a doctor’s report concerning the negative influence of D.G. over the applicant. Relying on the record of visitors to the Kėdainiai Home, the Government asserted that, contrary to what had been said by the applicant, she had received visitors. In contrast to what had been suggested by the applicant, it had not been her relatives, but rather her friends who had most often visited her.", "186. In the light of the above, the Government submitted that the applicant’s complaint was manifestly ill-founded.", "2. The Court’s assessment", "187. The Court reiterates that Article 8 of the Convention is intended to protect individuals from arbitrary interference by the State in their private and family life, home and correspondence. The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of “private life”. However, it would be too restrictive to limit the notion to an “inner circle” in which the individual may live his own personal life as he chooses and to entirely exclude therefrom the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251-B).", "188. Turning to the applicant’s case, the Court notes that, except for one occasion on which D.G. was not allowed to see her on 18 August 2004, the applicant has not substantiated her pleas of social isolation and restrictions on having people visit her. Even assuming that these matters have been raised in time, the Court is not ready to disagree with the Government’s suggestion that that single restriction was aimed at the protection of the applicant’s mental health and was thus in compliance with the requirements of Article 8 of the Convention.", "189. The applicant complained that by her admission to the Kėdainiai Home she had been segregated from society and cut off from social networks. Whilst acknowledging that because of her involuntary stay in the institution the applicant indeed could have faced certain restrictions in contacting others, the Court nonetheless observes that between 2 August 2004 and 25 December 2006 the applicant received one or more visitors on forty-two separate occasions. Of those visits, her friends, relatives and D.G. saw the applicant thirty-eight times (see paragraph 31 above). Lastly, the applicant had herself admitted that at one point she had got a mobile phone, which helped her to maintain contact with the outside world.", "190. In the light of the foregoing, the Court considers that this part of the applicant’s complaint is manifestly ill-founded within the meaning of Article 35 § 3 and therefore inadmissible in accordance with Article 35 § 4 of the Convention.", "VII. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION", "191. The applicant complained that she had been prevented from practising her religion whilst resident in the Kėdainiai Home, in breach of Article 9 of the Convention.", "192. The Government submitted that the applicant’s complaint was purely abstract in nature. It was not indicated in the applicant’s complaint when in particular she had been barred or impeded from practising her religion. Pursuant to the Bylaws of the Kėdainiai facility, the residents thereof had the right to practise their chosen religion and to attend a place of worship.", "193. The Court has examined the above complaint as submitted by the applicant. However, having regard to all the material in its possession, it finds the complaint wholly unsubstantiated and therefore rejects it as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "VIII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "194. Relying upon Article 13 of the Convention, the applicant also complained that she had had no effective domestic remedies at her disposal to seek redress for the alleged violations of which she had complained to the Court. Article 13 of the Convention provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The parties’ submissions", "1. The applicant", "195. The applicant submitted at the outset that she is a very vulnerable individual. She is legally incapacitated with a history of mental health problems and has been admitted to a psychiatric institution against her will for an indeterminate period. The applicant’s guardian, who has the power to take decisions on all her aspects of life, is the care institution itself. In the applicant’s view, on account of her vulnerability, Article 13 of the Convention required that the State take supplementary measures to make sure that she could have benefited from effective remedies for the violations of her rights.", "196. The applicant pointed out that she does not have independent standing to initiate any civil proceedings. Only once had she been successful in initiating court proceedings, namely those before the Kaunas District Court in 2005 concerning the change of guardianship. However, even then it had been not possible to pursue that remedy in full, given that the Kaunas District Court had decided to refuse the applicant’s request for legal assistance on the grounds that she had been represented by her legal guardian, who already had a lawyer.", "197. The applicant further submitted that neither could she exercise her right to an effective domestic remedy through other persons. As concerns her guardian, who was her legal representative in accordance with the law, this remedy had been purely discretionary. More importantly, it was difficult to conceive how this remedy could have worked with regard to complaints challenging decisions taken by the guardian him, her or itself on the applicant’s behalf, such as the decision to hospitalise the applicant in the institution, or the decision by the Kėdainiai Home to restrict visitors’ access to the applicant.", "198. The applicant also argued that she could not effectively act through the Social Services Department or the public prosecutor either. As concerns the first body, she emphasised the purely discretionary powers of the social services department and doubted the impartiality of an institution which had to a large degree been responsible for the appointment of her guardians and for her hospitalisation in the institution. As concerns the prosecutor, in the applicant’s view, his decisions were not binding and, as practice had showed, the prosecutor had invariably rejected the applicant’s complaints, mostly deferring to the decisions taken by the guardians or the social service authorities.", "199. Lastly, the applicant submitted that decisions to remove incapacitation, although theoretically possible, were exceptional. Most importantly, the ability to bring an action to restore legal capacity did not belong to incapacitated persons themselves, but rather to their guardian. For most people, incapacitation is for life.", "2. The Government", "200. The Government contested the applicant’s arguments. Whilst acknowledging that the applicant had no independent standing in the domestic proceedings, the Government contended that she had been able to effectively act through her guardian, who had been her legal representative. They also pointed to the Kaunas City District Court’s decision of 7 November 2007 to accept the applicant’s application for change of her guardian for examination. For the Government, it could be presumed that the district court had reviewed the applicant’s request to reopen the proceedings with a high degree of care because of the essence of the applicant’s request – appointment of a guardian. Even though the court had refused the applicant’s request to have separate legal assistance, that refusal had been based on domestic law, pursuant to which a guardian is the legal representative of an incapacitated person. Furthermore, the actions of the applicant’s guardian had been supervised by the social services authorities, thus protecting the interests of the applicant.", "201. The Government next argued that the protection of the rights and interests of the applicant fell within the notion of public interest. Thus the applicant had been able to apply to the prosecutor, who, in turn, had been entitled to file a civil claim or an administrative complaint. In this context the Government referred to the decisions of 3 September 2004 and 31 July 2006, by which the prosecutors had discontinued the official investigation into the complaints about alleged deprivation of liberty of the applicant. However, having considered the complaints to be unfounded, the prosecutors saw no reason to apply to the domestic courts in order to protect the public interest.", "202. As to an effective remedy for the applicant to complain of the alleged violations of Articles 8 and 9 of the Convention regarding her living conditions, the Government contended that, pursuant to the Law on Social Services, the applicant could have complained to social care officials, and, in the event that they dismissed her complaint, to the courts. Various complaints made by the applicant regarding her allegedly inadequate living conditions and ill-treatment in the Kėdainiai Home had been investigated by a number of municipal officials and interdepartmental panels, which had found no violations of the applicant’s rights. Moreover, neither a prosecutor nor the applicant’s guardian had ever applied to the courts with a claim for damages for any alleged violations of the applicant’s rights.", "In sum, the applicant had had domestic remedies which were effective, available in theory and in practice, and capable of providing redress in respect of the applicant’s complaints and which had offered reasonable prospects of success.", "203. Lastly, the Government submitted that declaration of the recovery of a person’s legal capacity upon the amelioration of his or her mental health was quite common practice in Lithuania. Such requests could be submitted by a social care institution, acting as a guardian, on its own motion. Moreover, a request to annul an incapacitation decision could also be lodged by a prosecutor in the public interest. Nonetheless, as regards the applicant, the circumstances warranting her incapacitation have never disappeared as no amelioration of her mental state has ever been established that would give her guardian, be it her adoptive father or the Kėdainiai Home, or the prosecutor grounds to apply to a court for the reinstatement of her legal capacity.", "B. The Court’s assessment", "204. The Court finds that this complaint is linked to the complaints submitted under Articles 5 and 6 of the Convention, and it should therefore be declared admissible.", "205. The Court recalls its case-law to the effect that Article 5 § 4 provides a lex specialis in relation to the more general requirements of Article 13 (see Chahal v. the United Kingdom, 15 November 1996, § 126, Reports of Judgments and Decisions 1996-V). It also reiterates that the requirements of Article 13 are less strict than, and are here absorbed by, those of Article 6 (see, among many authorities, Kamasinski v. Austria, 19 December 1989, § 110, Series A no. 168). The Court further notes that, in analysing the fairness of the civil proceedings concerning the applicant’s guardianship and the lawfulness of the applicant’s involuntary placement in the Kėdainiai Home, it has already taken account of the fact that the applicant is deprived of legal capacity and thus is not able to initiate any legal proceedings before the domestic courts. When analysing the above complaints, the Court has also noted that the other remedies suggested by the Government, be it a possibility to act through her guardians or a request by the applicant to complain to a prosecutor or her complaints to the social care authorities, have not been proved to be feasible in the applicant’s case. This being so, having regard to its conclusions under Articles 5 § 4 and 6 of the Convention, the Court does not consider it necessary to re-examine these aspects of the case separately through the prism of the “effective remedies” requirement of Article 13.", "IX. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "206. Relying upon Article 2 of the Convention, the applicant also complained that, due to overmedication, her life is at risk. Relying on Article 10 of the Convention, the applicant alleged that one of the reasons for her involuntary psychiatric hospitalisation had been her bold poetic expression. Finally, without citing any Article of the Convention or its Protocols, the applicant complained of a violation of her property rights by her State-appointed guardian.", "207. Having examined the materials submitted by the parties, the Court finds that the applicant has not provided sufficient evidence to substantiate her claims. It notes that, according to the Government, the applicant had received and had had access to newspapers and reading materials (see paragraph 180 above). It further observes that the applicant’s complaints as to alleged breach of her property rights were dismissed by the prosecutors (see paragraph 52 above). The Court therefore rejects this part of the application as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "208. Relying upon Article 3 of the Convention, the applicant complained of her involuntary hospitalisation and treatment in the Kaunas Psychiatric Hospital from 30 June 2004 to 2 August 2004. The Court notes, however, that the applicant submitted this complaint on 28 March 2006. Accordingly, this part of the application has not been lodged within six months of the final effective measure or decision, as required by Article 35 § 1 of the Convention. It must therefore be rejected pursuant to Article 35 § 4.", "X. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "209. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "210. The applicant claimed 300,000 euros (EUR) in respect of non ‑ pecuniary damage.", "211. The Government submitted that the above claim was wholly unsubstantiated.", "212. The Court notes that it has found a violation of Article 5 § 4 as well as a violation of Article 6 § 1 in the present case. As regards the non ‑ pecuniary damage already sustained, the Court finds that the violation of the Convention has indisputably caused the applicant substantial damage. In these circumstances, it considers that the applicant has experienced suffering and frustration, for which the mere finding of a violation cannot compensate. Making its assessment on an equitable basis, the Court awards the applicant EUR 8,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "213. The applicant claimed the sum of EUR 16,609.85 for costs and expenses before the Court, broken down as follows: EUR 62 for secretarial costs; EUR 3,500 in relation to legal fees for preparation of the submissions made by the applicant’s lawyer; and EUR 13,047.85 for fees for legal advice from Interrights.", "214. The Government submitted that the sum was excessive.", "215. The Court notes that the applicant was granted legal aid under the Court’s legal aid scheme, under which the sum of EUR 850 has been paid to the applicant’s lawyer to cover the submission of the applicant’s observations and additional expenses.", "216. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Ruling on an equitable basis and taking into account the sums already paid to the applicant by the Council of Europe in legal aid, the Court awards the applicant EUR 5,000.", "C. Default interest", "217. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1964 and lives in Linz. She was represented by Mr H. Graupner and Mr J. Ph. Bischof, lawyers practising in Vienna.", "3. The Government were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "The applicant’s arrest on 7 May 2016", "5. On the night of 7 May 2016, a taxi driver notified the police because his passenger, the applicant, said that she could not pay the fare as she did not have any cash with her and had forgotten the PIN number for her debit card. The police officers arriving at the scene explained the next steps to the applicant, namely that her personal details would be recorded and that she could pay the fare the next day, but failure to do so would result in a complaint being filed against her. The applicant then became agitated and started to shout at the police officers. As they could not calm her down, they told her that she was being arrested. The applicant attempted to resist arrest by repeatedly hitting the chest of one of the police officers with her hands. Although she applied a certain physical force, she did not injure the police officer. She was subsequently arrested and later examined by the medical officer ( Amtsarzt ) who indicated that she was fit to undergo detention and had the legal capacity to commit an offence ( Haft- und Deliktsfähigkeit ), but added that this could not be determined with absolute certainty. On the grounds that the applicant had psychotic episodes and was a danger to others when she had such a flare-up of aggression, the medical officer ordered the applicant’s committal to hospital ( Parere ). The arrest by the police was revoked after the public prosecutor ordered that charges be pressed against the applicant without an arrest being made.", "The applicant’s first placement from 7 May until 20 June 2016", "6. Still on the same day, 7 May 2016, the applicant was taken to the Neuromed Campus of the Kepler University Clinic. The placement proceedings ( Unterbringungsverfahren ) conducted there by the Linz District Court ( Bezirksgericht ) led to the applicant being placed in the high-security ward under the Act on the Placement of Mentally Ill Persons in Hospitals (Hospitalisation Act) ( Bundesgesetz über die Unterbringung psychisch Kranker in Krankenanstalten, Unterbringungsgesetz ). Dr M.F., a specialist in psychiatry and neurology, was commissioned to submit an expert opinion on the question whether the applicant met the requirements for a placement, as set out in section 3(1) and (2) of the above ‑ mentioned Act (see paragraph 35 below).", "7. In an expert opinion of 17 May 2016, Dr M.F. concluded that the requirements for such a placement were met. The applicant was known to have been suffering from a schizoaffective disorder for years, with the first known institutional inpatient stay dating back to 2006, although she denied any such incidents or any mental disorder. Elements of danger to third parties due to psychosis were present, with the applicant acting as if she was out of touch with reality, and showing an inclination towards aggressive reactions. Given the applicant’s lack of awareness of the fact that she was suffering from a disorder, and her lack of understanding of her need for treatment, Dr M.F. considered that a voluntary hospital stay was not an option.", "8. On 23 May 2016 the Linz District Court ordered the applicant’s placement until 20 June 2016, on which date the placement was terminated.", "The applicant’s second placement from 24 November 2016 until 23 January 2017", "9. On 24 November 2016 further placement proceedings were instituted against the applicant by the Linz District Court, after her neighbours had alerted the police as the applicant had, in her apartment, been ranting and raging, talking to herself, and having paranoid ideas and fantasies about killing. In a (second) expert opinion of 15 January 2017, Dr M.F. concluded that the applicant had been suffering from a mental disorder for many years, which now had to be classified as “paranoid schizophrenia”. As the applicant had recently agreed to taking medication, it was to be assumed that the requirements for a placement, specifically the elements of being a danger to others, would not continue beyond the date of the upcoming hearing. The applicant’s second placement lasted from 24 November 2016 until 23 January 2017, on which date that placement was terminated.", "Criminal proceedings against the applicant", "10. On 11 October 2016, that is, prior to the second placement proceedings (see paragraph 9 above), the Linz public prosecutor’s office ( Staatsanwaltschaft ) instigated preliminary proceedings against the applicant for the offences of attempted resistance to State authority ( Widerstand gegen die Staatsgewalt ), under Articles 15 and 269 of the Criminal Code (see paragraphs 27 and 31 below), and fraud ( Betrug ), under Article 146 of the Criminal Code (see paragraph 30 below), in connection with the incident of 7 May 2016 (see paragraph 5 above).", "11. Dr W.S., a specialist in neurology and psychiatry, was appointed as the psychiatric expert and was commissioned to submit his findings on whether the applicant had been criminally liable under Article 11 of the Criminal Code (see paragraph 26 below) at the time of the offence on 7 May 2016, and on whether the requirements for confinement in an institution for mentally ill offenders under Article 21 § 1 or Article 21 § 2 of the Criminal Code (see paragraph 28 below) were met, in particular how far offences with serious consequences, such as grievous bodily harm or death threats, would have to be expected in the future.", "12. In an expert opinion prepared on 16 November 2016 and formally submitted on 7 December 2016, which was based on the files alone, because he was not able to carry out a face ‑ to ‑ face examination as the applicant did not obey a summons to her examination shortly before her second placement began (see paragraph 9 above), Dr W.S. concluded that the applicant suffered from a schizoaffective disorder. Judging by her ability to control her actions ( Steuerungsfähigkeit ), she had, at the time of the offence, been closer to not being criminally liable than to being liable. However, her ability to act in accordance with an understanding of the wrongfulness of her actions ( Dispositionsfähigkeit ) had not been totally absent. The applicant had thus been criminally liable at the time of the offence. The offence she had been charged with (resisting the police) was not the result of any serious mental or emotional disorder ( seelisch-geistige Abartigkeit ). Dr W.S. concluded that he was not able to make any prognosis about any future offences with serious consequences.", "13. On 5 January 2017, that is during the applicant’s second placement (see paragraph 9 above), the Linz public prosecutor’s office charged the applicant with the offence of attempted resistance to State authority under Article 15 § 1 and Article 269 § 1 of the Criminal Code (see paragraphs 27 and 31 below).", "14. In a submission of 9 February 2017, the applicant’s defence lawyer lodged a request to be permitted to produce evidence by obtaining a psychiatric and neurological expert opinion aimed at proving that, at the time of the offence, the applicant had lacked capacity for criminal responsibility as defined in Article 11 of the Criminal Code (see paragraph 26 below). He argued that Dr W.S. had not personally examined the applicant, and objected to his expert opinion being used and the same expert being commissioned again. He reiterated that request during the trial hearing of 13 February 2017 before the Linz Regional Court ( Landesgericht ).", "15. The Regional Court acceded to the request and ordered another psychiatric expert opinion. In its reasoning, it held that the new expert opinion was commissioned because the opinion provided by Dr M.F. in the first placement proceedings (see paragraph 7 above) had stated that elements of being a danger to others owing to psychosis had been present; moreover, the applicant had had to undergo another inpatient stay in hospital (see paragraph 9 above) after Dr W.S. had prepared his expert opinion.", "16. On 1 April 2017, Dr A.K., a specialist in psychiatry and neurology and head of the Forensic Department of the Neuromed Campus of the University Clinic Linz and authorised to teach at university on the basis of a post ‑ doctoral lecturing qualification ( venia docendi ), submitted her twenty ‑ nine ‑ page long expert opinion based on her own examination of the applicant. She concluded that the applicant had already been suffering from a schizophrenic disorder in 2001. Given the multifaceted manifestation of her symptoms, the bizarre subjects of her delusions, her varied hallucinations, her total lack of motivation, her complete social withdrawal, her total loss of the capability to perform socially and of the ability to take care of herself, this had to be classified as undifferentiated schizophrenia. The applicant’s schizophrenic disorder was chronic, she had no awareness of suffering from a disorder and did not accept the necessary treatment. She had repeatedly and without authorisation stopped taking the prescribed medication in the past. At the time of the offence, the applicant had been overcome by her disorder to such an extent that she had no longer had any connection to reality, which is why she had no longer been able to assess the situation in a way that would conform to reality, or to make deliberate decisions or draw conclusions which were not influenced by her disorder. Dr A.K. concluded that, consequently, the applicant had not been criminally liable. With respect to acts of aggression in the future, she considered that the applicant had to be classified as high-risk, as a consequence of, among other things, her lack of awareness of suffering from a disorder, her negative attitude towards treatment, the vast range of existing active symptoms, her documented difficulty in controlling her impulses and the lack of success in treatment so far. This was likely to present a danger to neighbours, caregivers and police officers who could become random victims of serious attacks. Dr A.K. finally noted that the medical requirements for confinement under Article 21 § 1 of the Criminal Code (see paragraph 28 below) were met as mere outpatient treatment would not be sufficient at that time.", "Proceedings for the applicant’s detention as a preventive measure (confinement in an institution for mentally ill offenders)", "17. On 19 April 2017 the Linz public prosecutor’s office, on the basis of Dr A.K.’s expert opinion, replaced the criminal charges against the applicant (see paragraph 13 above) with a request for her detention as a preventive measure, that is her confinement in an institution for mentally ill offenders ( Einweisung in eine Anstalt für geistig abnorme Rechtsbrecher ) under Article 21 § 1 of the Criminal Code (see paragraph 28 below). The applicant was arrested on 8 May 2017 and, on the following day, was again taken to the Neuromed Campus of the Kepler University Clinic. The Linz Regional Court ordered her provisional detention ( vorläufige Anhaltung ) under Article 429 § 4 of the Code of Criminal Procedure (see paragraph 34 below).", "18. During the trial hearing of 8 August 2017, the applicant, represented by a new defence lawyer, was examined, as were the witnesses, and all of the above ‑ mentioned expert opinions (see paragraphs 7, 9, 12 and 16 above) were read out. Dr A.K. explained her opinion in detail, maintaining it in full and addressing the opinions submitted by Dr W.S. and Dr M.F. with regard to the differences in their conclusions.", "19. By a judgment of 8 August 2017, the Linz Regional Court held that the applicant had committed an offence which, had she been criminally liable at the time of the offence, would have had to be attributed to her as the offence of attempted resistance to State authority under Article 15 § 1 and Article 269 § 1 of the Criminal Code (see paragraphs 27 and 31 below). Furthermore, the applicant had committed this offence under the influence of a state of mind which excluded criminal liability under Article 11 of the Criminal Code (see paragraph 26 below), resulting from a serious mental or emotional disorder, namely undifferentiated schizophrenia. As it had to be feared that the applicant would commit further punishable offences with serious consequences, the court ordered her confinement in an institution for mentally ill offenders under Article 21 § 1 of the Criminal Code (see paragraph 28 below). The court based its findings regarding the applicant’s criminal liability and dangerousness above all on the expert opinion provided by Dr A.K., which was found to be conclusive and comprehensible and free from contradictions and uncertainties.", "20. The applicant lodged a plea of nullity ( Nichtigkeitsbeschwerde ) against the judgment and an appeal against the sentence, and a request to be permitted to produce evidence by obtaining a further psychiatric expert opinion under Article 127 § 3 of the Code of Criminal Procedure (see paragraph 27 below), aimed at proving that she was not dangerous within the meaning of Article 21 § 1 of the Criminal Code (see paragraph 28 below). She also lodged an individual application to challenge the constitutionality of the law ( Parteienantrag auf Normenkontrolle ) with the Constitutional Court ( Verfassungsgerichtshof ).", "21. On 6 March 2018 the Constitutional Court declined to deal with the application for lack of prospects of success. It referred to the limits set by the legislature in Article 21 §§ 1 and 3 and Article 25 §§ 1 and 3 of the Criminal Code (see paragraphs 28 ‑ 29 below) in respect of ordering preventive confinement, and those with regard to persons remaining in preventive confinement which, with due consideration being given to the dangerousness of the person concerned, prevented disproportionate confinement in an institution. It further found that the statutory rules of Article 21 § 1 of the Criminal Code (see paragraph 28 below) were not indeterminate or arbitrary, and that the legislature had thus made use of its discretion in a manner which was irreproachable under constitutional law.", "22. On 27 June 2018 the Supreme Court ( Oberster Gerichtshof ) rejected the applicant’s plea of nullity and referred the case to the Linz Court of Appeal ( Oberlandesgericht ) for a decision on the appeal. It considered that the applicant had presented arguments for an appeal but not for nullity; further, the applicant had failed to lodge a request under the first sentence of Article 127 § 3 of the Code of Criminal Procedure (see paragraph 27 below), in accordance with which doubts about the expertise of an expert must first be dispelled by questioning the expert in question, and if this failed to achieve the desired result, by consulting another expert.", "23. On 6 August 2018 the Linz Court of Appeal dismissed the applicant’s request to be permitted to produce evidence by obtaining a further psychiatric expert opinion. It considered that the Regional Court had already correctly pointed out why the earlier expert opinions, geared towards different statutory requirements, had not been able to call into question the expert opinion obtained in the present proceedings and based on an in-person examination. There was thus no contradiction between the expert opinions and there were no deficiencies in terms of substance within the meaning of Article 127 § 3 of the Code of Criminal Procedure (see paragraph 27 below) which would have necessitated a further expert opinion.", "24. Given the lapse of time since the preparation of the most recent expert opinion (see paragraph 16 above), the Court of Appeal requested a supplementary opinion thereto on the question whether the requirements for conditional release were (now) met. On 30 July 2018 Dr A.K. found – after another face ‑ to ‑ face examination – that the applicant was still suffering from undifferentiated schizophrenia and was, at that time, not in remission. She further maintained her previous conclusions, including that there was a still a high probability of offences with serious consequences being committed in the future and that therefore, the psychiatric requirements for confinement in an institution under Article 21 § 1 of the Criminal Code (see paragraph 28 below) were met. On this basis, the Court of Appeal held that conditional suspension of confinement was not a viable option at the time.", "Subsequent developments", "25. On 15 October 2020 the Linz Regional Court ordered the applicant’s conditional release by 30 October 2020, imposing specific requirements and a probationary period of five years. No further details about the applicant’s mental health condition or the expert opinions obtained in the context of her release were provided by the parties." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "Criminal Code ( Strafgesetzbuch )", "26. Article 11 of the Criminal Code concerns capacity for criminal responsibility and reads, in so far as relevant, as follows:", "“A person who, at the time of the offence, is incapable of recognising the wrongfulness of his or her act or of acting on the basis of such recognition because of a mental illness, a mental disability, a profound disturbance of consciousness or another serious mental disorder equivalent to one of these conditions, does not act culpably.”", "27. Article 15 concerns criminal liability for attempts and prescribes that penalties for intentional acts apply not only to the completed act but also to an attempt and any participation in an attempt. The act is attempted as soon as the perpetrator expresses his or her decision to carry it out or to induce another person to do so by an act immediately preceding the execution.", "28. The confinement in an institution for mentally ill offenders as a preventive measure is dealt with in Article 21, the relevant parts of which read as follows:", "“(1) If a person commits an offence punishable with a term of imprisonment exceeding one year, and if the person cannot be punished for the sole reason that he or she committed the offence under the influence of a state of mind excluding responsibility (Article 11) resulting from a serious mental or emotional disorder, the court shall order his or her confinement in an institution for mentally ill offenders, if in view of his or her person, his or her condition and the nature of the offence it is to be feared that he or she will otherwise, under the influence of the mental or emotional disorder, commit a criminal offence with serious consequences.", "(2) If such a fear exists, an order for confinement in an institution for mentally ill offenders shall also be made in respect of a person who, while not lacking responsibility, commits an offence punishable by a term of imprisonment exceeding one year under the influence of his or her severe mental or emotional disorder. In such a case the confinement is to be ordered at the same time as the sentence is passed.”", "29. Article 25 regulates the duration of preventive measures associated with deprivation of liberty and prescribes that these preventive measures are to be ordered for an indefinite period and enforced for as long as their purpose requires. The court must decide on the revocation of the preventive measure. Whether confinement in an institution for mentally ill offenders is still necessary must be reviewed by the court of its own motion at least once a year.", "30. Article 146 defines the crime of fraud as being committed by a person who, with the intention of unlawfully enriching himself or herself or a third party through the conduct of the deceived person, induces a person by deception to perform an act, acquiesce in an act or omit to perform an act which damages the assets of the deceived person or another person.", "31. Article 269 concerns the crime of resistance to State authority ( Widerstand gegen die Staatsgewalt ). It is placed in the chapter “Criminal offences against State authority” and reads, in so far as relevant, as follows:", "“(1) Any person who prevents an authority from performing an official act by force or by threat of force and any person who prevents an official from performing an official act by force or by a dangerous threat shall be liable to a custodial sentence not exceeding three years ...", "...", "(3) An official act within the meaning of paragraph 1 ... shall only be deemed to be an act by which the official, as an organ of sovereign administration or jurisdiction, exercises a command or coercive power.”", "Code of Criminal Procedure ( Strafprozessordnung )", "32. Article 126 of the Code of Criminal Procedure concerns, among other matters, the experts who are to be appointed if special expertise is required for investigations or for taking evidence which is otherwise not available to the prosecution authorities. The experts appointed must be, above all, persons who are registered on the list of court experts ( Gerichtssach-verständigenliste ). If other persons are appointed, they must be informed in advance about their essential rights and duties.", "33. Article 127 concerning expert opinions reads, in so far as relevant, as follows:", "“(2) Experts shall give their findings and expert opinion lege artis and according to the best of their knowledge and conscience. They shall obey summonses from the public prosecutor’s office and the court, and answer questions during trials, interviews and reconstructions of the criminal act.", "(3) If the findings are inconclusive or the expert opinion is contradictory or otherwise deficient, or if the statements of two experts on the facts observed by them or the conclusions drawn from their observations are significantly contradictory, and the concerns cannot be resolved by questioning them, a further expert shall be commissioned. If the case concerns the examination of psychological conditions and developments, an expert opinion shall be obtained from an expert with an authorisation to teach at a domestic or foreign university.”", "34. Article 429 concerns the procedure for the confinement in an institution for mentally ill criminal offenders under Article 21 § 1 of the Criminal Code (see paragraph 28 above) and reads, in so far as relevant, as follows:", "“(1) If there are sufficient grounds for assuming that the requirements of Article 21 § 1 of the Criminal Code have been met, the public prosecutor’s office shall lodge an application for confinement in an institution for mentally ill criminal offenders ...", "...", "(4) ... if the person concerned cannot remain at liberty without danger to himself or herself or others, or if medical observation is required, temporary detention in an institution for mentally ill criminal offenders or admission to a public hospital for mental illnesses shall be ordered ...”", "Act on Placement of Mentally Ill Persons in Hospitals (Hospitalisation Act) (Bundesgesetz über die Unterbringung psychisch Kranker in Krankenanstalten, Unterbringungsgesetz)", "35. Section 3 of the Hospitalisation Act concerns the requirements for the placement of mentally ill persons in hospitals and psychiatric wards under civil and administrative law. It provides that the only persons who may be accommodated in such an institution are those who: (1) suffer from a mental illness, and in connection therewith seriously and substantially endanger their life or health or the life or health of others, and (2) cannot be adequately medically treated or cared for in another way, in particular outside a psychiatric ward.", "Reform of the system of preventive measures", "36. In January 2015 a working group set up by the then Minister of Justice concerning a comprehensive reform of the system of preventive measures under the Criminal Code ( Maßnahmenvollzug ) submitted a report on the results achieved (see “Arbeitsgruppe Maßnahmenvollzug: Bericht an den Bundesminister für Justiz über die erzielten Ergebnisse”, BMJ ‑ V70301/0061 ‑ III 1/2014, January 2015). It aimed at fundamentally improving law and practice in the area of preventive measures, in particular the quality of the risk prognoses for mentally ill offenders in confinement. The report found that the number of persons held in such confinement had considerably increased in the past few years. Among various other flaws it found that there was a tendency towards admissions for offences with a lower risk potential. It considered that the best ‑ case scenario was to assume four “false positives” for one “true positive” person held in confinement and pointed at continued doubts about the consistent quality of expert opinions produced in the admission and discharge procedures, notably as regards the reliability of the risk prognoses, as attested by a previously commissioned study in 2011. The expert group therefore proposed, among many other things, that in the future, confinement should in principle be permitted for underlying offences which were punishable by more than three years’ imprisonment (with exceptions for cases of particularly high risk) and that there should be a direct causal relationship, specific to the serious mental illness, between the illness and the underlying offence. As a very important point it also made proposals with a view to improving the quality of expert opinions, notably by ensuring adequate remuneration of forensic psychiatric experts and by establishing (minimum) quality standards for their expert opinions and by promoting the range of qualification modules by the doctors’ association.", "37. The Ministry of Justice subsequently produced first draft legislative amendments in 2017. The most recent proposals date from May 2021 and aim at reforming the system of preventive measures in a comprehensive manner, with proposals for amendments of the Criminal Code, the Code of Criminal Procedure and the Juvenile Justice Act. This new initiative was also triggered by recent judgments of the Court having found violations of the Convention in that area (see Kuttner v. Austria, no. 7997/08, 16 July 2015, and Lorenz v. Austria, no. 11537/11, 20 July 2017), the need to bring the law in line with the Court´s increased case ‑ law on Article 5 of the Convention and furthermore with the UN Convention on the Rights of Persons with Disabilities. The proposed amendments intend to strengthen the principle of proportionality in the confinement of mentally ill offenders, to improve the risk prognoses and to raise the quality standards of such confinement. Based on the finding that the confinement of approximately 40 per cent of the persons currently held in institutions for mentally ill offenders has been ordered on the basis of underlying offences of a minor character, a new threshold is proposed to include only those underlying offences which are punishable by more than three years’ imprisonment. An exception is proposed with regard to offenders who are particularly dangerous to the life, limb, sexual integrity or sexual self ‑ determination of others, in which case confinement will also be possible for offences punishable by one to three years’ imprisonment.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION", "38. The applicant complained that her confinement in an institution for mentally ill offenders by the judgment of 8 August 2017, confirmed on 27 June and 6 August 2018 (see paragraphs 19, 22 and 23 above), had not been necessary or proportionate and was therefore contrary to Article 5 § 1 of the Convention, the relevant parts of which read as follows:", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;”", "Admissibility", "39. The Court notes that the complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.", "MeritsSubmissions by the parties", "Submissions by the parties", "Submissions by the parties", "(a) The applicant", "40. The applicant submitted that deprivation of liberty within the meaning of Article 5 § 1 (e) of the Convention was only permissible if it was necessary in accordance with the purpose of that measure, which in the present case was the protection of society from serious crimes by providing medical treatment for offenders with genuine mental illnesses, which could only be carried out on an inpatient basis. The criminal law penalties should be proportionate to the offence committed, otherwise the requirement of the proportionality of criminal law penalties with regard to the underlying offence would be violated. It would, for example, not be proportionate to impose a life sentence on someone for committing the offence of resistance to State authority. In the same vein, it would not be proportionate to order a person’s (potentially life ‑ long) confinement in an institution for mentally ill offenders, in particular in cases of minor and one ‑ off violence, as in the applicant’s case. The applicant argued that proportionality took on a particularly practical significance when determining the duration of deprivation of liberty. Even a deprivation of liberty that was in itself necessary, appropriate and initially reasonable might become disproportionate if it exceeded a certain duration.", "41. The applicant further submitted that under Article 21 of the Criminal Code (see paragraph 28 above), the duration of the confinement was detached from the underlying offence and the courts only considered the question of dangerousness (if and for as long as the mentally ill offender was considered to be dangerous). The underlying offence only set the threshold for when a potentially life ‑ long confinement could be ordered, that is in the case of all offences, except property offences, which provided for the deprivation of liberty for more than one year. Domestic legislation did not, however, permit a proportionality analysis between the underlying offence and the duration of the confinement. It was consequently not in compliance with Article 5 § 1 (e) of the Convention, as it did not ensure that confinement only took place in those cases where the mental illness by its nature or extent might justify compulsory confinement. Domestic legislation also allowed for confinement if there was no high risk of serious violent or sexual offences being committed, which could be ascertained from concrete circumstances relating to the person or his or her behaviour.", "42. In addition, the applicant maintained that Dr A.K., on whose expert opinion the Regional Court had mainly relied in its verdict (see paragraph 19 above), was not registered on the list of court experts, whereas the other two experts who had been consulted, Dr W.S. and Dr M.F. (see paragraphs 6 ‑ 7 and 9 and 11 ‑ 12 above), were on that list. The applicant was in particular insistent about the expert opinion of Dr W.S. who, according to her, had found that she did not present any danger of committing a serious crime (see paragraph 12 above). As regards the expert opinion provided by Dr A.K. almost eleven months after the offence at issue, reasonable doubts as to its correctness had been shown to exist, in particular because it contradicted the findings of Dr M.F. The Regional Court had failed to give sufficient reasons for its decision on why it had not followed Dr M.F.’s prognosis with regard to the applicant’s dangerousness, or for its conclusion that the applicant had posed a long-term threat, because the court had simply adopted the opinion of the expert whom it had appointed itself. The applicant also pointed out that besides the evening in question, there had never been another known incident in which she had been physically aggressive towards other persons. It was therefore incomprehensible, given the minor character of the offence at issue and the differing expert opinions, that no decisive expert opinion ( Obergutachten ) had been requested, as prescribed by Article 127 § 3 of the Code of Criminal Procedure (see paragraph 27 above).", "(b) The Government", "43. The Government insisted that the requirements of subparagraph (e) of Article 5 § 1 of the Convention were met in the present case. The Regional Court had based its decision primarily, but not exclusively, on the expert opinion of Dr A.K. (see paragraph 16 above), who had a venia docendi and who had examined the applicant in person. Dr A.K. had scrutinised the expert opinion provided by Dr W.S. in the preliminary proceedings (see paragraphs 11 ‑ 12 above), attributing the differences in the findings to Dr W.S. only having carried out a rudimentary study of the applicant’s medical history and not having examined the applicant in person. Dr A.K. had further discussed her expert opinion during the trial, providing the court and the applicant with the opportunity to put questions to her. No concerns had emerged as regards her professional competence. It was also not relevant that she was no longer registered on the list of court experts, as the same rights and obligations were incumbent on her under Article 127 § 2 of the Code of Criminal Procedure (see paragraph 27 above).", "44. Furthermore, the Regional Court had been able to gain a first-hand impression of the applicant’s mental state during the trial hearing and had not discerned any contradictions between those impressions and the expert opinion provided by Dr A.K., or other indications pointing to the incorrectness or any other deficiency in that opinion. The expert opinion provided by Dr M.F. during the placement proceedings (see paragraphs 6 ‑ 7 and 9 above) had been read out during the trial at the request of the applicant’s defence lawyer, and the Regional Court had taken note of it in its assessment of the evidence. Nor had any concerns as to the quality of Dr A.K.’s expert opinion been brought to light during the appeal proceedings.", "45. As regards the question whether the kind or degree of the applicant’s mental illness had warranted compulsory confinement, the Government referred to the findings of the Regional Court concerning the applicant’s dangerousness, according to which it was highly likely that she would, without inpatient treatment, commit an offence with serious consequences under the influence of her mental illness, above all a punishable offence against life and limb. Furthermore, the Court of Appeal had commissioned a supplementary opinion from Dr A.K. which confirmed, in particular, that offences with serious consequences were highly likely to be committed in the future (see paragraph 24 above).", "46. In addition, the Government argued that under Article 25 of the Criminal Code (see paragraph 29 above), preventive measures were to be implemented only for as long as their purpose required, and the necessity of continued confinement had to be reviewed by a court of its own motion at least once a year. The fact that the applicant was granted conditional release on 30 October 2020 (see paragraph 25 above) showed that the domestic courts had complied with Article 5 § 4 of the Convention when reviewing the need for the applicant’s continued confinement and concluding that at that moment in time she no longer presented a danger or at least not a danger warranting such measures. Lastly, the Government pointed out that the applicant had been placed in an institution specialising in mental and neurological disorders.", "The Court’s assessment", "(a) General principles established in the Court’s case-law", "47. The Court reiterates that in order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting point must be his or her concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see, among many other authorities, De Tommaso v. Italy [GC], no. 43395/09, § 80, 23 February 2017). No deprivation of liberty will be lawful unless it falls within one of the permissible grounds specified in sub-paragraphs (a) to (f) of Article 5 § 1 (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 88, 15 December 2016).", "48. As regards the deprivation of liberty of persons suffering from mental disorders, an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind, that is, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see, among many other authorities, Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 127, 4 December 2018; Rooman v. Belgium [GC], no. 18052/11, § 192, 31 January 2019; and Denis and Irvine v. Belgium [GC], nos. 62819/17 and 63921/17, § 135, 1 June 2021).", "49. In deciding whether an individual should be detained as a person “of unsound mind”, the national authorities are to be recognised as having a certain discretion, since it is in the first place for the national authorities to evaluate the evidence adduced before them in a particular case; the Court’s task is to review under the Convention the decisions of those authorities (see Denis and Irvine, cited above, § 136).", "50. As regards the first condition for a person to be deprived of his liberty as being of “unsound mind”, namely that a true mental disorder must have been established before a competent authority on the basis of objective medical expertise, the Court reiterates that, despite the fact that the national authorities have a certain discretion, in particular on the merits of clinical diagnoses, the permissible grounds for deprivation of liberty listed in Article 5 § 1 are to be interpreted narrowly. A mental condition has to be of a certain severity in order to be considered as a “true” mental disorder for the purposes of sub-paragraph (e) of Article 5 § 1, as it has to be so serious as to necessitate treatment in an institution for mental health patients (see Ilnseher, cited above, § 129, and Denis and Irvine, cited above, § 136).", "51. No deprivation of liberty of a person considered to be of unsound mind may be deemed in conformity with Article 5 § 1 (e) of the Convention if it has been ordered without seeking the opinion of a medical expert. Any other approach falls short of the required protection against arbitrariness, inherent in Article 5 of the Convention (see Kadusic v. Switzerland, no. 43977/13, § 43, 9 January 2018, with further references). The particular form and procedure in this respect may vary depending on the circumstances. It may be acceptable, in urgent cases or where a person is arrested because of his violent behaviour, that such an opinion be obtained immediately after the arrest. In all other cases, a prior consultation is necessary. Where no other possibility exists, for instance owing to a refusal of the person concerned to appear for an examination, at least an assessment by a medical expert on the basis of the file must be sought, failing which it cannot be maintained that the person has reliably been shown to be of unsound mind (see Varbanov v. Bulgaria, no. 31365/96, § 47, ECHR 2000 ‑ X, and Constancia v. the Netherlands (dec.), no. 73560/12, § 26, 3 March 2015).", "52. As for the requirements to be met by an “objective medical expertise”, the Court considers in general that the national authorities are better placed than itself to evaluate the qualifications of the medical expert in question. However, in certain specific cases, it has considered it necessary for the medical experts in question to have a specific qualification, and has in particular required the assessment to be carried out by a psychiatric expert where the person confined as being “of unsound mind” had no history of mental disorders, as well as, sometimes, the assessment to be made by an external expert (see Ilnseher, cited above, § 130, and the references therein).", "53. Moreover, the objectivity of the medical expertise entails a requirement that it was sufficiently recent. The question whether the medical expertise was sufficiently recent depends on the specific circumstances of the case before it (ibid., § 131, and the references therein).", "54. As regards the second requirement for an individual to be deprived of his liberty as being of “unsound mind”, namely that the mental disorder must be of a kind or degree warranting compulsory confinement, the Court reiterates that a mental disorder may be considered as being of a degree warranting compulsory confinement if it is found that the confinement of the person concerned is necessary because the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him from, for example, causing harm to himself or other persons (ibid., § 133; see also Stanev v. Bulgaria [GC], no. 36760/06, § 146, ECHR 2012).", "55. The relevant time at which a person must be reliably established to be of unsound mind, for the requirements of sub ‑ paragraph (e) of Article 5 § 1, is the date of the adoption of the measure depriving that person of his liberty as a result of that condition. However, as shown by the third minimum condition for the detention of a person for being of unsound mind to be justified, namely that the validity of continued confinement must depend on the persistence of the mental disorder, changes, if any, to the mental condition of the detainee following the adoption of the detention order must be taken into account (see Denis and Irvine, cited above, § 137).", "56. The Court reiterates that, in certain circumstances, the welfare of a person with mental disorders might be a further factor to take into account, in addition to medical evidence, in assessing whether it is necessary to place the person in an institution. However, the objective need for accommodation and social assistance must not automatically lead to the imposition of measures involving deprivation of liberty. The Court considers that any protective measure should reflect as far as possible the wishes of persons capable of expressing their will. Failure to seek their opinion could give rise to situations of abuse and hamper the exercise of the rights of vulnerable persons. Therefore, any measure taken without prior consultation of the interested person will, as a rule, require careful scrutiny (see N. v. Romania, no. 59152/08, § 146, 28 November 2017, and Stanev, cited above, § 153).", "57. Furthermore, it is primarily for the domestic courts to assess the scientific quality of different psychiatric opinions and, in that respect, they have a certain margin of appreciation. When the national courts have examined all aspects of different expert reports on the necessity of an individual’s psychiatric internment, the Court will not intervene unless their findings are arbitrary or unscientific (see Hodžić v. Croatia, no. 28932/14, § 63, 4 April 2019, and Ruiz Rivera v. Switzerland, no. 8300/06, § 62, 18 February 2014).", "58. Lastly, Article 5 § 1 (e) of the Convention does not specify the possible acts, punishable under criminal law, for which an individual may be detained as being “of unsound mind”, nor does that provision identify the commission of a previous offence as a precondition for detention (see Denis and Irvine, cited above, § 168). It allows compulsory confinement as a security measure, the purpose of which is preventive rather than punitive (ibid., § 141).", "(b) Application of the above principles to the present case", "59. The Court notes at the outset that Article 5 of the Convention is applicable to the present case as the applicant has been deprived of her liberty (see paragraph 47 above). The Court further notes that the issue in dispute between the parties concerns the question whether the applicant’s confinement in an institution for mentally ill offenders as a preventive measure complied with Article 5 § 1 (e) of the Convention.", "60. The applicant mainly contended that this measure was disproportionate to the underlying minor offence, and that there had been differing conclusions by the experts and therefore another, decisive, expert opinion had been called for. The Government disagreed, insisting that all relevant Convention requirements had been met in the present case.", "61. The Court first observes that during the criminal proceedings initiated against the applicant, expert opinions were requested from two experts, Dr W.S. and Dr A.K., who concluded that the applicant suffered from a schizoaffective disorder (Dr W.S.) or undifferentiated schizophrenia (Dr A.K.) (see paragraphs 12, 16 and 24 above). Similarly, a third expert, Dr M.F., who was consulted during the two civil placement proceedings held in 2016 ‑ 2017, equally concluded, in the respective sets of proceedings that the applicant suffered from a schizoaffective disorder, or from “paranoid schizophrenia” (see paragraphs 7 and 9 above). All three experts consulted were medical specialists in psychiatry and neurology. Two of them, namely Dr A.K. and Dr M.F., reached their conclusions after conducting face-to-face examinations. All of the expert opinions were produced in 2016 and 2017, that is the period in which the underlying offence had been committed (2016) and criminal proceedings instituted against the applicant (2016 ‑ 2017), and therefore they were sufficiently recent in the circumstances of this case. Furthermore, the diagnoses of all three experts concluded with diagnosing a type of schizophrenic disorder, which is undoubtedly serious enough to be considered as a “true” mental disorder which may render treatment in an institution necessary.", "62. As regards the applicant’s argument that Dr A.K., on whose expert opinion the Regional Court mainly relied in its verdict, was not registered on the list of court experts (see paragraph 42 above), the Court first reiterates that the national authorities are better placed than itself to evaluate the qualifications of the medical experts in question (see paragraph 52 above) and that it is primarily for the domestic courts to assess the scientific quality of different psychiatric opinions (see paragraph 57 above). Concerning the present case, the Court notes that Article 126 of the Code of Criminal Procedure does not require court-appointed experts to be mandatorily registered on the list of court experts (see paragraph 32 above). Article 126 provides that the experts appointed must be, above all, those who are registered on the list in question. However, it does not exclude the appointment as court experts of persons not registered on the list. Furthermore, all experts, whether or not registered on the list, are bound by the same rights and duties, notably the obligation to give their findings and expert opinion lege artis and according to the best of their knowledge and conscience, as provided in Article 127 § 2 of the Code of Criminal Procedure (see paragraph 27 above). The Court also notes in this context that Dr A.K. is a renowned expert with a university venia docendi and head of the Forensic Department of the Neuromed Campus of the University Clinic Linz. The applicant did not call into question her qualifications as an expert in the domestic proceedings. Furthermore, the Court observes that the applicant’s initial defence lawyer in fact objected to the use of the expert opinion by Dr W.S., who had concluded that the applicant had been criminally liable at the time of the offence, and requested to be permitted to produce evidence by obtaining another expert opinion with the aim of proving that, at the time of the offence, the applicant had lacked the capacity for criminal liability (see paragraph 14 above). In conclusion, the Court sees no reason to doubt that the applicant’s mental disorder was established on the basis of objective medical expertise.", "63. Turning to the question of whether the applicant’s mental disorder was of a kind or degree warranting compulsory confinement, the Court reiterates that the Regional Court, in its decision ordering her confinement in an institution for mentally ill offenders, above all relied on the expert opinion provided by Dr A.K., and the latter’s assessment of the danger she represented to others (see paragraph 19 above). In this context, the Court considers it important to note that Dr A.K. was able to conduct a face-to-face examination of the applicant, whereas Dr W.S. could not, as the applicant did not obey a summons for her examination. Dr W.S. therefore had to base his expert opinion solely on the existing files, and concluded himself, contrary to the claim of the applicant (see paragraph 42 above), that he was not able to make any prognosis about any future offences with serious consequences (see paragraph 12 above). At the same time, Dr A.K.’s expert opinion was very detailed and stretched over twenty-nine pages. Furthermore, during the trial, Dr A.K. thoroughly discussed the expert opinion provided by Dr W.S., as well as those provided by Dr M.F. during the civil placement proceedings, all of which were read out, and she explained the differences between them (see paragraphs 16 and 18 above).", "64. The Court further observes that the applicant was described as lacking awareness of the fact that she suffered from a disorder and as displaying a negative attitude towards treatment, and as sometimes also having refused to take medication in the past (see paragraphs 7, 9 and 16 above). These were all factors which were taken into consideration by the domestic courts when deciding on the applicant’s confinement as opposed to outpatient treatment. The Court is therefore satisfied that the applicant’s deprivation of liberty had been shown to have been necessary in the circumstances of her case.", "65. As regards the question of the persistence of the mental disorder, verified by objective medical evidence, throughout the applicant’s confinement, the Court notes that her confinement was ordered by the Regional Court’s judgment of 8 August 2017 (see paragraph 19 above) on the basis of, above all, Dr A.K.’s expert opinion of 1 April 2017. Although, one year later, the Court of Appeal upheld the confinement order on 6 August 2018, it did not do so until it received a supplementary opinion to Dr A.K.’s expert opinion, precisely because of the lapse of time since the preparation of that expert opinion (see paragraph 24 above). Significantly, Dr A.K. conducted another face ‑ to ‑ face examination of the applicant and submitted her supplementary opinion on 30 July 2018, again concluding that the applicant still suffered from undifferentiated schizophrenia, and also maintaining her risk prognosis with regard to future offences with serious consequences. The Court is therefore satisfied that, when the Court of Appeal confirmed the initial confinement order, the persistence of the applicant’s mental disorder was reliably verified by objective medical evidence. In this context, the Court also observes that on 15 October 2020, that is slightly more than two years later, the same Regional Court ordered her conditional release from confinement (see paragraph 25 above). While no further details were provided to the Court on any possible expert opinions obtained in this context, it is noted that in accordance with Article 25 of the Criminal Code, preventive measures, including confinement in an institution for mentally ill offenders, are only to be enforced for as long as their purpose requires, and the continued necessity of such confinement must be reviewed by a court of its own motion at least once a year (see paragraph 29 above).", "66. While the Court is mindful of the fact that the applicant was accused of attempted resistance to State authority, which the applicant considers an offence of a minor character and therefore not proportionate to the sanction of confinement as preventive measure imposed on her (see paragraph 40 above), it stresses that it has already held that Article 5 § 1 (e) of the Convention does not specify the possible acts, punishable under the criminal law, for which an individual may be detained as being “of unsound mind”, nor does that provision identify the commission of a previous offence as a precondition for detention (see paragraph 58 above; and see also Denis and Irvine, cited above, § 168). In other words, whether or not it was a minor offence is not decisive when examining the compliance of a person’s deprivation of liberty with Article 5 § 1 (e) of the Convention. Indeed, the authorities are not required to take into account the nature of the acts committed by the individual concerned which gave rise to his or her compulsory confinement (ibid., § 169). Nonetheless, the Court takes note of the currently ongoing discussion on a comprehensive reform of the system of preventive measures in Austria, in particular its aim to achieve compliance with the Court´s case-law, to strengthen the principle of proportionality in the system of preventive detention and to improve considerably the quality of the risk prognoses. This encompasses the aim of improving the quality of expert opinions produced in this context by, for example, establishing (minimum) quality standards for such expert opinions (see paragraphs 36–37 above).", "67. In conclusion, the foregoing considerations are sufficient to enable the Court to consider that at the time of the decision ordering the applicant’s confinement in an institution for mentally ill offenders on 8 August 2017, she was reliably shown to be of unsound mind, that is, a true mental disorder had been established before a competent authority on the basis of objective medical expertise, and that her mental disorder was of a kind or degree warranting compulsory confinement. Furthermore, before confirming her continued confinement on 6 August 2018, the persistence of her mental disorder has been reliably verified on the basis of objective medical evidence.", "68. There has accordingly been no violation of Article 5 § 1 (e) of the Convention.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "69. The applicant complained that the rejection of her request to consult a further medical expert concerning her state of mind at the time of the events had resulted in a breach of her right to a fair trial as provided for in Article 6 § 1 of the Convention, which reads as follows:", "“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "70. The Government considered that the domestic courts had complied with the Convention requirements flowing from the principle of equality of arms concerning the expert reports. The applicant insisted that the domestic courts should have ordered a further, decisive expert opinion ( Obergutachten ) under Article 127 § 3 of the Code of Criminal Procedure (see paragraph 27 above) and that the failure to do so had rendered her trial unfair.", "71. At the outset the Court reiterates that Article 6 § 1 of the Convention does not lay down any rules on the admissibility of evidence or the way in which evidence should be assessed, these being primarily matters for regulation by national law and the national courts. Normally, issues such as the weight attached by the national courts to particular items of evidence or to findings or assessments submitted to them for consideration are not for the Court to review. The Court should not act as a fourth-instance body and will therefore not question under Article 6 § 1 the national courts’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 83, 11 July 2017, with further references).", "72. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence were respected. It must be examined in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (see Bykov v. Russia [GC], no. 4378/02, § 90, 10 March 2009, with further references).", "73. Furthermore, the requirement of a fair trial does not impose on a trial court an obligation to order an expert opinion or any other investigative measure merely because a party has requested it. Where the defence insists on the court hearing a witness or taking other evidence (such as an expert report, for instance), it is for the domestic courts to decide whether it is necessary or advisable to accept that evidence for examination at the trial (see Poletan and Azirovik v. the former Yugoslav Republic of Macedonia, nos. 26711/07 and 2 others, § 95, 12 May 2016, and Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 718, 25 July 2013, with further references).", "74. Turning to the circumstances of the present case, the Court notes that the applicant’s complaint under this head concerned the domestic courts’ refusal to order yet another expert report as further evidence. However, the admissibility of evidence, including the question of ordering further evidence, is primarily a matter for the national courts. Moreover, the Court observes that the applicant had ample opportunity of challenging the expert reports produced in the course of the proceedings and to oppose their use, and that she had indeed availed herself of that opportunity (see, for example, paragraph 14 above). No argument was put forward before this Court which would make it doubt the quality of the expert reports produced by the various experts consulted during the proceedings. There is no need for the Court to determine whether Article 6 of the Convention is applicable to the present case under its civil or criminal head (for an outline of the Court’s case ‑ law concerning the applicability of Article 6 in the context of the internment in a psychiatric hospital of mentally ill offenders, see Hodžić, cited above, §§ 40 ‑ 47), as in any event the domestic courts’ findings do not disclose any appearance of arbitrariness nor of manifest unreasonableness (contrast with, for example, Hodžić, cited above, §§ 69 ‑ 75). Consequently, this complaint must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "ALLEGED VIOLATION OF ARTICLE 14 in conjunction with article 5 OF THE CONVENTION", "75. The applicant complained that under domestic law it would not have been an offence justifying her confinement in an institution if she had slapped someone who was not a State official. She relied in substance on Article 5 in conjunction with Article 14 of the Convention, which reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "76. The Government submitted that there was no difference in the treatment of persons finding themselves in comparable situations to that of the applicant. They argued that if another mentally ill offender had acted in the same way vis ‑ à ‑ vis a State official, he or she would have been subjected to the same treatment and would – provided all requirements set out in Article 21 § 1 of the Criminal Code (see paragraph 28 above) had been met – likewise have had to be confined in an institution for mentally ill offenders. The applicant had thus not been subjected to a difference in treatment on the basis of the Criminal Code to any other mentally ill offender. The Government consequently contended that there was no reason for them to elaborate on any possible grounds for justification on this point.", "77. The applicant insisted that her right to freedom from discrimination had been severely curtailed. Hitting a police officer in the chest, without causing an injury, could result in a potentially life ‑ long confinement for a mentally ill offender. If she had hit another person in the same way, she would not have been placed in a psychiatric ward. In her view, the differentiation in domestic legislation between hitting a police officer and hitting another person did not serve any legitimate purpose.", "78. The Court reiterates that Article 14 complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Convention Articles (see Carson and Others v. the United Kingdom, no. 42184/05, § 63, 4 November 2008, with further references). Given that the applicant’s personal liberty was at stake in the present case, the facts fall within the ambit of Article 5 of the Convention.", "79. The Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14. Moreover, for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Article 14 lists specific grounds which constitute “status” including, inter alia, race, national or social origin and birth. However, the list is illustrative and not exhaustive, as is shown by the words “any ground such as” and the inclusion in the list of the phrase “any other status”. Those words have generally been given a wide meaning and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent (see Biao v. Denmark [GC], no. 38590/10, § 89, 24 May 2016, with further references). Furthermore, not all differences in treatment – or failure to treat differently persons in relevantly different situations – constitute discrimination, but only those devoid of an “objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see Molla Sali v. Greece [GC], no. 20452/14, § 135, 19 December 2018; Fabris v. France [GC], no. 16574/08, § 56, ECHR 2013 (extracts); and D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007 ‑ IV).", "80. The question therefore arises whether there has been a difference in treatment in the present case of persons in relevantly similar situations on the basis of an identifiable “status” and if so, whether that treatment pursued a legitimate aim. The Government argued that all mentally ill offenders would receive the same treatment, whereas the applicant contended that the discriminatory aspect was the fact of having hit a police officer rather than a private citizen.", "81. At the outset the Court notes that there are doubts whether the present case concerns a difference of treatment based on “status” within the meaning of Article 14 of the Convention. This question can be left open however as this complaint is in any event manifestly ill-founded on other grounds. For the Court the starting point is the definition of the offence which the applicant has been accused of, namely resistance to State authority, which is defined in Article 269 of the Criminal Code as “any person who prevents an authority from performing an official act by force or by threat of force and any person who prevents an official from performing an official act by force or by a dangerous threat” (see paragraph 31 above). It is clear under domestic law that, while the use of “force” is a necessary requirement to establish this offence, its purpose is not to punish the fact that the applicant hit a police officer but rather to punish (in this case) the attempt to prevent the police officer from performing an official act when the latter was arresting her, contrary to the special protection the Austrian legislator intended to confer on the enforcement and the exercise of State authority (see paragraph 31 above). The same provision cannot come into play when the same action is done vis ‑ à ‑ vis a private citizen, so far as the latter are not entitled to perform an official act in the exercise of State authority. The applicant is therefore not in a relevantly similar situation with someone who has hit a private person. Consequently, this complaint is unsubstantiated and must be rejected as manifestly ill ‑ founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1982 and lives in St Petersburg.", "7. Since 2002 the applicant has suffered from a mental disorder. On several occasions he was placed in Hospital no. 6 in St Petersburg for in ‑ patient psychiatric treatment. In 2003 he obtained the status of a disabled person. The applicant lived with his mother; he did not work and received a disability pension.", "8. In May 2003 the applicant ’ s grandmother died. The applicant inherited a flat from her in St Petersburg and a house with a plot of land in the Leningrad region.", "9. On 27 July 2004 the applicant was placed in Hospital no. 6 for in ‑ patient treatment.", "A. Incapacitation proceedings", "10. On 3 August 2004 the applicant ’ s mother lodged an application with the Vasileostrovskiy District Court of St Petersburg, seeking to deprive the applicant of legal capacity. She claimed that her son was inert and passive, that he rarely left the house, that he spent his days sitting on a couch, and that sometimes he behaved aggressively. She indicated that her son had recently inherited property from his grandmother; however, he had not taken the necessary steps to register his property rights. This indicated that he was incapable of leading an independent social life and thus needed a guardian. It appears that the applicant was not formally notified about the proceedings that had been brought in respect of him.", "11. On 10 August 2004 the judge invited the applicant and his mother to court to discuss the case. However, there is no evidence that the invitation ever reached the applicant. The court also requested the applicant ’ s medical records from Hospital no. 6.", "12. On 12 October 2004 the judge of the Vasileostrovskiy District Court of St Petersburg commissioned a psychiatric expert examination of the applicant ’ s mental health. The examination was assigned to the doctors of Hospital no. 6, where the applicant had been undergoing treatment. The judge formulated two questions to the doctors: firstly, whether the applicant suffered from any mental illness; and, secondly, whether he was able to understand his actions and control them.", "13. On 12 November 2004 an expert team from Hospital no. 6 examined the applicant and his medical records. The report prepared by the expert team may be summarised as follows. After graduating from college, the applicant worked for a short time as an interpreter. However, some time later he became aggressive, unsympathetic and secluded, and prone to empty philosophising. He abandoned his job, started attending religious meetings and visiting Buddhist shrines, lost most of his friends, neglected his personal hygiene and became very negative towards his relatives. He suffered from anorexia and was hospitalised because of this.", "14. In August 2002 he was placed in a psychiatric hospital for the first time with a diagnosis of “simple schizophrenia”. In April 2003 he was discharged from hospital; however, later that same month he was admitted again because of his aggressive behaviour towards his mother. In the following months he was placed in hospital two further times. In April 2004 he was discharged. However, he “continued to live in an antisocial way ”. He did not work, loitered in the flat, prohibited his mother from preparing him food or from leaving the flat or moving around, and threatened her. She was so afraid of the applicant that she once spent a night at friends of hers and had to complain to the police about her son.", "15. The final part of the report concerned the applicant ’ s mental condition at the time of his examination. The doctors noted that the applicant ’ s social maladjustment and autism had worsened. They noted, inter alia, that “the applicant did not understand why he had been subjected to a [forensic] psychiatric examination”. The doctors further stated that the applicant ’ s “intellectual and mnemonic abilities were without any impairment”. However, his behaviour was characterised by several typical features of schizophrenia, such as “ formality of contacts, structural thought disorder ..., lack of judgment, emotional emasculation, coldness, reduced energy potential ”. The expert team concluded that the applicant was suffering from “simple schizophrenia with a manifest emotional and volitional defect” and that he could not understand his actions or control them.", "16. On 28 December 2004 Judge A. of the Vasileostrovskiy District Court held a hearing on the merits of the case. The applicant was neither notified nor present at that hearing. The applicant ’ s mother was notified but did not appear. She informed the court that she maintained her initial request and asked the court to examine the case in her absence. The case was examined in the presence of the district prosecutor. A representative of Hospital no. 6 was also present. The representative of the hospital, described in the judgment as “an interested party”, asked the court to declare the applicant incapable. It appears that the prosecutor did not make any remarks on the substance of the case. The hearing lasted ten minutes. As a result, the judge declared the applicant legally incapable, referring to the experts ’ findings.", "17. Since no appeal was lodged against the judgment of 28 December 2004 within the ten-day time-limit provided by law, the judgment became final on 11 January 2005.", "18. On 14 January 2005 the applicant ’ s mother received a copy of the full text of the judgment of 28 December 2004. Subsequently, on an unspecified date, she was appointed the applicant ’ s guardian and was authorised by law to act on his behalf in all matters.", "19. According to the applicant, he was not sent a copy of the judgment and only became aware of its existence by chance in November 2005, when he found a copy of the judgment among his mother ’ s papers at home.", "B. The first meeting with the lawyer", "20. On 2 November 2005 the applicant contacted Mr Bartenev, a lawyer with the Mental Disability Advocacy Centre (“the lawyer”), and explained the situation. The applicant and the lawyer met for two hours and discussed the case. According to the lawyer, who holds a degree in medicine from the Petrozavodsk State University, during the meeting the applicant was in an adequate state of mind and fully able to understand complex legal issues and give relevant instructions. On the same day the lawyer helped the applicant draft a request to restore the time-limits for lodging an appeal against the judgment of 28 December 2004.", "C. Confinement in the psychiatric hospital in 2005", "21. On 4 November 2005 the applicant was placed in Hospital no. 6. Admission to hospital was requested by the applicant ’ s mother, as his guardian; in terms of domestic law it was therefore voluntary and did not require approval by a court (see paragraph 56 below). The applicant claimed, however, that he had been confined to hospital against his will.", "22. On 9, 10, 12 and 15 November 2005 the lawyer attempted to meet his client in hospital. The applicant, in turn, requested the hospital administration to allow him to see his lawyer in private. However, Dr Sh., the Director of the hospital, refused permission. He referred to the applicant ’ s mental condition and the fact that the applicant was legally incapable and therefore could only act through his guardian.", "23. On 18 November 2005 the lawyer had a telephone conversation with the applicant. Following that conversation the applicant signed a form authorising the lawyer to lodge an application with the European Court of Human Rights in connection with the events described above. That form was then transmitted to the lawyer through a relative of another patient in Hospital no. 6.", "24. The lawyer reiterated his request for a meeting. He specified that he was representing the applicant before the European Court and enclosed a copy of the power of attorney. However, the hospital administration refused permission on the ground that the applicant did not have legal capacity. The applicant ’ s guardian also refused to take any action on the applicant ’ s behalf.", "25. From December 2005 the applicant was prohibited from having any contact with the outside world; he was not allowed to keep any writing equipment or use a telephone. The applicant ’ s lawyer produced a written statement by Mr S., another former patient in Hospital no. 6. Mr S. met the applicant in January 200 6 while Mr S. was in the hospital in connection with attempted suicide. Mr S. and the applicant shared the same room. In the words of Mr S., the applicant was someone friendly and quiet. However, he was treated with strong medicines, such as Haloperidol and Chlorpromazine. The hospital staff prevented him from meeting his lawyer or his friends. He was not allowed to write letters; his diary was confiscated. According to the applicant, he once attempted to escape from the hospital, only to be captured by the staff members who secured him to his bunk bed.", "D. Applications for release", "26. On 1 December 2005 the lawyer complained to the guardianship office of Municipal District no. 11 of St Petersburg about the actions of the applicant ’ s official guardian, namely his mother. He claimed that the applicant had been placed in the hospital against his will and without medical necessity. The lawyer also complained that the hospital administration was preventing him from meeting the applicant.", "27. On 2 December 2005 the applicant himself wrote a letter in similar terms to the district prosecutor. He indicated, in particular, that he was prevented from meeting his lawyer, that his hospitalisation had not been voluntary, and that his mother had placed him in the hospital in order to appropriate his flat.", "28. On 7 December 2005 the applicant wrote a letter to the Chief Doctor of Hospital no. 6, asking for his immediate discharge. He claimed that he needed some specialist dental assistance which could not be provided within the psychiatric hospital. In the following weeks, the applicant and his lawyer wrote several letters to the guardianship authority, district prosecutor, public health authority, and so on, calling for the applicant ’ s immediate discharge from the psychiatric hospital.", "29. On 14 December 2005 the district prosecutor advised the lawyer that the applicant had been placed in the hospital at the request of his official guardian, and that all questions related to his eventual release should be decided by her.", "30. On 16 January 2006 the guardianship office informed the lawyer that the actions of the applicant ’ s guardian had been lawful. According to the guardianship office, on 12 January 2006 the applicant was examined by a dentist. As follows from this letter, the representatives of the guardianship office did not meet the applicant and relied solely on information obtained from the hospital and from his guardian – the applicant ’ s mother.", "E. Request under Rule 39 of the Rules of Court", "31. In a letter of 10 December 2005, the lawyer requested the Court to indicate to the Government interim measures under Rule 39 of the Rules of Court. In particular, he requested the Court to oblige the Russian authorities to grant him access to the applicant with a view to assisting him in the proceedings and preparing his application to the European Court.", "32. On 15 December 2005 the President of the Chamber decided not to take any decision under Rule 39 until more information was received. The parties were invited to produce additional information and comments regarding the subject matter of the case.", "33. Based on the information received from the parties, on 6 March 2006 the President of the Chamber decided to indicate to the Government, under Rule 39 of the Rules of Court, interim measures desirable in the interests of the proper conduct of the proceedings before the Court. These measures were as follows: the Government was directed to organise, by appropriate means, a meeting between the applicant and his lawyer. That meeting could take place in the presence of the personnel of the hospital where the applicant was detained, but outside their hearing. The lawyer was to be provided with the necessary time and facilities to consult with the applicant and help him in preparing the application before the European Court. The Government was also requested not to prevent the lawyer from having such a meeting with his client at regular intervals in future. The lawyer, in turn, was obliged to be cooperative and comply with reasonable requirements of hospital regulations.", "34. However, the applicant ’ s lawyer was not given access to the applicant. The Chief Doctor of Hospital no. 6 informed the lawyer that he did not regard the Court ’ s decision on interim measures as binding. Furthermore, the applicant ’ s mother objected to the meeting between the applicant and the lawyer.", "35. The applicant ’ s lawyer challenged that refusal before the St Petersburg Smolninskiy District Court, referring to the interim measure indicated by the European Court of Human Rights. On 28 March 2006 the court upheld his claim, declaring the ban on meetings between the applicant and his lawyer as unlawful.", "36. On 30 March 2006 the former Representative of the Russian Federation at the European Court of Human Rights, Mr P. Laptev, wrote a letter to the President of the Vasileostrovskiy District Court of St Petersburg, informing him of the interim measures applied by the Court in the present case.", "37. On 6 April 2006 the Vasileostrovskiy District Court examined, on the applicant ’ s motion, the Court ’ s request under Rule 39 of the Rules of Court and held that the lawyer should be allowed to meet the applicant.", "38. The hospital and the applicant ’ s mother appealed against that decision. On 26 April 2006 the St Petersburg City Court examined their appeal and quashed the lower court ’ s judgment of 6 April 2006. The City Court held, in particular, that the District Court had no competence to examine the request lodged by the Representative of the Russian Federation. The City Court further noted that the applicant ’ s official guardian – his mother – had not applied to the court with any requests of this kind. The City Court finally held as follows:", "“ ... The applicant ’ s complaint [to the European Court ] was lodged against the Russian Federation ... The request by the European Court was addressed to the authorities of the Russian Federation. The Russian Federation as a special subject of international relations enjoys immunity from foreign jurisdiction; it is not bound by coercive measures applied by foreign courts and cannot be subjected to such measures ... without its consent. The [domestic] courts have no right to undertake on behalf of the Russian Federation an obligation to comply with the preliminary measures ... This can be decided by the executive ... by way of an administrative decision.”", "39. On 16 May 2006 the St Petersburg City Court examined the appeal against the judgment of 28 March 2006 lodged by the Chief Doctor of Hospital no. 6. The City Court held that “under Rule 34 of the Rules of Court, the authority of an advocate [representing the applicant before the European Court ] should be formalised in accordance with the legislation of the home country”. The City Court further held that under Russian law the lawyer could not act on behalf of the client in the absence of an agreement between them. However, no such agreement had been concluded between Mr Bartenev (the lawyer) and the applicant ’ s mother – the person who had the right to act on behalf of the applicant in all legal transactions. As a result, the City Court concluded that the lawyer had no authority to act on behalf of the applicant, and his complaint should be dismissed. The judgment of 28 March 2006 by the Smolninskiy District Court was thus reversed.", "40. On the same day the applicant was discharged from hospital and met with his lawyer.", "F. Appeals against the judgment of 2 8 December 2004", "41. On 20 November 2005 the applicant ’ s lawyer brought an appeal against the decision of 28 December 2004. He also requested the court to extend the time-limit for lodging the appeal, claiming that the applicant had not been aware of the proceedings in which he had been declared incapable. The appeal was lodged through the registry of the Vasileostrovskiy District Court.", "42. On 22 December 2005 Judge A. of the Vasileostrovskiy District Court returned the appeal to the applicant ’ s lawyer without examination. She indicated that the applicant had no legal capacity to act and, therefore, could only lodge an appeal or any other request through his guardian.", "43. On 23 May 2006, after the applicant ’ s discharge from the psychiatric hospital, the applicant ’ s lawyer appealed against the decision of 22 December 2005. By a ruling of 5 July 2006, the St Petersburg City Court upheld the decision of 22 December 2005. The City Court held that the Code of Civil Procedure did not allow for the lodging of applications for restoration of procedural terms by legally incapable persons.", "44. In the following months the applicant ’ s lawyer introduced two appeals for supervisory review, but to no avail.", "45. According to the applicant ’ s lawyer, in 2007 the applicant was admitted to Hospital no. 6 again, at the request of his mother." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Legal capacity", "46. Under Article 21 of the Civil Code of the Russian Federation of 1994, any individual aged 18 or over has, as a rule, full legal capacity ( дееспособность ), which is defined as “the ability to acquire and enjoy civil rights, create and fulfil civil obligations by his own acts”. Under Article 22 of the Civil Code legal capacity can be limited, but only on the grounds defined by law and within a procedure prescribed by law.", "47. Under Article 29 of the Civil Code, a person who cannot understand or control his or her actions as a result of a mental illness may be declared legally incapable by the court and placed in the care of a guardian ( опека ). All legal transactions on behalf of the incapacitated person are concluded by his guardian. The incapacitated person can be declared fully capable if the grounds on which he or she was declared incapable cease to exist.", "48. Article 30 of the Civil Code provides for partial limitation of legal capacity. If a person ’ s addiction to alcohol or drugs is creating serious financial difficulties for his family, he can be declared partially incapable. That means that he is unable to conclude large-scale transactions. He can, however, dispose of his salary or pension and make small transactions, under the control of his guardian.", "49. Article 135 § 1 of the Code of Civil Procedure of 2002 establishes that a civil claim lodged by a legally incapable person should be returned to him without examination.", "50. Article 281 of the same Code establishes the procedure for declaring a person incapable. A request for incapacitation of a mentally ill person can be brought before a first-instance court by a family member of the person concerned. On receipt of the request, the judge must commission a forensic psychiatric examination of the person concerned.", "51. Article 284 of the Code provides that the incapacitation request should be examined in the presence of the person concerned, the plaintiff, the prosecutor and a representative of the guardianship office ( орган опеки и попечительства ). The person whose legal capacity is being examined by the court is to be summoned to the court hearing, unless his state of health prohibits him from attending it.", "52. Article 289 of the Code provides that full legal capacity can be restored by the court at the request of the guardian, a close relative, the guardianship office or the psychiatric hospital, but not of the person declared incapable himself.", "B. Confinement to a psychiatric hospital", "53. The Psychiatric Assistance Act of 2 July 1992, as amended (“the Act ”), provides that any recourse to psychiatric aid should be voluntary. However, a person declared fully incapable may be subjected to psychiatric treatment at the request or with the consent of his official guardian ( section 4 of the Act ).", "54. Section 5 (3) of the Act provides that the rights and freedoms of persons with mental illnesses cannot be limited solely on the ground of their diagnosis, or the fact that they have been subjected to treatment in a psychiatric hospital.", "55. Under section 5 of the Act, a patient in a psychiatric hospital can have a legal representative. However, pursuant to point 2 of section 7, the interests of a person declared fully incapable are represented by his official guardian.", "56. Section 28 (3) and (4) of the Act (“Grounds for hospitalisation”) provides that a person declared incapable can be subjected to hospitalisation in a psychiatric hospital at the request of his guardian. This hospitalisation is regarded as voluntary and does not require approval by the court, as opposed to non-voluntary hospitalisation ( sections 39 and 33 of the Act ).", "57. Section 37(2) of the Act establishes the list of rights of a patient in a psychiatric hospital. In particular, the patient has the right to communicate with his lawyer without censorship. However, under section 37(3) the doctor may limit the applicant ’ s rights to correspond with other persons, have telephone conversations and meet visitors.", "58. Section 47 of the Act provides that doctors ’ actions can be appealed against before the court.", "III. RELEVANT INTERNATIONAL DOCUMENTS", "59. On 23 February 1999 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (99) 4 on principles concerning the legal protection of incapable adults. The relevant provisions read as follows.", "Principle 2 – Flexibility in legal response", "“ 1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable a suitable legal response to be made to different degrees of incapacity and various situations.", "...", "4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.", "... ”", "Principle 3 – Maximum preservation of capacity", "“ 1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.", "2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so.", "... ”", "Principle 6 – Proportionality", "“ 1. Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned.", "2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention. ”", "Principle 13 – Right to be heard in person", "“ The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity. ”", "Principle 14 – Duration, review and appeal", "“ 1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews.", "...", "3. There should be adequate rights of appeal .”", "THE LAW", "60. The Court notes that the applicant submitted several complaints under different Convention provisions. Those complaints relate to his incapacitation, placement in a psychiatric hospital, inability to obtain a review of his status, inability to meet with his lawyer, interference with his correspondence, involuntary medical treatment, and so on. The Court will examine these complaints in chronological sequence. Thus, the Court will start with the complaints related to the incapacitation proceedings – the episode which gave rise to all the subsequent events – and then examine the applicant ’ s hospitalisation and the complaints stemming from it.", "I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS REGARDS THE INCAPACITATION PROCEEDINGS", "61. The applicant complained that he had been deprived of his legal capacity as a result of proceedings which had not been “fair” within the meaning of Article 6 of the Convention. The relevant parts of Article 6 § 1 provide as follows :", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "A. The parties ’ submissions", "62. The Government contended that the proceedings before the Vasileostrovskiy District Court had been fair. Under Russian law, a request to declare a person legally incapable may be lodged by a close relative of the person suffering from a mental disorder. In the present case it was Ms Shtukaturova, the applicant ’ s mother, who had filed such a request. The court ordered a psychiatric examination of the applicant. Having examined the applicant, the doctors concluded that he was unable to understand or control his actions. Given the applicant ’ s medical condition, the court decided not to summon him to the hearing. However, in compliance with Article 284 of the Code of Civil Procedure, a prosecutor and a representative of the psychiatric hospital were present at the hearing. Therefore, the applicant ’ s procedural rights were not breached.", "63. The applicant maintained that the proceedings before the first ‑ instance court had been unfair. The judge had not explained why she changed her mind and considered that the applicant ’ s personal presence had not been necessary (see paragraphs 11 et seq. above). The court had decided on the applicant ’ s incapacity without hearing or seeing him, or obtaining any submissions from him. The court based its decision on the written medical report, which the applicant had not seen and had had no opportunity to challenge. The prosecutor who participated in the hearing on 28 December 2004 also supported the application, without having seen the applicant prior to the hearing. The Vasileostrovskiy District Court also failed to question the applicant ’ s mother, who had lodged the application for incapacity. In sum, the court failed to take even minimal measures in order to ensure an objective assessment of the applicant ’ s mental condition. Further, the applicant maintained that he was unable to challenge the judgment of 28 December 2004 because, under Russian law, he lacked standing to lodge an appeal.", "B. Admissibility", "64. The parties did not dispute the applicability of Article 6, under its “civil” head, to the proceedings in issue, and the Court does not see any reason to hold otherwise (see Winterwerp v. the Netherlands, 24 October 1979, § 73, Series A no. 33).", "65. The Court notes that the applicant ’ s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "C. Merits", "1. General principles", "66. In most of the previous cases before the Court involving “persons of unsound mind”, the domestic proceedings concerned their detention and were thus examined under Article 5 of the Convention. However, the Court has consistently held that the “procedural” guarantees under Article 5 §§ 1 and 4 are broadly similar to those under Article 6 § 1 of the Convention (see, for instance, Winterwerp, cited above, § 60; Sanchez-Reisse v. Switzerland, 21 October 1986, Series A no. 107; Kampanis v. Greece, 13 July 1995, Series A no. 318-B; and Ilijkov v. Bulgaria, no. 33977/96, § 103, 26 July 2001 ). Therefore, in deciding whether the incapacitation proceedings in the present case were “fair”, the Court will have regard, mutatis mutandis, to its case-law under Article 5 § 1 (e) and Article 5 § 4 of the Convention.", "67. The Court observes that in deciding whether an individual should be detained as a “ person of unsound mind ”, the national authorities are to be recognised as having a certain margin of appreciation. It is in the first place for the national authorities to evaluate the evidence adduced before them in a particular case; the Court ’ s task is to review under the Convention the decisions of those authorities (see Luberti v. Italy, 23 February 1984, § 27, Series A no. 75 ).", "68. In the context of Article 6 § 1 of the Convention, the Court assumes that in cases involving a mentally ill person the domestic courts should also enjoy a certain margin of appreciation. Thus, for example, they can make the relevant procedural arrangements in order to secure the proper administration of justice, protection of the health of the person concerned, and so on. However, such measures should not affect the very essence of the applicant ’ s right to a fair trial as guaranteed by Article 6 of the Convention. In assessing whether or not a particular measure, such as exclusion of the applicant from a hearing, was necessary, the Court will take into account all relevant factors (such as the nature and complexity of the issue before the domestic courts, what was at stake for the applicant, whether his appearance in person represented any threat to others or to himself, and so on ).", "2. Application to the present case", "69. It is not disputed that the applicant was unaware of the request for incapacitation made by his mother. Nothing suggests that the court notified the applicant proprio motu about the proceedings (see paragraph 10 above). Further, as follows from the report of 12 November 2004 (see paragraph 13 above), the applicant did not realise that he was being subjected to a forensic psychiatric examination. The Court concludes that the applicant was unable to participate in the proceedings before the Vasileostrovskiy District Court in any form. It remains to be ascertained whether, in the circumstances, this was compatible with Article 6 of the Convention.", "70. The Government argued that the decisions taken by the national judge had been lawful in domestic terms. However, the crux of the complaint is not the domestic legality but the “fairness” of the proceedings from the standpoint of the Convention and the Court ’ s case-law.", "71. In a number of previous cases ( concerning compulsory confinement in hospital) the Court confirmed that a person of unsound mind must be allowed to be heard either in person or, where necessary, through some form of representation – see, for example, Winterwerp, cited above, § 60. In Winterwerp, the applicant ’ s freedom was at stake. However, in the present case the outcome of the proceedings was at least equally important for the applicant: his personal autonomy in almost all areas of his life was in issue, including the eventual limitation of his liberty.", "72. Further, the Court notes that the applicant played a double role in the proceedings: he was an interested party, and, at the same time, the main object of the court ’ s examination. His participation was therefore necessary not only to enable him to present his own case, but also to allow the judge to form her personal opinion about the applicant ’ s mental capacity (see, mutatis mutandis, Kovalev v. Russia, no. 78145/01, §§ 35 -37, 10 May 2007).", "73. The applicant was indeed an individual with a history of psychiatric problems. From the materials of the case, however, it appears that despite his mental illness he had been a relatively autonomous person. In such circumstances it was indispensable for the judge to have at least a brief visual contact with the applicant, and preferably to question him. The Court concludes that the decision of the judge to decide the case on the basis of documentary evidence, without seeing or hearing the applicant, was unreasonable and in breach of the principle of adversarial proceedings enshrined in Article 6 § 1 (see Mantovanelli v. France, 18 March 1997, § 35, Reports of Judgments and Decisions 1997 - II ).", "74. The Court has examined the Government ’ s argument that a representative of the hospital and the district prosecutor attended the hearing on the merits. However, in the Court ’ s opinion, their presence did not make the proceedings truly adversarial. The representative of the hospital acted on behalf of an institution which had prepared the report and was referred to in the judgment as an “interested party”. The Government did not explain the role of the prosecutor in the proceedings. In any event, from the record of the hearing it appears that both the prosecutor and the hospital representative remained passive during the hearing, which, moreover, lasted only ten minutes.", "75. Finally, the Court observes that it must always assess the proceedings as a whole, including the decision of the appellate court (see C.G. v. the United Kingdom, no. 43373/98, § 35, 19 December 2001). The Court notes that in the present case the applicant ’ s appeal was disallowed without examination on the ground that the applicant had no legal capacity to act before the courts (see paragraph 41 above). Regardless of whether or not the rejection of his appeal without examination was acceptable under the Convention, the Court merely notes that the proceedings ended with the first - instance court judgment of 28 December 2004.", "76. The Court concludes that in the circumstances of the present case the proceedings before the Vasileostrovskiy District Court were not fair. There has accordingly been a violation of Article 6 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AS REGARDS THE INCAPACITATION OF THE APPLICANT", "77. The applicant complained that, by depriving him of his legal capacity, the authorities had breached Article 8 of the Convention. Article 8 provides :", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The parties ’ submissions", "1. The Government", "78. The Government admitted that the judgment depriving the applicant of his legal capacity entailed a number of limitations in the area of private life. However, they claimed that the applicant ’ s rights under Article 8 had not been breached. Their submissions can be summarised as follows. Firstly, the measure adopted by the court was aimed at the protection of the interests and health of other persons. Further, the decision was taken in conformity with the substantive law, namely on the basis of Article 29 of the Civil Code of the Russian Federation.", "2. The applicant", "79. The applicant insisted in his initial complaint that Article 8 had been breached in his case. He maintained that Article 29 of the Civil Code, which had served as a basis for depriving him of legal capacity, was not formulated with sufficient precision. The law permitted the deprivation of an individual ’ s legal capacity if that person “could not understand the meaning of his actions or control them”. However, the law did not explain what kind of “actions” the applicant should understand or control, or how complex these actions should be. In other words, there was no legal test to establish the severity of the reduction in cognitive capacity which called for full deprivation of legal capacity. The law was clearly deficient in this respect; it failed to protect mentally ill people from arbitrary interference with their right to private life. Therefore, the interference with his private life had not been lawful.", "80. The applicant further argued that the interference did not pursue a legitimate aim. The authorities did not seek to protect national security, public safety or the economic well-being of the country, or to prevent disorder or crime. As to the protection of the health and morals of others, there was no indication that the applicant represented a threat to the rights of third parties. Finally, with regard to the applicant himself, the Government did not suggest that the incapacitation had had a therapeutic effect on the applicant. Nor was there any evidence that the authorities had sought to deprive the applicant of his capacity because he would otherwise have carried out actions which would result in a deterioration of his health. With regard to his own pecuniary interests, the protection of a person ’ s own rights is not a ground listed in Article 8 § 2, and it cannot therefore serve as a justification for interfering with a person ’ s rights as protected under Article 8 § 1 of the Convention. In sum, the interference with his private life did not pursue any of the legitimate aims listed in Article 8 § 2 of the Convention.", "81. Finally, the applicant submitted that the interference had not been “necessary in a democratic society”, as there had been no need to restrict his legal capacity. The Vasileostrovskiy District Court did not adduce any reason for its decision: there was no indication that the applicant had had problems managing his property in the past, was unable to work, abused his employment, and so on. The medical report was not corroborated by any evidence, and the court did not assess the applicant ’ s past behaviour in any of the areas where it restricted his legal capacity.", "82. Even if the Vasileostrovskiy District Court was satisfied that the applicant could not act in a certain area of life, it could have restricted his capacity in that specific area, without going further. However, Russian law, unlike the legislation in many other European countries, did not allow a partial limitation of one ’ s legal capacity, but provided only for full incapacitation. The restricted capacity option could be used solely for those who abused drugs or alcohol. In such circumstances the court should have refused to apply a measure as drastic as full incapacitation. Instead, the court preferred to strip bluntly the applicant of all of his decision-making powers for an unlimited period of time.", "B. Admissibility", "83. The parties agreed that the judgment of 28 December 2004 amounted to an interference in the applicant ’ s private life. The Court observes that Article 8 “secure [ s ] to the individual a sphere within which he can freely pursue the development and fulfilment of his personality” (see Brüggemann and Scheuten v. Germany, no. 6959/75, Commission ’ s report of 12 July 1977, Decisions and Reports 10, p. 115, § 55). The judgment of 28 December 2004 deprived the applicant of his capacity to act independently in almost all areas of life: he was no longer able to sell or buy any property on his own, to work, to travel, to choose his place of residence, to join associations, to marry, and so on. Even his liberty could henceforth have been limited without his consent and without any judicial supervision. In sum, the Court concludes that the deprivation of legal capacity amounted to an interference with the private life of the applicant (see Matter v. Slovakia, no. 31534/96, § 68, 5 July 1999).", "84. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "C. Merits", "85. The Court reiterates that any interference with an individual ’ s right to respect for his private life will constitute a breach of Article 8 unless it was “in accordance with the law”, pursued a legitimate aim or aims under paragraph 2 and was “necessary in a democratic society” in the sense that it was proportionate to the aims sought.", "86. The Court took note of the applicant ’ s contention that the measure applied to him had not been lawful and had not pursued any legitimate aim. However, in the Court ’ s opinion it is not necessary to examine these aspects of the case, since the decision to incapacitate the applicant was in any event disproportionate to the legitimate aim invoked by the Government for the reasons set out below.", "1. General principles", "87. The applicant claimed that full incapacitation had been an inadequate response to the problems he experienced. Indeed, under Article 8 the authorities must strike a fair balance between the interests of a person of unsound mind and the other legitimate interests concerned. However, as a rule, in such a complex matter as determining somebody ’ s mental capacity, the authorities should enjoy a wide margin of appreciation. This is mostly explained by the fact that the national authorities have the benefit of direct contact with the persons concerned and are therefore particularly well placed to determine such issues. The task of the Court is rather to review under the Convention the decisions taken by the national authorities in the exercise of their powers in this respect (see, mutatis mutandis, Bronda v. Italy, 9 June 1998, § 59, Reports 1998-IV).", "88. At the same time, the margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake (see Elsholz v. Germany [GC], no. 25735/94, § 49, ECHR 2000 - VIII ). A stricter scrutiny is called for in respect of very serious limitations in the sphere of private life.", "89. Further, the Court reiterates that, whilst Article 8 of the Convention contains no explicit procedural requirements, “the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8” ( see Görgülü v. Germany, no. 74969/01, § 52, 26 February 2004). The extent of the State ’ s margin of appreciation thus depends on the quality of the decision-making process. If the procedure was seriously deficient in some respect, the conclusions of the domestic authorities are more open to criticism (see, mutatis mutandis, Sahin v. Germany, no. 30943/96, §§ 46 et seq., 11 October 2001 ).", "2. Application to the present case", "90. Firstly, the Court notes that the interference with the applicant ’ s private life was very serious. As a result of his incapacitation, the applicant became fully dependent on his official guardian in almost all areas of his life. Furthermore, “full incapacitation” was applied for an indefinite period and could not, as the applicant ’ s case shows, be challenged other than through the guardian, who herself opposed any attempts to discontinue the measure (see also paragraph 52 above ).", "91. Secondly, the Court has already found that the proceedings before the Vasileostrovskiy District Court were procedurally flawed. Thus, the applicant did not take part in the court proceedings and was not even examined by the judge in person. Further, the applicant was unable to challenge the judgment of 28 December 2004, since the St Petersburg City Court refused to examine his appeal. In sum, his participation in the decision-making process was reduced to zero. The Court is particularly struck by the fact that the only hearing on the merits in the applicant ’ s case lasted ten minutes. In such circumstances it cannot be said that the judge had “had the benefit of direct contact with the persons concerned”, which normally would call for judicial restraint on the part of this Court.", "92. Thirdly, the Court must examine the reasoning of the judgment of 28 December 2004. In doing so, the Court will have in mind the seriousness of the interference complained of, and the fact that the court proceedings in the applicant ’ s case were perfunctory at best (see above).", "93. The Court notes that the District Court relied solely on the findings of the medical report of 12 November 2004. That report referred to the applicant ’ s aggressive behaviour, negative attitudes and “antisocial” lifestyle; it concluded that the applicant suffered from schizophrenia and was thus unable to understand his actions. At the same time, the report did not explain what kind of actions the applicant was incapable of understanding and controlling. The incidence of the applicant ’ s illness is unclear, as are the possible consequences of the applicant ’ s illness for his social life, health, pecuniary interests, and so on. The report of 12 November 2004 was not sufficiently clear on these points.", "94. The Court does not cast doubt on the competence of the doctors who examined the applicant and accepts that the applicant was seriously ill. However, in the Court ’ s opinion the existence of a mental disorder, even a serious one, cannot be the sole reason to justify full incapacitation. By analogy with the cases concerning deprivation of liberty, in order to justify full incapacitation the mental disorder must be “ of a kind or degree ” warranting such a measure ( see, mutatis mutandis, Winterwerp, cited above, § 39 ). However, the questions to the doctors, as formulated by the judge, did not concern “the kind and degree” of the applicant ’ s mental illness. As a result, the report of 12 November 2004 did not analyse the degree of the applicant ’ s incapacity in sufficient detail.", "95. It appears that the existing legislative framework did not leave the judge any other choice. The Russian Civil Code distinguishes between full capacity and full incapacity, but it does not provide for any “borderline” situation other than for drug or alcohol addicts. The Court refers in this respect to the principles formulated by Recommendation No. R (99) 4 of the Committee of Ministers of the Council of Europe, cited above in paragraph 59. Although these principles have no force of law for this Court, they may define a common European standard in this area. Contrary to these principles, Russian legislation did not provide for a “tailor-made response ”. As a result, in the circumstances the applicant ’ s rights under Article 8 were restricted more than was strictly necessary.", "96. In sum, having examined the decision-making process and the reasoning behind the domestic decisions, the Court concludes that the interference with the applicant ’ s private life was disproportionate to the legitimate aim pursued. There was, therefore, a breach of Article 8 of the Convention on account of the applicant ’ s full incapacitation.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "97. Under Article 5 § 1 of the Convention the applicant complained that his placement in the psychiatric hospital had been unlawful. The relevant parts of Article 5 provide :", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(e) the lawful detention of persons ... of unsound mind ... ”", "A. The parties ’ submissions", "1. The Government", "98. The Government claimed that the applicant ’ s placement in the hospital had been lawful. Under sections 28 and 29 of the Psychiatric Assistance Act of 2 July 1992, a person can be placed in a psychiatric hospital pursuant to a court order or at the request of the doctor, provided that the person suffers from a mental disorder. The law distinguishes between non-voluntary and voluntary confinement in hospital. The latter does not require a court order and may be authorised by the official guardian, if the person is legally incapable. The applicant was placed in the hospital at the request of his official guardian in relation to a worsening of his mental condition. In such circumstances, there was no need for a court order authorising the confinement.", "99. The Government further indicated that section 47 of the Psychiatric Assistance Act provided for administrative and judicial remedies against the acts or negligence of medical personnel. However, under paragraph 2 of Article 31 of the Civil Code of the Russian Federation, if a person is legally incapable, it is his official guardian who should act in his stead before the administrative bodies or the courts. The applicant ’ s official guardian was his mother, who did not lodge any complaint. The prosecutor ’ s office, after an inquiry, concluded that the applicant ’ s rights had not been breached. Therefore, the domestic law provided effective remedies to protect the applicant ’ s rights.", "100. As to compensation for damages caused by the confinement in a psychiatric hospital, this is only recoverable if there was a fault on the part of the domestic authorities. The Government asserted that the medical personnel had acted lawfully.", "2. The applicant", "101. The applicant maintained his claims. Firstly, he alleged that his placement in hospital had amounted to a deprivation of his liberty. Thus, he was placed in a locked facility. After he attempted to flee the hospital in January 2006, he was tied to his bed and given an increased dose of sedative medication. He was not allowed to communicate with the outside world until his discharge. Finally, the applicant subjectively perceived his confinement in the hospital as a deprivation of liberty. Contrary to what the Government suggested, he had never regarded his detention as consensual and had unequivocally objected to it throughout the entire duration of his stay in the hospital.", "102. Further, the applicant claimed that his detention in the hospital was not “in accordance with a procedure prescribed by law”. Thus, under Russian law, his hospitalisation was regarded as voluntary confinement, regardless of his opinion, and, consequently, none of the procedural safeguards usually required in cases of non-voluntary hospitalisation applied to him. There should, however, be some procedural safeguards in place, especially where the person concerned clearly expressed his disagreement with his guardian ’ s decision. In the present case the authorities did not assess the applicant ’ s capacity to make an independent decision of a specific kind at the time of his hospitalisation. They relied on the applicant ’ s status as a legally incapable person, no matter how far removed in time the court decision about his global capacity might be. In the present case it was made more than ten months prior to the hospitalisation.", "103. Furthermore, Russian law did not sufficiently reflect the fact that a person ’ s capacity could change over time. There was no mandatory periodic review of the capacity status, nor was there a possibility for the person under guardianship to request such a review. Even assuming that, at the time of the initial court decision declaring him incapable, the applicant ’ s capacity was so badly impaired that he could not decide for himself the question of hospitalisation, his condition might have changed in the meantime.", "B. Admissibility", "104. The Government may be understood as claiming that the applicant ’ s hospitalisation was, in domestic terms, voluntary, and, as such, did not fall under the scenario of “deprivation of liberty” within the meaning of Article 5 of the Convention. However, the Court cannot subscribe to this thesis.", "105. It reiterates that, in order to determine whether there has been a deprivation of liberty, the starting - point must be the concrete situation of the individual concerned. Account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question (see Guzzardi v. Italy, 6 November 1980, § 92, Series A no. 39, and Ashingdane v. the United Kingdom, 28 May 1985, § 41, Series A no. 93 ).", "106. The Court further notes that the notion of deprivation of liberty within the meaning of Article 5 § 1 does not only comprise the objective element of a person ’ s confinement in a particular restricted space for a not negligible length of time. A person can only be considered to have been deprived of his or her liberty if, as an additional subjective element, he or she had not validly consented to the confinement in question (see, mutatis mutandis, H.M. v. Switzerland, no. 39187/98, § 46, ECHR 2002 - II ).", "107. The Court observes in this respect that the applicant ’ s factual situation at the hospital was largely undisputed. The applicant was confined in the hospital for several months, he was not free to leave and his contact with the outside world was seriously restricted. As to the “subjective” element, it was disputed between the parties whether the applicant had consented to his stay in the clinic. The Government mostly relied on the legal construction of “voluntary confinement”, whereas the applicant referred to his own perception of the situation.", "108. The Court notes in this respect that, indeed, the applicant lacked de jure legal capacity to decide for himself. However, this does not necessarily mean that the applicant was de facto unable to understand his situation. Firstly, the applicant ’ s own behaviour at the time of his confinement proves the contrary. Thus, on several occasions the applicant requested his discharge from hospital, contacted the hospital administration and a lawyer with a view to obtaining his release, and once attempted to escape from the hospital (see, a fortiori, Storck v. Germany, no. 61603/00, ECHR 2005-V, where the applicant consented to her stay in the clinic but then attempted to escape). Secondly, it follows from the Court ’ s above conclusions that the findings of the domestic courts on the applicant ’ s mental condition were questionable and quite remote in time (see paragraph 96 above).", "109. In sum, even though the applicant was legally incapable of expressing his opinion, the Court is unable to accept in the circumstances the Government ’ s view that the applicant agreed to his continued stay in the hospital. The Court therefore concludes that the applicant was deprived of his liberty by the authorities within the meaning of Article 5 § 1 of the Convention.", "110. The Court further notes that although the applicant ’ s detention was requested by the applicant ’ s guardian, a private person, it was implemented by a State-run institution – a psychiatric hospital. Therefore, the responsibility of the authorities for the situation complained of was engaged.", "111. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "C. Merits", "112. The Court accepts that the applicant ’ s detention was “lawful”, if this term is construed narrowly, in the sense of formal compatibility of the detention with the procedural and material requirements of the domestic law. It appears that the only condition for the applicant ’ s detention was the consent of his official guardian, his mother, who was also the person who solicited the applicant ’ s placement in the hospital.", "113. However, the Court observes that the notion of “lawfulness” in the context of Article 5 § 1 (e) also has a broader meaning. “ The notion underlying the term [ ‘ procedure prescribed by law ’ ] ... is one of fair and proper procedure, namely that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary” ( see Winterwerp, cited above, § 45). In other words, the detention cannot be considered “lawful” within the meaning of Article 5 § 1 if the domestic procedure does not provide sufficient guarantees against arbitrariness.", "114. In its Winterwerp judgment (cited above), the Court set out three minimum conditions which have to be satisfied in order for there to be “ the lawful detention of a person of unsound mind ” within the meaning of Article 5 § 1 (e): except in emergency cases, the individual concerned must be reliably shown to be of unsound mind, that is to say, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder.", "115. Turning to the present case, the Court notes that it was submitted on behalf of the applicant that his deprivation of liberty had been arbitrary, because he had not been reliably shown to be of unsound mind at the time of his confinement. The Government submitted nothing to refute this argument. Thus, the Government did not explain what made the applicant ’ s mother request his hospitalisation on 4 November 2005. Further, the Government did not provide the Court with any medical evidence concerning the applicant ’ s mental condition at the moment of his admission to the hospital. It appears that the decision to hospitalise him relied merely on the applicant ’ s legal status, as had been defined ten months earlier by the court, and probably on his medical history. Indeed, it is inconceivable that the applicant remained in hospital without any examination by specialist doctors. However, in the absence of any supporting documents or submissions by the Government concerning the applicant ’ s mental condition during his placement, the Court has to conclude that it has not been “reliably shown” by the Government that the applicant ’ s mental condition necessitated his confinement.", "116. In view of the above, the Court concludes that the applicant ’ s hospitalisation between 4 November 200 5 and 16 May 2006 was not “lawful” within the meaning of Article 5 § 1 (e) of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION", "117. The applicant complains that he was unable to obtain his release from the hospital. Article 5 § 4, relied on by the applicant, provides :", "“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”", "A. The parties ’ submissions", "118. The Government maintained that the applicant had had an effective remedy to challenge his admission to the psychiatric hospital. Thus, he could have applied for release or complained about the actions of the medical staff through his guardian, who represented him before third parties, including the court. Further, the General Prosecutor ’ s Office had carried out a check of the applicant ’ s situation and did not establish any violation of his rights.", "119. The applicant claimed that Russian law allowed him to bring court proceedings only through his guardian, who was opposed to his release.", "B. Admissibility", "120. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "C. Merits", "121. The Court observes that by virtue of Article 5 § 4, a person of unsound mind compulsorily confined in a psychiatric institution for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings at reasonable intervals before a court to put in issue the “ lawfulness ” – within the meaning of the Convention – of his detention (see Winterwerp, cited above, § 55, and Luberti, cited above, § 31; see also Rakevich v. Russia, no. 5 8973/00, §§ 43 et seq., 28 October 2003 ).", "122. This is so in cases where the initial detention was initially authorised by a judicial authority (see X v. the United Kingdom, 5 November 1981, § 52, Series A no. 46 ), and it is a fortiori true in the circumstances of the present case, where the applicant ’ s confinement was authorised not by a court but by a private person, namely the applicant ’ s guardian.", "123. The Court accepts that the forms of judicial review may vary from one domain to another, and depend on the type of deprivation of liberty in issue. It is not within the province of the Court to inquire into what would be the best or most appropriate system of judicial review in this sphere. However, in the present case the courts were not involved in deciding on the applicant ’ s detention at any moment and in any form. It appears that Russian law does not provide for automatic judicial review of confinement in a psychiatric hospital in situations such as the applicant ’ s. Further, the review cannot be initiated by the person concerned if that person has been deprived of his or her legal capacity. Such a reading of Russian law follows from the Government ’ s submissions on the matter. In sum, the applicant was prevented from pursuing independently any legal remedy of judicial character to challenge his continued detention.", "124. The Government claimed that the applicant could have initiated legal proceedings through his mother. However, that remedy was not directly accessible to him: the applicant fully depended on his mother who had requested his placement in hospital and opposed his release. As to the inquiry carried out by the prosecution authorities, it is unclear whether it concerned the “lawfulness” of the applicant ’ s detention. In any event, a prosecution inquiry as such cannot be regarded as a judicial review satisfying the requirements of Article 5 § 4 of the Convention.", "125. The Court notes its findings that the applicant ’ s hospitalisation was not voluntary. Further, the last time that the courts had assessed the applicant ’ s mental capacity was ten months before his admission to hospital. The “incapacitation” court proceedings were seriously flawed, and, in any event, the court never examined the necessity of the applicant ’ s placement in a closed institution. Nor was this necessity assessed by a court at the time of his placement in hospital. In such circumstances the applicant ’ s inability to obtain judicial review of his detention amounted to a violation of Article 5 § 4 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "126. The applicant submitted that the compulsory medical treatment he received in hospital amounted to inhuman and degrading treatment. Furthermore, on one occasion physical restraint was used against him, when he was tied to his bed for more than fifteen hours. Article 3 of the Convention, referred to by the applicant in this respect, provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "127. The Court notes that the complaint under Article 3 relates to two distinct facts: (a) involuntary medical treatment; and (b) the securing of the applicant to his bed after his attempted escape. As regards the second allegation, the Court notes that it was not part of the applicant ’ s initial submissions to the Court and was not sufficiently substantiated. Reference to it appeared only in the applicant ’ s observations in reply to those of the Government. Therefore, this incident falls outside the scope of the present application, and, as such, will not be examined by the Court.", "128. It remains to be ascertained, however, whether the medical treatment of the applicant in the hospital amounted to “inhuman and degrading treatment” within the meaning of Article 3. According to the applicant, he was treated with Haloperidol and Chlorpromazine. He described these substances as obsolete medicine with strong and unpleasant side effects. The Court notes that the applicant did not provide any evidence showing that he had actually been treated with this medication. Furthermore, there is no evidence that the medication in question had the unpleasant effects he was complaining of. The applicant does not claim that his health has deteriorated as a result of such treatment. In such circumstances the Court finds that the applicant ’ s allegations in this respect are unsubstantiated.", "129. The Court concludes that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "130. The applicant complained under Article 13 of the Convention, taken in conjunction with Articles 6 and 8, that he had been unable to obtain a review of his status as a legally incapable person. Article 13 provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "131. The Court finds that this complaint is linked to the complaints submitted under Articles 6 and 8 of the Convention, and it should therefore be declared admissible.", "132. The Court further notes that, in analysing the proportionality of the measure complained of under Article 8, it took account of the fact that the measure was imposed for an indefinite period of time and could not be challenged by the applicant independently of his mother or other persons empowered by law to seek its withdrawal (see paragraph 90 above). Furthermore, this aspect of the proceedings was considered by the Court in its examination of the overall fairness of the incapacitation proceedings.", "133. In these circumstances the Court does not consider it necessary to re-examine this aspect of the case separately through the prism of the “effective remedies” requirement of Article 13.", "VII. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "134. The Court notes that under Article 14 of the Convention the applicant complained about his alleged discrimination. The Court finds that this complaint is linked to the complaints submitted under Articles 6 and 8 of the Convention, and it should therefore be declared admissible. However, in the circumstances and given its findings under Articles 5, 6 and 8 of the Convention, the Court considers that there is no need to examine the complaint under Article 14 of the Convention separately.", "VIII. COMPLIANCE WITH ARTICLE 34 OF THE CONVENTION", "135. The applicant maintained that by preventing him from meeting his lawyer in private for a long period of time despite the measure indicated by the Court under Rule 39 of the Rules of Court, Russia had failed to comply with its obligations under Article 34 of the Convention. Article 34 provides:", "“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”", "Rule 39 of the Rules of Court provides:", "“1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.", "2. Notice of these measures shall be given to the Committee of Ministers.", "3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.”", "A. The parties ’ submissions", "136. The Government maintained that the applicant had not been prevented from exercising his right of individual petition under Article 34 of the Convention. However, he was able to do so only through his mother – his official guardian. Since his mother had never asked Mr Bartenev (the lawyer) to represent her son, he was not his legal representative in the eyes of the domestic authorities. Consequently, the authorities acted lawfully in not allowing him to meet the applicant in hospital.", "137. The applicant submitted that his right of individual petition had been breached. Thus, the hospital authorities prevented him from meeting his lawyer, confiscated writing materials from him and prohibited him from making or receiving telephone calls. The applicant was also threatened with the extension of his confinement if he continued his “litigious behaviour”. When the Court indicated an interim measure, the hospital authorities refused to consider the decision of the Court under Rule 39 as legally binding. This position was later confirmed by the Russian courts. As a result, it was virtually impossible for the applicant to work on his case before the European Court during his whole stay in hospital. Moreover, the applicant ’ s lawyer was unable to assess the applicant ’ s condition and collect information about the treatment the applicant was subjected to while in the psychiatric hospital.", "B. The Court ’ s assessment", "1. Compliance with Article 34 before the indication of an interim measure", "138. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see Akdivar and Others v. Turkey, 16 September 1996, opinion of the Commission, § 105, Reports 1996 - IV; see also Ergi v. Turkey, 28 July 1998, § 105, Reports 1998-IV ).", "139. The Court notes that an interference with the right of individual petition may take different forms. Thus, in Boicenco v. Moldova (no. 41088/05, § § 157 et seq., 11 July 2006), the Court found that the refusal by the authorities to let the applicant be examined by a doctor in order to substantiate his claims under Article 41 of the Convention constituted an interference with the applicant ’ s right of individual petition, and thus was incompatible with Article 34 of the Convention.", "140. In the present case the ban on contact with his lawyer lasted from the applicant ’ s hospitalisation on 4 November 2005 until his discharge on 16 May 2006. Further, telephone calls and correspondence were also banned for virtually the whole period. Those restrictions made it almost impossible for the applicant to pursue his case before the Court, and thus the application form was completed by the applicant only after his discharge from the hospital. The authorities could not have been ignorant of the fact that the applicant had introduced an application with the Court concerning, inter alia, his confinement in the hospital. In such circumstances the authorities, by restricting the applicant ’ s contact with the outside world to such an extent, interfered with his rights under Article 34 of the Convention.", "2. Compliance with Article 34 after the indication of an interim measure", "141. The Court further notes that in March 2006 it indicated to the Government an interim measure under Rule 39. The Court requested the Government to allow the applicant to meet his lawyer on the premises of the hospital and under the supervision of the hospital staff. That measure was supposed to ensure that the applicant was able to pursue his case before this Court.", "142. The Court is struck by the authorities ’ refusal to comply with that measure. The domestic courts which examined the situation found that the interim measure was addressed to the Russian State as a whole, but not to any of its bodies in particular. The courts concluded that Russian law did not recognise the binding force of an interim measure indicated by the Court. Further, they considered that the applicant could not act without the consent of his mother. Therefore, Mr Bartenev (the lawyer) was not regarded as his lawful representative either in domestic terms, or for the purposes of the proceedings before this Court.", "143. Such an interpretation of the Convention is contrary to the Convention. As regards the status of Mr Bartenev, it was not for the domestic courts to determine whether or not he was the applicant ’ s representative for the purposes of the proceedings before the Court – it sufficed that the Court regarded him as such.", "144. As to the legal force of an interim measure, the Court wishes to reiterate the following ( Aoulmi v. France, no. 50278/99, § 107, ECHR 2006 ‑ I ) :", "“ 107. ... [ U ] nder the Convention system, interim measures, as they have consistently been applied in practice, play a vital role in avoiding irreversible situations that would prevent the Court from properly examining the application and, where appropriate, securing to the applicant the practical and effective benefit of the Convention rights asserted. Accordingly, in these conditions a failure by a respondent State to comply with interim measures will undermine the effectiveness of the right of individual application guaranteed by Article 34 and the State ’ s formal undertaking in Article 1 to protect the rights and freedoms set forth in the Convention", "108. Indications of interim measures given by the Court ... permit it not only to carry out an effective examination of the application but also to ensure that the protection afforded to the applicant by the Convention is effective; such indications also subsequently allow the Committee of Ministers to supervise execution of the final judgment. Such measures thus enable the State concerned to discharge its obligation to comply with the final judgment of the Court, which is legally binding by virtue of Article 46 of the Convention ... ”", "In sum, an interim measure is binding to the extent that non-compliance with it may lead to a finding of a violation under Article 34 of the Convention. For the Court, it makes no difference whether it was the State as a whole or any of its bodies which refused to implement an interim measure.", "145. The Court notes in this respect the case of Mamatkulov and Askarov v. Turkey ([GC], nos. 46827/99 and 46951/99, § § 92 et seq., ECHR 2005 ‑ I ), in which the Court analysed the State ’ s non-compliance with an interim measure indicated under Rule 39. The Court concluded that “the obligation set out in Article 34 in fine requires the Contracting States to refrain ... also from any act or omission which, by destroying or removing the subject matter of an application, would make it pointless or otherwise prevent the Court from considering it under its normal procedure” (§ 102).", "146. By not allowing the applicant to communicate with his lawyer, the authorities de facto prevented him from complaining to the Court and this obstacle existed so long as the authorities kept the applicant in hospital. Therefore, the aim of the interim measure indicated by the Court was to avoid a situation “ that would prevent the Court from properly examining the application and, where appropriate, securing to the applicant the practical and effective benefit of the Convention rights asserted” (see Aoulmi, loc. cit. ).", "147. The Court notes that the applicant was eventually released and met with his lawyer, and was thus able to continue the proceedings before this Court. The Court therefore finally had all the elements to examine the applicant ’ s complaint, despite previous non-compliance with the interim measure. However, the fact that the individual actually managed to pursue his application does not prevent an issue arising under Article 34: should the Government ’ s action make it more difficult for the individual to exercise his right of petition, this amounts to “hindering” his rights under Article 34 ( see Akdivar and Others, cited above, § 105, and Akdivar and Others v. Turkey, 16 September 1996, opinion of the Commission, § 254, Reports 1996-IV ). In any event, the applicant ’ s release was not in any way connected with the implementation of an interim measure.", "148. The Court takes note that the Russian legal system may have lacked a legal mechanism for implementing interim measures under Rule 39. However, it does not absolve the respondent State from its obligations under Article 34 of the Convention. In sum, in the circumstances the failure of the authorities to comply with an interim measure under Rule 39 amounted to a breach of Article 34 of the Convention.", "3. Conclusion", "149. Having regard to the material before it, the Court concludes that, by preventing the applicant for a long period of time from meeting his lawyer and communicating with him, as well as by failing to comply with the interim measure indicated under Rule 39 of the Rules of Court, the Russian Federation was in breach of its obligations under Article 34 of the Convention.", "IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "150. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "151. The applicant claimed 85,000 euros in respect of non ‑ pecuniary damage.", "152. The Government considered these claims “ fully unsubstantiated and anyway excessive ”. Further, the Government claimed that it was the applicant ’ s mother who was entitled to claim any amounts on behalf of the applicant.", "153. The Court notes that the applicant has legal standing in his own right within the Strasbourg proceedings and, consequently, can claim compensation under Article 41 of the Convention.", "154. The Court considers that the question of the application of Article 41 is not ready for decision. Accordingly, it shall be reserved and the subsequent procedure fixed having regard to any agreement which might be reached between the Government and the applicant (Rule 75 § 1 of the Rules of Court)." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. The first applicant (“R.P.”), the second applicant (“A.P.”), the third applicant (“M.P.”) and the fourth applicant (“B.P.”) were born in 1985, 1982, 1950 and 1941 respectively. All four applicants are British citizens who currently live in Nottingham, England.", "6. A.P., M.P. and B.P. are, respectively, R.P.’s brother, mother and father.", "7. On 7 May 2006 R.P.’s daughter (“K.P.”) was born prematurely at 27 weeks’ gestation. The birth was unexpected as R.P. had not known that she was pregnant. R.P. was not in a relationship with K.P.’s father and he played no further part in the proceedings.", "8. As a consequence of her premature birth, K.P. suffered from many serious medical conditions. She had serious chronic lung disease (broncho-pulmonary dysplasia), which rendered her oxygen-dependent, she had bleeding on both sides of her brain (bilateral intraventricular haemorrhage), she was immuno-suppressed and therefore very susceptible to infection, and she had a congenital heart defect which was repaired by surgery on 6 June 2006. Although her health improved as she developed, she continued to require skilled and labour-intensive day-to-day care. She was regarded as at high risk of cot death and initially required feeding through a nasal-gastric tube.", "9. It was observed that from K.P.’s birth until 22 August 2006 R.P. was only visiting K.P. for 1-2 hours a day. She had to be prompted to visit for longer periods and it was noted that she could not complete basic care tasks without prompting and support. A multi-agency meeting took place on 22 August 2006, at which the hospital drew up a schedule of tasks which R.P. would need to demonstrate she could satisfactorily complete before K.P. could safely be discharged into her care. A “core assessment” prepared at this time recorded that R.P. had previously been involved with the local authority’s mental health services and was believed to have learning disabilities; that her relationship with A.P., M.P. and B.P. fluctuated, with allegations having been made of violence and aggression; that there were concerns about her relationship with K.P.’s father; and that M.P. and B.P. were unsuitable to care for K.P. because of poor household conditions and concerns about family dynamics.", "10. On 30 August 2006 a social worker met with R.P., M.P. and B.P. to discuss the local authority’s concerns as to the care of K.P. It was noted that R.P. had difficulty understanding and articulating the nature and extent of K.P.’s health needs and refused to accept that she needed help to care properly for her. However, she did agree to participate in a Parenting Assessment Manual (“PAM”) Assessment, which was a tool designed to assess parents with learning disabilities. The assessment, which was completed on 1 September 2006, concluded that R.P. struggled to complete care tasks for R.P. and demonstrated little understanding of her care needs.", "11. On 8 September 2006 care proceedings were commenced in relation to K.P. At this stage the aim of the care plan was to identify how the local authority could keep K.P. alive and safe in a home environment while R.P. was given the opportunity to develop her care skills. On 15 September 2006 an interim care order was made in favour of the local authority and on 23 November 2006 K.P. was discharged from hospital into the care of foster parents.", "12. R.P. instructed a solicitor (“S.C.”) to represent her in the care proceedings. Both S.C. and her very experienced counsel developed serious concerns that R.P. was unable to understand the advice she was being given. Pursuant to a court order, S.C. and the local authority jointly instructed a consultant clinical psychologist (“H.J.”) to assess R.P. Prior to being assessed, attendance notes from both the counsel and S.C. indicate that they informed R.P. that the purpose of the assessment was to determine whether or not she had capacity to provide instruction and, if she did not, the Official Solicitor would have to be appointed to act on her behalf.", "13. In her report H.J. found that R.P. had a significant learning disability and concluded:", "“Because of the difficulties [RP] has in understanding, processing and recalling information, I believe that she will find it very difficult to understand the advice given by her solicitor. She will not be able to make informed decisions on the basis of this advice, particularly when this involved anticipating possible outcomes. It would be appropriate for the Official Solicitor to become involved.”", "14. On 26 October 2006 S.C. wrote to the Official Solicitor to advise him of the contents of H.J.’s report. On 31 October 2006 the Official Solicitor indicated that he would consent to act on behalf of R.P. if invited to do so. On 7 November 2006 Nottingham County Court invited the Official Solicitor to act for R.P. and he formally consented to act as her guardian ad litem on 11 December 2006. In accordance with his usual practice, a case worker (“LM”) wrote to S.C. to confirm that she was to be instructed by the Official Solicitor on behalf of R.P. She enclosed with the letter a further letter and leaflet to be given to R.P. The letter stated that:", "“You may already know that on 7 November 2006 the Official Solicitor was asked to act as your guardian ad litem. This means that he will instruct your solicitor for you. He can only do this if a doctor or the court has decided that you cannot do so yourself. In your case, HJ completed a report dated 23 October 2006 which shows that you have a learning disability. If your condition improves and HJ or another doctor says that you can manage on your own, the Official Solicitor will of course step down and no longer act for you.", "Your solicitor will keep in touch with you, let you know what is happening and tell the Official Solicitor how you feel about things...", "The Official Solicitor will consider the evidence of all the people involved as well as your wishes and views before he files a statement at court on your behalf. He will do his best to protect your interests but must, of course, bear in mind what is best for KP.", "If you are not happy with the way in which your case is conducted you should first discuss the matter with your solicitor or with me. If you are still not satisfied you can write to the complaints officer...”", "15. The content of the leaflet given to R.P. is set out in full below:", "“ The Official Solicitor", "Who he is, and what he does.", "WHO IS THE OFFICIAL SOLICITOR?", "Alistair Pitblado is the Official Solicitor to the Supreme Court. It is his job to make decisions on behalf of people who are unable to represent themselves in Civil and Family Proceedings (the client).", "WHY THE OFFICIAL SOLICITOR ACTS IN A CASE", "The Official Solicitor agrees to act either because the client is under the age of 18, or because the client’s doctor does not think that they can cope with making decisions about their court case. Legal matters can be difficult to understand and very stressful and the Official Solicitor is here to protect the client’s interests.", "HOW WILL THE OFFICIAL SOLICITOR HELP?", "The Official Solicitor makes decisions about the court case such as whether to bring, defend or settle a claim. We will arrange legal representation in court for the client where he considers this necessary. He will usually ask a firm of solicitors to help him with the case. The Official Solicitor can only make decisions about the questions arising in the court case. He cannot make any other decisions for the client.", "WHO CAN I SPEAK TO ABOUT THIS CASE?", "Your solicitor should be the primary contact. The Official Solicitor has assistants who help him deal with every case. These assistants are called case managers. The case manager assigned to your case will provide you with details of the solicitors they have appointed on your behalf.", "WILL THE CLIENT BE CONSULTED?", "Shortly after he agrees to act the Official Solicitor will usually instruct a firm of solicitors as his solicitors, either the solicitors already instructed by the client or new solicitors identified by the case manager. Such solicitors, or a senior solicitor within the firm, should be a member of the Law Society Children Panel or the Resolution (formerly SFLA) Family Panel. The instructed solicitor will communicate with the client and attend court hearings and will report on the outcome to the case manager.", "Fees and Charges", "In the vast majority of cases, the Official Solicitor acts in the capacity of Litigation/Next Friend and instructs outside solicitors. The Official Solicitor does not make any charge for acting in the capacity of Litigation/Next Friend. Where the legal work in a case is conducted in-house, the Official Solicitor will, where appropriate, seek to recover his costs (or in medical cases there is a practice whereby he is entitled to half his costs) using an hourly charging rate. We will write to you separately with further details if this applies in your case." ]

[ "COMPLAINTS", "If you are dissatisfied with the way your case is conducted you should first discuss the matter either with the external solicitor, or with your case manager. If you remain dissatisfied you may write to the Complaints Officer, Official Solicitor’s Office, 81 Chancery Lane WC2A 1DD.”", "16. On 19 December 2006 Nottingham County Court directed that H.J. be instructed to prepare a second report considering the propriety of the teaching methods envisaged by the local authority in its parenting assessment. H.J.’s second report, dated 2 March 2007, noted that the teaching methods and materials would “in general be appropriate” and emphasised that simple language, direct instructions and repetition would be needed, along with immediate feedback.", "17. On 2 March 2007 a parenting capacity assessment was produced in respect of R.P. The report noted that R.P. had demonstrated commitment to the assessment process and an ability to retain and carry out basic tasks. However, social workers were concerned that R.P. had expressed views of a racist nature, that she sometimes seemed immature and attention-seeking, that she was overly preoccupied with her own health concerns, and that she spoke very negatively about the local authority’s professionals.", "18. Reports from R.P.’s contact sessions with K.P. indicated that R.P. showed some signs of improvement, demonstrating some ability to remember what she had been shown and to repeat tasks. However, even after months of regular contact and support R.P. still, on occasion, needed reminding about and prompting to perform basic tasks, especially when something unexpected happened. They also indicated that R.P. occasionally demonstrated a failure to put K.P.’s needs before her own and a lack of awareness of K.P.’s current and future needs. Her attitude towards social workers was also noted to be aggressive, uncooperative and occasionally violent. Consequently, there were concerns about R.P.’s ability and willingness to work with local authority professionals and put K.P.’s needs first. This was of particular concern in light of K.P.’s need for high levels of support.", "19. In May 2007 H.J. was asked to produce a third report. The report, dated 2 June 2007, primarily concerned the risks posed by R.P. to K.P. and R.P.’s ability to care for K.P. H.J. was also asked to comment on R.P.’s litigation capacity. She noted:", "“1.1 As I have indicated previously RP has a significant learning disability, and she will always need a high level of support in caring for KP", ". If she were not receiving this support she would pose a high level of risk to KP’s well-being, which is not due to any desire on her part to hurt KP, but to her limitations, which are too extensive to allow her to parent KP successfully on her own.", "1.2 If she were receiving a high level of support this risk could be reduced. The level of support which would be needed for this to happen would be for another competent adult to be present at all times, to prompt and assist RP in her care for KP. Essentially this means that RP would need to be living with a partner or family member who could appropriately provide this level of support.", "... ... ...", "2.3 Having read all the work which has been done with RP and having carefully considered my assessment of her, it is my view that there is no further work which could be undertaken with RP which would increase her ability to care for KP in any significant way.", "... ... ...", "7.1 As I indicated earlier RP could only care for KP if she had a high level of support. I cannot perceive anything in her circumstances which suggests to me that such a support network is available, and without this no progress can be made towards rehabilitation.", "... ... ...", "8.1 RP would need 24 hour support, and within this it would be realistic to expect her to assist with KP’s care but not take sole responsibility for this. This would continue to be the case throughout KP’s childhood. If this could be achieved in a natural environment, such as a family, then it might be suitable as a long term prospect, as long as KP had a consistent identified care giver within that arrangement.", "... ... ...", "9.1 RP does not have the capacity to give informed consent to a placement order. She cannot really understand the proceedings except at a very basic level.”", "20. On 11 July 2007 the local authority completed a further core assessment. The conclusion was that:", "“The opinion of all the agencies involved with KP’s care in a position to make an informed decision regarding RP’s ability to parent KP is clear. Without a very high level of continuous support and supervision, RP does not have the skills to enable her to successfully parent KP. RP has consistently demonstrated by her behaviour that she does not wish to work in partnership with the agencies who will continue to be involved in KP’s care throughout her childhood. Therefore, we need to look for alternative permanent carers. Maternal grandparents have put themselves forward to be assessed and this is in the process of being conducted. However, the local authority have a number of concerns in respect of their living conditions, RP’s upbringing and the influence that RP still has upon them and how this would impact upon KP if she were to be placed in their care. Although the local authority do not wish to pre-empt the outcome of the initial sessions with the maternal grandparents, there are a number of concerns regarding their interaction and relationship with RP and their own parenting skills. The local authority at this time believe it is in KP’s best interest to be placed for adoption and the matter will come before the adoption panel on 19 July 2007. The local authority will urgently review this if the outcome of the maternal grandparents’ assessment proves positive”.", "21. The local authority filed its final care plan on 12 July 2007. That care plan recommended adoption outside the family and it issued proceedings seeking a placement order under section 21 of the Children’s Act 2002. The Official Solicitor consented to act on behalf of R.P. in the placement proceedings as well as in the care proceedings. The application for a placement order was then consolidated with the care proceedings and listed for hearing before a judge.", "22. On 6 August 2007 the local authority filed a kinship assessment of M.P. and B.P. The report indicated that there had been referrals to the local authority concerning M.P.’s and B.P.’s care of R.P. and A.P. It further noted that M.P. and B.P. were unable to control R.P. or manage her behaviour and that they had also intermittently displayed hostility and suspicion towards the local authority. In view of these facts, the local authority concluded that it could not support the maternal grandparents as carers for K.P. On 24 August 2007 a further kinship assessment was filed in respect of A.P. The local authority considered that he was unlikely to have the capacity fully to understand or to meet K.P.’s welfare needs and therefore could not support him as a carer.", "23. In a statement to the court dated 17 August 2007, the Official Solicitor indicated that R.P. was not in a position to consent or refuse her consent to the placement order and as her litigation friend he was unable to oppose the making of the care order or the placement order. However, he also indicated R.P.’s opposition to the orders sought by the local authority, her belief that K.P. should be returned to her care or the care of her family, and her belief that the local authority had not given her a chance to acquire the skills necessary to care for K.P.", "24. In a pre-hearing review R.P. agreed with S.C. and counsel that she would not give oral evidence at the hearing but that her wishes would be conveyed to the court by counsel.", "25. The hearing took place on 29 August 2007. R.P. was represented throughout by experienced counsel and her views were made known to the court. At the conclusion of the hearing, the judge made a care order, dispensed with R.P.’s consent to the placement order and made a placement order.", "26. R.P. applied for permission to appeal to the Court of Appeal and also made an application in the County Court to revoke the placement order. The County Court proceedings were adjourned pending the outcome of the proceedings before the Court of Appeal, which took place in March 2008.", "27. The Official Solicitor was notified of the appeal proceedings. He wrote to R.P., informing her of the possibility of free legal representation through the Bar Pro Bono Unit (“the Unit”). When R.P. did not pursue this, the Official Solicitor arranged for the Unit to consider her case. Specialist counsel was appointed and made available to represent R.P. at the hearing. Although R.P. declined his services, he attended the hearing in case R.P. changed her mind. She did not change her mind and instead was assisted in the proceedings by A.P. and Mr John Hemming MP, who acted as her McKenzie friends.", "28. In a statement to the Court of Appeal in advance of the hearing, the Official Solicitor set out his standard working practice. He indicated that:", "“If there is a conflict in the evidence relating to an adult party’s capacity to conduct the proceedings then I will not accept appointment unless or until that conflict is resolved either by the experts arriving at a consensus, or by determination of the court. I will return to this issue below.", "... ... ...", "The solicitor, however, remains the primary point of contact for the protected party. My case worker relies on the solicitor to ensure the protected party is involved, so far as is possible, and is informed about the progression of the proceedings, and for communication of the protected party’s ascertainable views, wishes and feelings with regard to the matters at issue. Whilst the solicitor may not take instructions from the protected party I regard the maintenance of personal contact between the solicitor and the protected party during the case as important, to ensure that proper information is provided and to afford the protected party the opportunity to express any concerns about issues raised, or information provided in the proceedings. I expect any concerns raised to be properly considered and communicated to my case worker. My case worker will consider the protected party’s views and wishes on all relevant points but where those views and wishes run contrary to the legal advice received as to the management and progression of the case, it is unlikely that I will prefer the protected party’s views over that advice, as it would not be in the protected party’s interests that I do so.", "... ... ...", "I am not necessarily involved in the investigation of capacity unless specifically directed to investigate by the court (although my staff are available to offer guidance with regard to the relevant test, if so requested). The evidence as to lack of litigation capacity may therefore be in the form of a medical or psychological report or by way of a report in the form of my standard certificate. The evidence is generally from either a psychiatrist or (in the case of learning disability or acquired brain injury) from a psychologist. In a small number of cases it will be from a general practitioner. In a minority of cases it may be from another clinical specialist such as a neurologist or geriatrician. In the alternative the court may have made a determination, on the existing evidence, that the person concerned is a ‘protected party’ within the meaning of the rules.", "If the evidence on capacity to conduct the proceedings is ambiguous, or conflicting, then the Divisional Manager will request further clarification from the person who has conducted the assessment, or refer back to the court for a determination of the capacity issue.", "If during the course of the case the solicitor advises the case worker that the protected party may have recovered capacity, the standard instructions provide that the solicitor must obtain further evidence on this point.", "If there is evidence that the protected party has recovered capacity, then I will make an application to the court for my discharge. It is of course always open to the protected party at any time during my appointment to apply for my discharge, if of the view that the evidence as to capacity is open to challenge. Similarly if a person comes forward as willing to act in substitution for myself, then an application may be made to substitute for me as litigation friend. My discharge or substitution as litigation friend is for the court to decide.", "If my case worker is informed that the protected party asserts his or her own capacity to conduct the proceedings and disputes the existing evidence, then the protected party would be invited to agree to undergo further assessment - for example, through referral to his or her general practitioner or other NHS referral. If the protected party refuses to undergo further assessment or seek further evidence, I have, of course, no power to compel this.", "29. At the hearing R.P. claimed that there had been a violation of her rights under Article 6 § 1 of the Convention because, inter alia, she had not been informed that the Official Solicitor would be representing her until after the hearing; the involvement of the Official Solicitor was unlawful as she had the capacity to instruct her own solicitor; the clinical psychologist had failed to apply the correct test in assessing capacity, namely the test identified in the Court of Appeal decision of Masterman-Lister ( Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889; Masterman-Lister v Jewell and another [2003] EWCA Civ 70); and finally, if she lacked capacity, a family member should have been appointed as her litigation friend.", "30. In a judgment dated 8 May 2008, the court found that R.P. was fully informed of the involvement of the Official Solicitor and the nature of his role; the clinical psychologist correctly assessed R.P.’s capacity by reference to the Masterman-Lister test, and R.P.’s family members would not have been suitable litigation friends as they had also put themselves forward as carers for K.P. With regard to the merits of R.P.’s case, the court found that the local authority had done what it could to facilitate the return of K.P. to R.P.’s care and had not simply dismissed this possibility out of hand. The available evidence indicated, however, that R.P.’s significant learning disability prevented her from acquiring the necessary skills to provide K.P. with the care that she needed and this was exacerbated by her increasing unwillingness to co-operate with social workers. The court therefore concluded that the Official Solicitor was right to concede that the care and placement orders were in K.P.’s best interests and the judge was right to make the orders. Accordingly, it held that there had been no violation of R.P.’s rights under Article 6 § 1 of the Convention.", "31. R.P. applied for leave to appeal to the House of Lords but leave was refused on 22 July 2008.", "32. While the Court of Appeal proceedings were ongoing, R.P. issued an application for leave to apply to revoke the contact order. The application was refused on 7 August 2008 and on 22 October 2008 she was refused leave to appeal to the Court of Appeal.", "33. On 19 August 2008 R.P. issued an application for more frequent contact with K.P. On receiving notice of the application, the Official Solicitor wrote to the court to say that the question of R.P.’s capacity needed to be decided in the context of the contact application. At a hearing on 27 January 2009, an expert report was produced which indicated that R.P. had capacity in relation to the contact proceedings. However, on 15 May 2009 the application for contact orders was refused and R.P. was refused leave to appeal. In addition, a further application for leave to revoke the placement order was refused and the court ordered that in future R.P. could only apply for leave to revoke the placement order if she could put forward a change of circumstances since the date of the decision.", "34. On 23 June 2009 R.P. applied for permission to appeal the refusal to grant her leave to apply to revoke the placement order. Permission was refused on 8 October 2009. On 24 June 2009 she issued an application for permission to proceed with a claim for judicial review, pleading that the local authority was acting unlawfully and unreasonably by proceeding with plans for the adoption of K.P. whilst proceedings were pending before the European Court of Human Rights. Permission was refused on 12 August 2009. On 7 December 2009 R.P. made a further claim for judicial review in respect of the adoption plan but permission was refused on 14 January 2011.", "35. R.P. subsequently made a further application for leave to apply to discharge the placement order. On 10 February 2010 the application for leave was refused and R.P. was refused permission to appeal. In the context of those proceedings, the judge noted that “the mother has a sufficient grasp of what she wants to achieve to put forward her case with assistance so that imposing upon her a litigation friend would be quite inappropriate”.", "36. On 1 March 2010 K.P. was placed with prospective adopters, who submitted an application for an adoption order in November 2010. An adoption order was granted by the County Court on 14 April 2011 and R.P.’s request for leave to appeal was refused by the High Court. R.P. has subsequently lodged an application for leave to appeal to the Court of Appeal out of time. That application was dismissed on 15 December 2011.", "II. RELEVANT DOMESTIC LAW AND PRACTICE", "37. Section 31 of the Children Act 1989 provides for the making of care and supervision orders:", "“(1) On the application of any local authority or authorised person, the court may make an order—", "(a) placing the child with respect to whom the application is made in the care of a designated local authority; or", "(b) putting him under the supervision of a designated local authority or of a probation officer.", "(2) A court may only make a care order or supervision order if it is satisfied—", "(a) that the child concerned is suffering, or is likely to suffer, significant harm; and", "(b) that the harm, or likelihood of harm, is attributable to—", "(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or", "(ii) the child’s being beyond parental control.”", "38. The Adoption and Children Act 2002 provides for the making of placement orders:", "“21 Placement Orders", "(1) A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority.", "(2) The court may not make a placement order in respect of a child unless—", "(a) the child is subject to a care order,", "(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or", "(c) the child has no parent or guardian.", "(3) The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied—", "(a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or", "(b) that the parent’s or guardian’s consent should be dispensed with.", "... ... ...", "52 Parental etc. consent", "(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that—", "(a) the parent or guardian cannot be found or is incapable of giving consent, or", "(b) the welfare of the child requires the consent to be dispensed with.”", "39. In England and Wales the Official Solicitor acts for people who, because they lack mental capacity and cannot properly manage their own affairs, are unable to represent themselves and no other suitable person or agency is able and willing to act. He is currently appointed by the Lord Chancellor under section 90 of the Supreme Court Act 1981.", "40. The Official Solicitor generally becomes involved in litigation because he is invited to do so. It is a matter for his discretion whether he consents to act and he cannot be compelled to act. If he consents to act, he may become involved in proceedings as a “litigation friend”. However, the Practice Direction accompanying Part 7 of the Family Procedure (Adoption) Rules 1991 (“FPR”) provides that the duty of a litigation friend is:", "“fairly and competently to conduct proceedings on behalf of the non-subject child or protected party”", "and that:", "“... all steps and decisions he takes in the proceedings must be taken for the benefit of the non-subject child or the protected party”.", "41. Rule 21.1 defines a “protected party” as “a party, or an intended party, who lacks capacity to conduct the proceedings”. “Lacks capacity” is defined by reference to the Mental Capacity Act 2005:", "“2 People who lack capacity", "(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.", "... ... ...", "3 Inability to make decisions", "(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable—", "(a) to understand the information relevant to the decision,", "(b) to retain that information,", "(c) to use or weigh that information as part of the process of making the decision, or", "(d) to communicate his decision (whether by talking, using sign language or any other means).", "(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).", "(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.", "(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of—", "(a) deciding one way or another, or", "(b) failing to make the decision.”", "42. The leading judgment on the issue of litigation capacity is that of the Court of Appeal in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889; Masterman-Lister v Jewell and another [2003] EWCA Civ 70. In his judgment, Chadwick LJ noted:", "“The authorities are unanimous in support of two broad propositions. First, that mental capacity required by the law is capacity in relation to the transaction which is to be effected. Second, that what is required is the capacity to understand the nature of the transaction involved when it is explained.", "... ... ...", "For the purposes of CPR Part 21, the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisors and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law whether substantive or procedure should require the imposition of a next friend or guardian ad litem (or, as such person is now described in the Civil Procedure Rules, a litigation friend).", "... ... ...", "... a person should not be held unable to understand the information relevant to a decision if he can understand an explanation of that information in broad terms and simple language; and that he should not be regarded as unable to make a rational decision merely because the decision which he does in fact make is a decision which would not be made by a person of ordinary prudence.”", "III. INTERNATIONAL LAW AND PRACTICE", "43. The United Nations Convention on the Rights of Persons with Disabilities provides as follows:", "“Article 1 - Purpose", "The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.", "Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.", "... ... ...", "Article 5 - Equality and non-discrimination", "1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.", "2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.", "3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.", "4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.", "... ... ...", "Article 12 - Equal recognition before the law", "1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.", "2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.", "3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.", "4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.", "... ... ...", "Article 13 - Access to justice", "1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.", "2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.", "... ... ...", "Article 23 - Respect for home and the family", "1. States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, so as to ensure that:", "a) The right of all persons with disabilities who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses is recognized;", "b) The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided;", "c) Persons with disabilities, including children, retain their fertility on an equal basis with others.", "2. States Parties shall ensure the rights and responsibilities of persons with disabilities, with regard to guardianship, wardship, trusteeship, adoption of children or similar institutions, where these concepts exist in national legislation; in all cases the best interests of the child shall be paramount. States Parties shall render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities.", "3. States Parties shall ensure that children with disabilities have equal rights with respect to family life. With a view to realizing these rights, and to prevent concealment, abandonment, neglect and segregation of children with disabilities, States Parties shall undertake to provide early and comprehensive information, services and support to children with disabilities and their families.", "4. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents.", "5. States Parties shall, where the immediate family is unable to care for a child with disabilities, undertake every effort to provide alternative care within the wider family, and failing that, within the community in a family setting.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "44. The applicants complained that the appointment of the Official Solicitor to act as R.P.’s litigation friend violated their rights under Article 6 § 1 of the Convention, which reads as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "45. The Government contested that argument.", "A. Admissibility", "46. The Court notes that R.P.’s complaint under Article 6 § 1 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, nor is it inadmissible on any other ground. Consequently, it must be declared admissible.", "47. However, the Court observes that A.P., M.P. and B.P., who were K.P.’s uncle and maternal grandparents, did not have parental rights in respect of her and, as a consequence, they were not parties to the care proceedings. Therefore, although A.P., M.P. and B.P. played an active role in supporting R.P. during the care proceedings, it could not be said that those proceedings involved the determination of their civil rights and obligations ( McMichael v. the United Kingdom, 24 February 1995, § 77, Series A no. 307 ‑ B). Consequently, the Court does not consider that A.P., M.P. or B.P. can claim to be victims of a violation of Article 6 § 1 of the Convention. Although the Government have not raised an objection on this ground, the Court notes that an objection on the ground of victim status is an objection which goes to the Court’s jurisdiction and, as such, the Court is not estopped from raising it of its own motion (see, mutatis mutandis, Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006 ‑ III).", "B. Merits", "1. The first applicant’s submissions", "48. R.P. submitted that Article 6 § 1 has been violated because the decision on whether or nor she had litigation capacity was not fully tested by a court and she did not have a full opportunity to challenge that decision. In particular, she submitted that once S.C. received H.J.’s report, she should have either advised her to seek separate legal advice or advised her that she could challenge the report, and that public funding should have been made available to enable her to pursue either of these options. In reality, however, no-one explained to R.P. the implications of the Official Solicitor being instructed or that she could challenge H.J.’s findings as to her litigation capacity. Although the Official Solicitor wrote her a letter, she was unlikely to have understood the subtleties of it. The procedure adopted was therefore palpably inadequate and the methods adopted were not appropriate to explain the critical issues to someone in R.P.’s position.", "49. Moreover, R.P. submitted that the procedural defects in the assessment of litigation capacity were exacerbated by the dual role of her solicitor. In particular, she argued that S.C. should not have acted on behalf of the Official Solicitor while she was not agreeing with H.J.’s views on her capacity and was not receiving separate legal advice. Finally, she submitted that there should have been a formal process by which the issue of litigation capacity was regularly reviewed by the courts and she should have been advised that she could ask the court to reconsider the issue.", "50. Finally, R.P. submitted that there was an inherent conflict in the role of the Official Solicitor, who appeared to have assumed that his role was primarily to consider the best interests of K.P. As a consequence, no-one was advocating on behalf of R.P., who was thus deprived of an opportunity to advance her case before the domestic courts.", "2. The Government’s submissions", "51. The Government rejected the first applicant’s suggestion that her litigation capacity should have been tested adversarially in court. They submitted that as judges started from a presumption that a party had capacity, and that presumption was only displaced after the court had assessed the evidence carefully, even where a court was not asked to adjudicate a contested issue of litigation capacity it would still require medical (and possibly other) evidence before proceeding on the basis that a party lacked such capacity. Thus, the approach of the courts ensured that capacity was not removed without safeguards.", "52. In any case, H.J.’s report had been clear on the question of capacity and R.P. had been fully apprised of the report’s findings. Nevertheless, the first indication she gave of wanting to challenge the Official Solicitor’s appointment was on 27 August 2007, two days before the final hearing and some ten months after his appointment. There was therefore no reason why the court should have been expected to embark on an investigation of capacity: the question had appeared to be uncontentious and to require such an unnecessary formal process would have risked delaying the care proceedings and damaging the welfare of the child.", "53. The Government further submitted that S.C. had acted entirely properly throughout the proceedings. It would have been unrealistic to have expected S.C. to advise R.P. to seek either a second opinion or separate legal advice as she had fully explained H.J.’s report to R.P., who had given no indication that she disagreed with the conclusions. However, even if S.C. had not acted entirely properly, the United Kingdom had done all that was required of it to discharge its obligations to her under the Convention. First, they had in place detailed and comprehensive rules to regulate the conduct of private solicitors (the “Solicitors’ Code of Conduct”); secondly, the Official Solicitor issued comprehensive standard instructions to solicitors instructed by him in care and placement proceedings, explicitly reminding them of the need to keep the protected party informed and to keep in mind the issue of his or her litigation capacity; and thirdly, they had in place a scheme of public funding to obtain evidence in relation to litigation capacity and to fund advice for, and representation of, parents in care and placement proceedings. Therefore, the Government submitted that insofar as Article 6 § 1 imposed positive obligations on the United Kingdom to secure R.P.’s rights, the United Kingdom had fulfilled those obligations. R.P. had, at the State’s expense, the solicitor of her choice who was regulated by a State-imposed professional code that obliged her to act in R.P.’s best interests, to explain to R.P. the issues and to keep R.P. up-to-date on the progress of her case.", "54. The Government further submitted that a system for automatic periodic review would be unnecessary and inappropriate in the context of care and placement proceedings, where the child’s welfare was likely to be harmed by any delay. It was also in the protected party’s best interests to be able to raise the issue of capacity at any appropriate point.", "55. While the Government agreed that the role of a litigation friend was to act in the protected party’s best interests, they argued that when the protected party was a parent it was not sensible or realistic to expect the Official Solicitor to ignore the welfare of the child as this was the touchstone by which the courts would assess the case under domestic law. Moreover, it would be artificial to draw an absolute distinction between the welfare of the parent and that of the child where care and placement orders were concerned as the welfare of the child constituted an element of the welfare of the protected party. In addition, the Government noted that it was open to any parent not represented by a litigation friend to concede that the “threshold criteria” had been met or to agree to the local authority’s care plan. It should therefore be open to the litigation friend to do the same, otherwise loss of litigation capacity would mean loss of the ability to concede a case where an ordinary litigant would reasonably do so. Thus, it was not unreasonable of the Official Solicitor, in deciding what was in R.P.’s best interests, to bear in mind the test that the court would be applying and not completely ignore the welfare and interests of K.P.", "56. In any case, the Government submitted that it would not necessarily be open to a parent with litigation capacity to put forward any case they wished. A responsible representative would advise the parent on the merits and, if he or she chose to ignore that advice, the representative would be bound by the rules of professional conduct to withdraw and the court would then most likely exercise its case management powers to limit the presentation of irrelevant or unarguable matters.", "57. The Government also stressed that the Official Solicitor took all appropriate measures to ensure that the court was aware of the wishes of R.P. However, it would have been inappropriate for him to have advanced her position more vigorously, or to have argued that which was not reasonably arguable. Acting in R.P.’s best interests did not entail advancing whatever case R.P. wanted to advance, however unarguable.", "58. Finally, the Government submitted that any criticism of the use of jointly instructed experts was misplaced. As local authorities in care and placement order proceedings did not have a vested interest in persuading courts to find that parents lacked capacity, no conflict of interest could arise. Moreover, experts owed a duty to the court and not to the party instructing them and in family proceedings they could only be instructed with the permission of the court, which would first be informed of their discipline, qualifications and expertise. In the present case S.C., R.P.’s own solicitor, selected H.J. and took primary responsibility for preparing her instruction. Consequently, no criticism could be made of the parties’ and the court’s decision to determine R.P.’s capacity by reference to H.J.’s reports.", "3. The submissions of the Third Party intervener", "59. The Equality and Human Rights Commission (“the Commission”) submitted that learning-disabled parents in the United Kingdom were more likely to have their children removed from their care than other parents and frequently did not receive the support which they needed in order to retain custody of their children. Consequently, decisions about the removal of children from learning-disabled parents required very close scrutiny of the support offered to the parents.", "60. The Commission further submitted that Articles 6, 8 or 14 could be breached if limitations were placed on a learning-disabled litigant’s right of access to a court which were not strictly necessary, or if a litigation friend did not take sufficient positive steps to ensure that the specific needs and interests of such a parent were properly taken into account. In particular, it was important that strong procedural safeguards existed to ensure that the parent’s views were properly, fully and fairly advanced before the court. In order for this to be the case, it was essential that decisions about the parent’s litigation capacity should not be taken on the basis of a joint report part-funded by an opposing party in family litigation; that the question of capacity be kept open, with a formal institutional/legal mechanism for it to be challenged by the learning-disabled person and reviewed if any evidence suggested it could be wrong or that the position had changed; and that the case put forward by the Official Solicitor or other litigation friend should be focused solely on the needs of the parent.", "4. The Court’s assessment", "61. The Court reiterates that the Convention is intended to guarantee practical and effective rights. This is particularly so of the right of access to a court in view of the prominent place held in a democratic society by the right to a fair trial (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32 and Steel and Morris v. the United Kingdom, no. 68416/01, § 59, ECHR 2005 ‑ II).", "62. Article 6 § 1 leaves to the State a free choice of the means to be used in guaranteeing litigants the above rights. The institution of a legal-aid scheme constitutes one of those means but there are others, such as for example simplifying the applicable procedure (see Airey v. Ireland, cited above, pp. 14-16, § 26; and McVicar v. the United Kingdom, no. 46311/99, § 50, ECHR 2002 ‑ III).", "63. However, the Court recalls that the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access \"by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals\" ( Golder v. the United Kingdom, 21 February 1975, § 19, quoting the\" Belgian Linguistic\" judgment of 23 July 1968, Series A no. 6, p. 32, para. 5). In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field ( Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, p. 24, para. 57).", "64. Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (see the above-mentioned Golder and \"Belgian Linguistic\" judgments, ibid., and also Winterwerp v. the Netherlands, 24 October 1979, §§ 60 and 75, Series A no. 33). Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.", "65. In cases involving those with disabilities the Court has permitted the domestic courts a certain margin of appreciation to enable them to make the relevant procedural arrangements to secure the good administration of justice and protect the health of the person concerned (see, for example, Shtukaturov v. Russia, no. 44009/05, § 68, 27 March 2008). This is in keeping with the United Nations Convention on the Rights of Persons with Disabilities, which requires States to provide appropriate accommodation to facilitate the role of disabled persons in legal proceedings. However, the Court has held that such measures should not affect the very essence of an applicant’s right to a fair trial as guaranteed by Article 6 § 1 of the Convention. In assessing whether or not a particular measure was necessary, the Court will take into account all relevant factors, including the nature and complexity of the issue before the domestic courts and what was at stake for the applicant (see, for example, Shtukaturov v. Russia, cited above, § 68).", "66. It is clear that in the present case the proceedings were of the utmost importance to R.P., who stood to lose both custody of and access to her only child. Moreover, while the issue at stake was relatively straightforward – whether or not R.P. had the skills necessary to enable her successfully to parent K.P. – the evidence which would have to be considered before the issue could be addressed was not. In particular, the Court notes the significant quantity of expert reports, including expert medical and psychiatric reports, parenting assessment reports, and reports from contact sessions and observes the obvious difficulty an applicant with a learning disability would have in understanding both the content of these reports and the implications of the experts’ findings.", "67. In light of the above, and bearing in mind the requirement in the UN Convention that State parties provide appropriate accommodation to facilitate disabled persons’ effective role in legal proceedings, the Court considers that it was not only appropriate but also necessary for the United Kingdom to take measures to ensure that R.P.’s best interests were represented in the childcare proceedings. Indeed, in view of its existing case-law the Court considers that a failure to take measures to protect R.P.’s interests might in itself have amounted to a violation of Article 6 § 1 of the Convention (see, mutatis mutandis, T. v. the United Kingdom [GC], no. 24724/94, §§ 79 - 89, 16 December 1999).", "68. It falls to the Court to consider whether the appointment of the Official Solicitor in the present case was proportionate to the legitimate aim pursued or whether it impaired the very essence of R.P.’s right of access to a court. In making this assessment, the Court will bear in mind the margin of appreciation afforded to Contracting States in making the necessary procedural arrangements to protect persons who lack litigation capacity ( Shtukaturov v. Russia, cited above, § 68).", "69. With regard to the appointment of the Official Solicitor, the Court observes that he was only invited to act following the commissioning of an expert report by a consultant clinical psychologist. In assessing R.P., the psychologist applied the test set out in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889; Masterman-Lister v Jewell and another [2003] EWCA Civ 70, namely whether R.P. was capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which her consent or decision was likely to be necessary in the course of the proceedings. She concluded that R.P. would find it very difficult to understand the advice given by her solicitor and would not be able to make informed decisions on the basis of that advice, particularly when it involved anticipating possible outcomes. The psychologist produced two more reports in the course of the proceedings, the second of which contained a further assessment of R.P.’s litigation capacity. In that report she noted that R.P. did not have the capacity to give informed consent to a placement order as she could not really understand the proceedings, except at a very basic level. The Court is satisfied that the decision to appoint the Official Solicitor was not taken lightly. Rather, it was taken only after R.P. had been thoroughly assessed by a consultant clinical psychologist and, while there was no formal review procedure, in practice further assessments were made of R.P.’s litigation capacity in the course of the proceedings.", "70. The Court considers that in order to safeguard R.P.’s rights under Article 6 § 1 of the Convention, it was imperative that a means existed whereby it was possible for her to challenge the Official Solicitor’s appointment or the continuing need for his services. In this regard, the Court observes that the letter and leaflet which the Official Solicitor sent to R.P. informed her that if she was unhappy with the way her case was being conducted, she could speak to either S.C. or to the Official Solicitor, or she could contact a Complaint’s Officer. Moreover, in his statement to the Court of Appeal the Official Solicitor indicated that R.P. could have applied to the court at any time to have him discharged. Alternatively, he indicated that if it had come to his attention that R.P. was asserting capacity, then he would have invited her to undergo further assessment. While the Court observes that these procedures fall short of a formal right of appeal, in view of the finding that R.P. lacked litigation capacity, it considers that they would have afforded her an appropriate and effective means by which to challenge the appointment or the continued need for the appointment of the Official Solicitor.", "71. The Court does not consider that it would have been appropriate for the domestic courts to have carried out periodic reviews of R.P.’s litigation capacity, as such reviews would have caused unnecessary delay and would therefore have been prejudicial to the welfare of K.P. In any event, as noted above (see paragraph 69), assessments were in fact carried out of R.P.’s litigation capacity in the course of the proceedings. The Court would also reject R.P.’s assertion that she should have been encouraged to seek separate legal advice at this juncture. In view of the fact that she had been found to lack the capacity to instruct a solicitor the Court does not consider that this would have been a necessary or even an effective means by which to protect her interests.", "72. As stated in paragraph 61 above, the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective and this is particularly so of the right of access to a court in view of the prominent place held in a democratic society by the right to a fair trial ( Airey v. Ireland, cited above, § 24). Consequently, any means of challenging the appointment of the Official Solicitor, however effective in theory, will only be effective in practice and thus satisfy the requirements of Article 6 § 1 of the Convention if the fact of his appointment, the implications of his appointment, the existence of a means of challenging his appointment and the procedure for exercising it are clearly explained to the protected person in language appropriate to his or her level of understanding.", "73. In this regard, the Court recalls that the letter sent to R.P. indicated that the Official Solicitor would act as her guardian ad litem and would instruct her solicitor for her. It further indicated that S.C. would tell the Official Solicitor how R.P. felt about things and that he would consider her wishes and views before he filed a statement on her behalf. He would do his best to protect her interests but also had to bear in mind what was best for K.P. The leaflet accompanying the letter informed R.P. that the Official Solicitor made decisions about court cases, such as whether to bring, defend or settle a claim. Under the heading “Will the client be consulted” R.P. was informed that “the instructed solicitor will communicate with the client and attend court hearings and will report on the outcome to the case manager”. If she was dissatisfied with the way her case was being conducted, she was informed that she should discuss the matter either with S.C. or the Official Solicitor’s Office. If she remained dissatisfied she could write to the Complaint’s Officer. While the Court accepts that R.P. might not have fully understood, on the basis of this information alone, that the Official Solicitor could consent to the making of a placement order regardless of her own personal wishes, it cannot ignore the fact that she was at all times represented by S.C. and experienced counsel who should have, and by all accounts did, explain to her the exact role of the Official Solicitor and the implications of his appointment. Indeed, in this regard the Court recalls that S.C.’s conduct of the case was commended by the Court of Appeal which found, in its judgment of 8 May 2008, that R.P. had been fully informed of the involvement of the Official Solicitor and the nature of his role. Nevertheless, she did not seek to complain until ten months after his appointment and two days before the final hearing.", "74. Consequently, the Court considers that adequate safeguards were in place to ensure that the nature of the proceedings was fully explained to the applicant and, had she sought to challenge the appointment of the Official Solicitor, procedures were in place to enable her to do so (cf. Stanev v. Bulgaria, [GC], no. 36760/06, 17 January 2012, where no direct access to court was open to the applicant to have his status as a partially incapacitated person reviewed by a court).", "75. With regard to the role of the Official Solicitor in the legal proceedings, the Court recalls that he was to act “for the benefit of the protected party”. The Court has taken note of R.P.’s concerns about his focus in the present case on “what was best for K.P.”. However, the Court accepts that the best interests of K.P. were the touchstone by which the domestic courts would assess the case. Thus, in determining whether a case was arguable or not, it was necessary for the Official Solicitor to consider what was in K.P.’s best interests. Consequently, the Court does not consider that the fact the Official Solicitor “bore in mind” what was best for K.P. in deciding how to act amounted to a violation of R.P.’s rights under Article 6 § 1 of the Convention.", "76. Moreover, the Court does not consider that “acting in R.P.’s best interests” required the Official Solicitor to advance any argument R.P. wished. On the contrary, it would not have been in R.P.’s – or in any party’s – best interests for the Official Solicitor to have delayed proceedings by advancing an unarguable case. Nevertheless, in view of what was at stake for R.P., the Court considers that in order to safeguard her rights under Article 6 § 1 of the Convention, it was imperative that her views regarding K.P.’s future be made known to the domestic court. It is clear that this did, in fact, occur as R.P.’s views were referenced both by the Official Solicitor in his statement to the court and by R.P.’s counsel at the hearing itself.", "77. Moreover, the Court recalls that R.P. was able to appeal to the Court of Appeal. Although she was not legally represented in the appeal proceedings, this was through choice as she refused the assistance of pro bono counsel which the Official Solicitor had secured for her. Nevertheless, the Court notes that in the course of the appeal proceedings she was afforded ample opportunity to put her views before the court, and her arguments were fully addressed in the court’s judgment.", "78. Consequently, the Court does not consider that the very essence of R.P.’s right of access to a court was impaired. The Court therefore finds that there has been no violation of her rights under Article 6 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "79. The first applicant complained of a violation of Article 8 of the Convention as she did not have an opportunity to challenge the decision to remove K.P. from her care. The first, second, third and fourth applicants’ further complained that the removal of K.P. from R.P.’s care violated their right to respect for their family life under Article 8 of the Convention.", "80. Article 8 of the Convention provides that:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "81. The Court notes that the first applicant’s complaint is linked to the one examined above and must therefore be declared admissible. However, having regard to the finding relating to Article 6 § 1 (see paragraph 78, above), it considers that there is no need to examine the complaint separately under Article 8 of the Convention.", "82. Although the Court accepts that the removal of K.P. from R.P.’s care interfered with the applicants’ right to respect for their family life, it considers that the interference was both in accordance with the law and in pursuit of a legitimate aim, namely the protection of K.P. from harm. Moreover, in view of the overwhelming evidence indicating that none of the applicants had the ability adequately to care for K.P., even with the support of the local authority, the Court accepts that the interference was necessary to protect K.P. from harm.", "83. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3(a) and 4 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "84. The first applicant complained that Article 13 had been violated because she was unable to challenge the appointment of the Official Solicitor.", "85. The Court notes that the R.P. was found to be lacking in capacity to be a party to the legal proceedings pursuant to the test set out in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889; Masterman-Lister v Jewell and another [2003] EWCA Civ 70. Accordingly, it would not have been open to her to bring separate legal proceedings to challenge the appointment of the Official Solicitor. In any event, the Court has accepted, in its findings under Article 6 § 1 of the Convention, that it was at all times open to R.P. to seek the discharge of the Official Solicitor, either through an application to the court or, perhaps more appropriately, through a complaint to the Official Solicitor’s Office (see paragraph 70).", "86. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3(a) and 4 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "87. The first applicant complained under Article 14, read in conjunction with Articles 6 § 1 and 8 of the Convention, that she was denied the right to challenge the removal of K.P. from her care on account of her disability.", "88. Article 14 provides that:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "89. The Court has accepted that it was necessary for the Contracting State to take measures to protect litigants in R.P.’s situation and that the Official Solicitor scheme was within the United Kingdom’s margin of appreciation (see paragraph 67, above). Consequently, although the Court accepts that the first applicant was treated differently from someone with legal capacity, it finds that her situation was significantly different from such a person and the difference in treatment was objectively and reasonably justified (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000 ‑ IV).", "90. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1939 and lives in Yerevan.", "A. The applicant’s divorce and eviction claim and the proceedings concerning deprivation of his legal capacity", "6. The applicant lived in a flat with his wife of 15 years and their son and the latter’s wife and child.", "7. On 25 April 2012 the applicant instituted proceedings at the Shengavit District Court of Yerevan (“the District Court”) seeking to divorce his wife and evict her from his flat. The applicant submitted that their co-habitation had become unbearable, as in the past 12 years there had been conflicts in their relationship, as a result of which they had already de facto separated. The applicant submitted that the flat in question was not their common property and by law he was its sole owner.", "8. On 4 July 2012 the applicant’s wife instituted “special” court proceedings ( հատուկ վարույթ ) under Article 168 of the Code of Civil Procedure (CCP), seeking to declare the applicant incapable. She submitted that the applicant had become unrecognisable: he constantly initiated arguments, made accusations and threatened her, other family members and in general people around him. He had recently threatened to take revenge and to throw all of them out onto the street. He had first applied to the police to have her and others’ registrations at that address cancelled and then lodged a claim to divorce and evict her which, she claimed, were signs of a mental disorder. The applicant’s wife explained that she had no choice but to apply to a court because the applicant’s behaviour posed a threat to the entire family, as his next step would be to evict the other family members and it was necessary to prevent that. Attached to her application was a statement signed by four of their neighbours, dated 28 June 2012, according to which the applicant had begun to behave strangely over the last few years, constantly seeking conflict with people around him and addressing absurd accusations at his wife and other family members. The neighbours added that they believed that the applicant was suffering from a mental disorder.", "9. On the same date the District Court ordered the applicant’s examination by a panel of psychiatric experts, asking them to determine whether the applicant was able to understand the meaning of his actions and to control them. The District Court added that such examination was necessary because the evidence submitted by the applicant’s wife might be insufficient to grant her application.", "10. On 25 September 2012 the panel of psychiatric experts issued their opinion after having examined the applicant and other evidence. The opinion, a two-page document, first summarised the statements made by his wife, neighbours and a local police officer, according to which in recent years the applicant had become suspicious, intolerant and argumentative, constantly seeking conflict with his wife and others around him, addressing absurd accusations at his wife, physically abusing her and accusing her of infidelity and of swindling him. It then analysed the applicant’s behaviour during an interview conducted with him. Based on the above, the panel concluded that the applicant suffered from “delusional disorder”, a mental illness whose symptoms had reached a degree which deprived the applicant of the ability to understand the meaning of his actions and to control them.", "11. On 14 November 2012 the applicant’s son also instituted “special” court proceedings under Article 168 of the CCP, seeking to declare the applicant incapable on the ground that he was suffering from a mental disorder and required special care.", "12. On 22 November 2012 the District Court decided to stay the divorce and eviction proceedings until final resolution of the two applications that had been initiated in respect of the applicant after he had filed his divorce and eviction claim.", "13. On 13 December 2012 the District Court examined the application lodged by the applicant’s wife in the applicant’s presence and decided to reject it, noting the conflict of interest between the applicant and his wife and finding that the expert opinion of 25 September 2012 was necessary, but insufficient evidence for depriving the applicant of his legal capacity. The District Court concluded that the applicant’s wife’s application did not pursue a legitimate aim; hence depriving the applicant of his legal capacity in such circumstances would entail serious and irreversible consequences for him, making him a potential victim of a breach of the Convention.", "14. On 9 January 2013 the applicant’s wife lodged an appeal against that judgment.", "15. On 8 February 2013 the District Court, in a different composition, granted the application lodged by the applicant’s son and declared the applicant incapable. The District Court relied on the psychiatric expert opinion of 25 September 2012 and concluded that the applicant was unable to understand the meaning of his actions and to control them. The applicant was not notified of the application lodged by his son or of the hearing at the District Court.", "16. No appeal was lodged against that judgment so it became final on 11 March 2013.", "17. On 20 March 2013 the local body of guardianship and trusteeship appointed the applicant’s son as his guardian on the basis of the judgment of 8 February 2013.", "18. On 28 March 2013 the Civil Court of Appeal reversed the judgment of 13 December 2012 and remitted the case upon the applicant’s wife’s appeal. The Civil Court of Appeal noted that at the time when the District Court examined the applicant’s wife’s application the final judgment of 8 February 2013 declaring the applicant incapable had not existed. Therefore she had not been able to present that judgment, which was key evidence for the resolution of the case, to the District Court for reasons beyond her control. The Civil Court of Appeal concluded that this reason alone was sufficient to reverse the judgment of 13 December 2012.", "19. On 31 May 2013 the applicant, having learned about the judgment of 8 February 2013, lodged an appeal against it on the ground that the District Court had declared him incapable without notifying him of the hearing.", "20. On 11 July 2013 the Civil Court of Appeal reversed the judgment of 8 February 2013 and ordered a new examination on the ground that the applicant had not been notified of the hearing of the case concerning his legal capacity.", "21. On 30 August 2013 the District Court decided to involve the applicant as a third party to the proceedings.", "22. On 3 October 2013 the District Court held a preparatory hearing in the applicant’s presence and decided to join the applications lodged by the applicant’s wife and son and examine them together.", "23. On 31 October 2013 the District Court held another preparatory hearing. According to the record of the hearing, a representative of the local body of guardianship and trusteeship, R.S., represented the applicant, who was absent from the hearing. It is not clear from the record whether any issues were discussed at this hearing", "24. On 18 November 2013 the District Court held a trial hearing with the participation of the applicant, his wife and R.S. After R.S. endorsed the applications lodged by the applicant’s wife and son relying on the psychiatric expert opinion of 25 September 2012, the presiding judge invited the applicant to state his position in that respect. The applicant denied that he was suffering from a serious mental disorder and argued that bribery was involved in the process of his psychiatric examination. He also stated that his relationship with his wife had been unbearable, since she had swindled him and frequently ridiculed him in front of others and that, as a result, he wanted to divorce her. The applicant also urged the judge to read “Article 48 of the European law” and “Article 32 of the Armenian law”. The presiding judge asked the applicant’s wife to explain the reasons why she sought to deprive the applicant of his legal capacity. The applicant’s wife firstly confirmed that they had had a conflictual relationship over the past 12 years and one of the reasons for this was that the applicant was overly jealous and suspicious. In addition, she stated that the applicant had threatened to stab himself with a knife. She explained that when the applicant filed the divorce and eviction claim, she had felt compelled to lodge an application seeking to declare him incapable.", "25. On 29 November 2013, in the applicant’s presence, the District Court granted the joint application of his wife and son and declared the applicant incapable on the basis of Article 31 of the Civil Code (CC). Relying on the psychiatric expert opinion of 25 September 2012, the District Court held that, as a result of his mental disorder, the applicant was unable to understand the meaning of his actions and to control them.", "26. The applicant lodged an appeal in which he argued that it had not been established that he was unable to understand the meaning of his actions. The District Court’s interpretation and application of Article 31 of the CC unduly restricted the scope of his civil rights. It was questionable whether the stated illness, namely “delusional disorder”, in fact deprived him of the ability to understand the meaning of his actions, as the contested judgment did not state any example or situation in which his alleged incapability was displayed. In addition, the District Court had failed to order a new medical assessment of his mental health and relied on the outdated opinion of 25 September 2012. Relying on Article 8 of the Convention and the Court’s judgment in the case of Shtukaturov v. Russia (no. 44009/05, ECHR 2008), the applicant argued that the failure of the domestic courts to scrutinise closely the degree of his illness was a breach of his right to private life. The applicant also submitted that the motivation of the applicant’s wife to deprive him of legal capacity was to deprive him of his flat. Finally, the applicant also expressed discontent with regard to his procedural status of a “third party”, as he could not be a mere “third party” in a case concerning deprivation of his legal capacity.", "27. On 7 March 2014 the Civil Court of Appeal rejected the applicant’s appeal. It found that the psychiatric expert opinion of 25 September 2012 was sufficient evidence to declare the applicant incapable. The Court of Appeal stated that there was no evidence to rebut the findings made in that expert opinion or to suggest that the applicant had recovered.", "28. The applicant lodged an appeal on points of law.", "29. On 10 April 2014 the applicant wrote to the local body of guardianship and trusteeship asking that his opinion be taken into account when appointing his guardian.", "30. On 30 April 2014 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit.", "31. On 19 June 2014 the applicant’s son filed a request with the District Court seeking to withdraw the applicant’s divorce and eviction claim on the grounds that the applicant had been declared incapable. He also informed the District Court that he had been appointed as the applicant’s guardian by a decision of the local body of guardianship and trusteeship of 20 March 2013.", "32. On 14 August 2014 the District Court decided to resume the divorce and eviction proceedings.", "33. On 16 September 2014 the body of guardianship and trusteeship endorsed its decision of 20 March 2013 appointing the applicant’s son as his guardian, relying this time on the judgment of 29 November 2013.", "34. On 1 October 2014 the District Court granted the request of the applicant’s son and terminated the divorce and eviction proceedings on the ground that the domestic law authorised a guardian to withdraw the claim of a person declared incapable, on the latter’s behalf. It also stated that the applicant’s son was appointed as guardian with the applicant’s consent and at his wish.", "B. Contestation of guardianship", "35. On 19 February 2015 the applicant lodged an application with the Administrative Court seeking to quash the decision of the body of guardianship and trusteeship of 20 March 2013 and to appoint a new guardian.", "36. On 25 February 2015 the Administrative Court declared the applicant’s application inadmissible on the ground that the applicant had been declared incapable, as a result of which he lacked standing to lodge such a claim.", "37. The applicant appealed against that decision.", "38. On 16 April 2015 the Administrative Court of Appeal dismissed the applicant’s appeal.", "39. The applicant lodged an appeal on points of law.", "40. On 28 September 2016 the Court of Cassation granted the applicant’s appeal on points of law and quashed the decision of the Administrative Court of Appeal. The Court of Cassation reasoned its decision to admit the applicant’s appeal for examination on the ground that it was necessary to clarify whether or not a person declared incapable had the right to contest the decision appointing his guardian. As regards the merits, the Court of Cassation took note of the applicant’s submissions on conflict of interest and regular disputes between him and his son. It found that, notwithstanding the duty of the body of guardianship and trusteeship under Article 37 § 3 of the CC to hear the opinion of the applicant and consider his wish when appointing his guardian, it had apparently failed to do so, even though the applicant had requested a hearing. It concluded that, in such circumstances, requiring the applicant to seek judicial protection as regards the appointment of his guardian exclusively through his guardian was, at least, ineffective in practice. As a person affected by the decision on the appointment of his guardian, the applicant should have enjoyed the right to contest such decision before a court since the impossibility to do so would violate the applicant’s right of access to court.", "41. On 14 November 2016 the Administrative Court of Appeal quashed the decision of the Administrative Court of 25 February 2015 and remitted the case for new examination.", "42. At the time of final exchange of observations between the parties, the proceedings in question were still pending before the Administrative Court and their outcome is unknown.", "C. The applicant’s attempts to restore his legal capacity", "43. On 23 May 2014 the applicant filed a letter with the Minister of Health, seeking a new psychiatric examination to determine whether or not he was able to understand the meaning of his actions and control them, because almost two years had passed since the only psychiatric expert opinion of 25 September 2012.", "44. On 2 June 2014 the Ministry of Health replied that it had no authority to order such an examination.", "45. On 22 August 2014 the applicant applied to a psychiatric hospital seeking a psychiatric expert examination. The hospital apparently never responded to this request.", "46. On the same date the applicant applied to the District Court, stating that his state of health required a review because almost two years had passed since the psychiatric expert opinion of 25 September 2012 which had been the sole ground for declaring him incapable, and requesting the court to assign a new psychiatric expert examination to determine whether or not his mental health allowed him to understand the meaning of his actions and to control them.", "47. On 28 August 2014 the District Court replied to the applicant that, under Article 173 § 1 of the CCP, it was competent to declare a person who has recovered legally capable on the basis of a relevant psychiatric expert opinion, upon an application lodged by the guardian, a family member or the administration of a psychiatric institution. It had no authority to request a new psychiatric expert examination in view of the final judgment of 29 November 2013.", "48. On 7 April 2015 the Constitutional Court, upon an application lodged by the Ombudsman, declared Article 173 § 1 of the CCP unconstitutional, in so far as it deprived persons seeking to restore their legal capacity of the possibility to avail themselves personally of the right to be heard by a court and to participate in the proceedings.", "49. On 11 May 2015 the applicant, represented by lawyers, instituted proceedings in the District Court seeking to be declared legally capable. The District Court admitted the applicant’s application and granted him procedural status as a third party.", "50. On 29 June 2015 the District Court ordered the applicant’s examination by a psychiatric expert panel in order to determine whether he was able to understand the meaning of his actions or to control them.", "51. On 29 October 2015 the panel concluded that the applicant could be suffering from “delusional disorder”, “jealousy delirium” and “lightly expressed age-related personality change”. It stated that an inpatient examination was necessary, as it was unable to make a precise diagnosis of the applicant’s condition and answer the District Court’s questions.", "52. The applicant’s lawyer lodged a request with the District Court seeking an outpatient psychiatric examination, arguing that an inpatient examination would adversely affect the applicant’s mental and physical health.", "53. On 1 August 2016 the District Court ordered the applicant’s outpatient psychiatric examination and asked the examination panel to answer the following questions:", "“Whether or not [the applicant] suffers from any kind of mental disorder and whether or not he is able to understand the meaning of his actions and to control them”.", "54. On 6 December 2016 the psychiatric expert panel, having examined the applicant, delivered its report as follows:", "“[the applicant] suffers from a mental disorder, i.e. “intellectual retardation of mixed origin”, which is expressed in grave disturbance of memory and intellect, disturbances of the functions of thought, analysis, cognition, speech, perception and production. The abovementioned [conditions] reached a degree which deprived [the applicant] of the ability to understand the meaning of his actions or to control them. Hence, under the current conditions, it is advised to deprive [the applicant] of his legal capacity”.", "55. At the time of exchange of observations between the parties, the proceedings were still pending before the domestic courts. The outcome of those proceedings is unknown." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Civil Code (1999)", "56. Article 31 provides that a person who, as a result of a mental disorder, is unable to understand the meaning of his or her actions or to control them may be declared incapable by a court, in accordance with the procedure prescribed by the CCP. Transactions on behalf of a person declared incapable are handled by his or her guardian. A court restores a person’s legal capacity, if the grounds on the basis of which he was declared incapable cease to exist. Guardianship is terminated on the basis of such judgment.", "57. Article 32 provides that legal capacity of a person may be restricted by a court, in accordance with the procedure prescribed by the CCP, if he or she puts his family into a difficult financial situation as a result of alcohol or drug abuse or gambling. Trusteeship is assigned in respect of such persons.", "58. Article 33 §§ 1 and 2 provides that guardianship and trusteeship are designated for the purpose of protecting the rights and interests of incapable persons or those whose legal capacity has been restricted. Guardians and trustees defend the rights and interests of their wards in their relations with everyone, including before the courts, without a special authorisation.", "59. Article 37 §§ 1 and 3 provides that a guardian is appointed by the local body of guardianship and trusteeship. The appointment of a guardian may be contested before a court by persons concerned. When appointing a guardian, the nature of the relationship between the potential guardian and the ward and, if possible, the wishes of the ward are taken into account, among other things.", "B. Code of Civil Procedure (1999-2018)", "1. Procedure for declaring a person incapable", "60. Section 2 of Part 3 of the Code, entitled “Special proceedings”, includes Chapter 29 (Articles 168-173) which regulates the procedure for declaring a person incapable.", "61. Article 168 § 1 provides that an application for a person to be declared incapable may be lodged by his or her family members, a body of guardianship and trusteeship or the administration of a psychiatric institution.", "62. Article 169 § 1 provides that an application for a person to be declared incapable must indicate the circumstances demonstrating a person’s mental disorder and as a result of which he or she is unable to understand the meaning of his or her actions or to control them.", "63. Article 170 provides that, if there is a reasonable suspicion that a person suffers from a mental disorder, the judge orders a psychiatric expert examination to determine the state of mental health of the person in question.", "64. Article 171 § 1 provides that an application for a person to be declared incapable must be examined in the presence of a representative of a body of guardianship and trusteeship. The person concerned may be invited to the hearing, if his state of health permits.", "65. Article 172 § 1 provides that the body of guardianship and trusteeship appoints a guardian on the basis of a judgment declaring a person incapable.", "66. Article 173 § 1 provides that, in cases prescribed by the CC, the court declares a person who has recovered capable, on the basis of a relevant psychiatric expert opinion, upon an application lodged by the guardian, a family member or the administration of a psychiatric institution.", "2. Other relevant provisions", "67. Article 27 provides that persons participating in the proceedings include (1) the parties; (2) third parties; and (3) applicants in cases envisaged by Part 3 of the Code.", "68. Article 35 § 2 provides that third parties who have no claims of their own in respect of the dispute enjoy the same rights as the parties, except the right to change the grounds or subject of a claim, to increase or decrease the amount of a claim, to withdraw a claim, to accept a claim or enter into a friendly settlement, and to demand compulsory enforcement of a judicial decision.", "69. Article 43 § 1 provides that the rights and legitimate interests of persons declared incapable are defended before the courts by their parents (or foster parents), guardians or trustees.", "70. Article 105 provides that the court must suspend the proceedings if, inter alia, it is impossible to examine the case until final resolution of another constitutional, civil, criminal or administrative case, or if the individual participating in the case has been declared incapable.", "III. RELEVANT INTERNATIONAL DOCUMENTS", "A. Council of Europe", "71. On 23 February 1999 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (99) 4 on “Principles concerning the legal protection of incapable adults”. For the relevant parts of the Recommendation see Stanev v. Bulgaria ([GC], no. 36760/06, § 73, ECHR 2012). Other relevant parts not cited in that judgment read as follows:", "Principle 8 – Paramountcy of interests and welfare of the person concerned", "“1. In establishing or implementing a measure of protection for an incapable adult the past and present wishes and feelings of the adult should be ascertained so far as possible, and should be taken into account and given due respect.", "2. This principle implies, in particular, that the wishes of the adult as to the choice of any person to represent or assist him or her should be taken into account and, as far as possible, given due respect.”", "Principle 12 – Investigation and assessment", "“1. There should be adequate procedures for the investigation and assessment of the adult’s personal faculties.", "2. No measure of protection which restricts the legal capacity of an incapable adult should be taken unless [...] an up-to-date report from at least one suitably qualified expert has been submitted.”", "Principle 16 – Adequate control", "“There should be adequate control of the operation of measures of protection and of the acts and decisions of representatives.”", "72. On the same date the Committee of Ministers of the Council of Europe adopted the Explanatory Memorandum to Recommendation No. R (99) 4. Paragraph 47 provides the following explanation of Principle 8:", "“This principle implies among other things that the choice of any person to represent or assist an incapable adult should be governed by the suitability of that person to safeguard and promote the adult’s interests and welfare. In some family situations there are quite acute conflicts of interest and, while the invaluable and irreplaceable role of family members must be fully recognised and valued, the law must also be aware of the dangers which exist in certain situations of family conflict”.", "B. United Nations", "73. In December 2006 the United Nations Convention on the Rights of Persons with Disabilities (hereafter “the CRPD”) was adopted. It entered into force internationally in May 2008. By the end of September 2016, 44 out of the 47 Council of Europe member States had ratified the Convention. Armenia ratified the Convention on 22 September 2010. Article 12 of the CRPD, entitled “Equal recognition before the law”, provides as follows:", "“1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.", "2. States Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.", "3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.", "4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.", "5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "74. The applicant complained (a) that, after having been divested of legal capacity, he had had no standing before the domestic courts either to pursue his divorce and eviction claim or to request the restoration of his legal capacity; and (b) that he had not had a fair hearing in the proceedings concerning deprivation of his legal capacity, in breach of his rights guaranteed by Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:", "“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal....”", "A. Access to court", "1. Admissibility", "75. The Court notes that the applicant complained specifically about two restrictions on his access to court after he had been declared incapable: firstly, the inability to pursue his divorce and eviction claim and, secondly, the lack of possibility to apply to a court to have his legal capacity restored.", "76. The Government raised a non-exhaustion objection regarding the second complaint, arguing that it was premature because, following the Constitutional Court’s decision of 7 April 2015, the applicant was granted access to court to seek restoration of his legal capacity and those proceedings were still pending.", "77. The applicant submitted that his complaint about the lack of access to court for restoration of his legal capacity was limited to the situation before the Constitutional Court’s decision of 7 April 2015, specifically when in August 2014 he had tried to initiate a new medical examination and a review of his situation by the domestic court but was not able to do so because of the restriction imposed on his access to court by Article 173 of the CCP. The proceedings which he instituted after the Constitutional Court’s decision were indeed still pending but were not part of his application lodged with the Court. Thus, he could still claim to be a victim in respect of denial of access to court in August 2014.", "78. The Court notes that the applicant’s complaint concerns the lack of possibility to have access to court to request restoration of his legal capacity prior to the Constitutional Court’s decision of 7 April 2015. He was indeed granted access following that decision, but he does not complain about the fairness of those proceedings or the merits of that dispute. The fact that those proceedings are still pending is therefore irrelevant for the applicant’s access-to-court complaint and no question of non-exhaustion or prematurity of his complaint arises. The Court therefore dismisses the Government’s objection in this respect.", "79. On the other hand, the Court cannot overlook the fact that, taking into account that the applicant was eventually granted access to court to seek restoration of his legal capacity, a question arises as to whether the applicant can still claim to be a victim of an alleged violation of Article 6 § 1 of the Convention. In this respect, the Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him or her of “victim” status unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006 ‑ V).", "80. In the present case, the Court notes that by virtue of the restriction contained in Article 173 § 1 of the CCP, the applicant did not have standing to initiate court proceedings with a view to reviewing and restoring his legal capacity. This situation changed when, on 7 April 2015, the Constitutional Court declared Article 173 § 1 unconstitutional and invalid in so far as it failed to ensure for persons declared incapable the right to initiate personally court proceedings, putting an end to the situation complained of by the applicant in his application and allowing him to institute court proceedings in May 2015. However, in the Court’s view, the Constitutional Court’s decision, which was moreover taken upon an application lodged by the Ombudsman and was not in any way related to the applicant’s particular case, did not constitute either an implicit acknowledgement of a breach of the applicant’s right of access to court or redress for the period during which the applicant was deprived of this right (see, mutatis mutandis, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 83, ECHR 2012).", "81. The Court therefore concludes that the applicant can still claim to be a victim of an alleged violation of his right of access to court guaranteed by Article 6 § 1 of the Convention.", "82. The Court notes that the applicant’s complaints concerning lack of access to court are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "2. Merits", "(a) The parties’ submissions", "(i) The applicant", "83. The applicant submitted that, after he had been declared incapable, he had no standing before the domestic courts either to pursue his divorce and eviction claim or to apply to a court to have his legal incapacity reviewed, in breach of his right of access to a court guaranteed by Article 6 of the Convention.", "84. As regards the divorce and eviction proceedings, the applicant submitted that he had initiated those proceedings before his wife and son applied to a court to have him declared incapable. He argued that the sole purpose of their action was to avoid the divorce and eviction, and once he was declared incapable he no longer had the possibility to present personally his divorce and eviction case in court or to request an examination of that claim after the proceedings had been stayed since, in accordance with Article 31 and 33 of the CC, he could act before the courts only through his guardian. The claim had eventually been abandoned not by him but by his son, with whom he had a conflictual relationship and regular disputes and who, in so doing, had acted against his will and interests. The withdrawal of the claim had therefore not been in his best interest and pursued the sole aim of avoiding divorce and eviction. Thus, he had been deprived of the possibility to pursue his divorce and to protect his right to private life.", "85. As regards restoration of legal capacity, the applicant submitted that in August 2014 he had applied to a court with a request to appoint a new medical examination in order to review the decision declaring him incapable. The court, however, had refused to examine that request with reference to Article 173 of the CCP, which prevented his access to court to seek restoration of his legal capacity. Furthermore, the Armenian system did not provide for any possibility for a review of legal incapacity at reasonable intervals. Referring to the judgments in the cases of Stanev (cited above) and Nataliya Mikhaylenko v. Ukraine (no. 49069/11, 30 May 2013), the applicant argued that he should have enjoyed the right of access to court to seek restoration of his legal capacity, which had been violated by the refusal to examine his request in 2014. Such lack of judicial review had seriously affected many aspects of his life and had not pursued any legitimate aim.", "(ii) The Government", "86. The Government denied that the applicant’s right of access to court had been violated.", "87. As regards the divorce and eviction proceedings, the Government submitted that at the time when the court had decided to stay those proceedings the psychiatric expert opinion had already been issued in respect of the applicant and the domestic court had been obliged by law to stay those proceedings, since the determination of the question of the applicant’s legal capacity was decisive for the examination of the divorce and eviction claim in terms of assessing the applicant’s ability to understand the meaning of his actions and to control them. After the applicant had been deprived of his legal capacity, his divorce and eviction claim had been withdrawn by his son, who had been appointed as his guardian in compliance with the requirements of domestic law and at the applicant’s wish. The withdrawal of the claim had pursued a legitimate aim because the applicant’s son, as his guardian, had been obliged to prevent the applicant from taking actions that could lead to severe consequences for others. Furthermore, the decision to terminate the divorce and eviction proceedings had not affected the applicant’s right of access to court because the applicant had had the possibility to re-submit his claim if he were to succeed in restoring his legal capacity or if a new guardian were appointed or his son so wished.", "88. As regards restoration of legal capacity the Government, referring to the proceedings which the applicant instituted after the Constitutional Court’s decision of 7 April 2015, submitted that the applicant had enjoyed full access to court in those proceedings. He had been able to avail himself fully of all the rights enjoyed by a party to the proceedings, including to be present, to have a lawyer and to lodge requests. As regards his request lodged in August 2014, the District Court lacked the authority to order a new medical examination due to the fact that the case regarding the applicant’s legal capacity had already been concluded by a final judgment. In any event, the request in question had not been a proper application lodged with a court and in order to complain about lack of access to court the applicant should at least have tried to lodge such an application first.", "(b) The Court’s assessment", "(i) General principles", "89. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal. This “right to a court”, of which the right of access is an aspect, may be relied on by anyone who considers on arguable grounds that an interference with the exercise of his or her civil rights is unlawful and complains that no possibility was afforded to submit that claim to a court meeting the requirements of Article 6 § 1 (see Stanev, cited above, § 229, and Nataliya Mikhaylenko, cited above, § 30).", "90. The right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access “by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals”. In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Stanev, cited above, § 230, and Nataliya Mikhaylenko, cited above, § 31).", "91. The Court has acknowledged in the past that restrictions on the procedural rights of a person who has been deprived of legal capacity may be justified for that person’s own protection, the protection of the interests of others and the proper administration of justice (see Stanev, cited above, § 241). It is for the State to decide how the procedural rights of a person who has been deprived of legal capacity should be ensured at domestic level. In this context, States should be able to take restrictive measures in order to achieve the above-mentioned aims (see Nataliya Mikhaylenko, cited above, § 36).", "(ii) Application of the above principles in the present case", "92. The Court notes at the outset that in the present case none of the parties disputed the applicability of Article 6 to the proceedings in question and the Court has no reason to hold otherwise (see Stanev, cited above, § 233, and Nataliya Mikhaylenko, cited above, § 33, as regards, in particular, proceedings for restoration of legal capacity). The Court will address the two instances of restrictions on the applicant’s access to court separately.", "(α) Access to court in divorce and eviction proceedings", "93. The Court notes that the applicant’s divorce and eviction claim lodged on 25 April 2012 was never examined by the domestic courts, as a result of the decision to declare him legally incapable and the eventual withdrawal of that claim by the applicant’s son, who acted as his guardian. In this respect, the Court reiterates that the right of access to a court includes not only the right to institute proceedings but also the right to obtain a determination of the dispute by a court (see, among other authorities, Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 86, 29 November 2016).", "94. The Court observes that, once declared incapable, the applicant no longer had legal capacity to act before the courts to pursue his divorce and eviction claim and, in accordance with Article 43 § 1 of the CCP and Article 33 § 2 of the CC, could do so only through his guardian. Thus, domestic law imposed a blanket ban on the applicant’s access to court in all spheres of life. Furthermore, as will be discussed below under Article 8 of the Convention, the domestic legal system did not differentiate between different degrees of incapacity for persons suffering from a mental disorder and did not provide for measures of protection tailored to the individual needs of the person concerned. Thus, such questions as to whether the applicant could understand the meaning of divorce or eviction and whether he could act autonomously in that sphere of life, including defending his rights before the courts, without causing disruption to the proper administration of justice or harm to himself or others, were never addressed and answered. Therefore, it is questionable whether such a blanket ban on the applicant’s access to court, which resulted in his inability to pursue his divorce and eviction claim, pursued any legitimate aim. The Court, however, does not find it necessary to answer that question conclusively since, even assuming that it did, the restriction on the applicant’s access to court was, in any event, unjustified in the particular circumstances of the case for the following reasons.", "95. The Court notes that Article 37 § 3 of the CC required the body of guardianship and trusteeship, which was responsible for the appointment of the applicant’s guardian, to take into account the nature of the relationship between the applicant and his potential guardian and, if possible, the applicant’s wish. Furthermore, the applicant himself applied to that body and requested that his opinion be taken into account when appointing his guardian (see paragraph 29 above). However, as it follows from the decision of the Court of Cassation of 28 September 2016, the body of guardianship and trusteeship failed to hear the applicant and appointed his son as his guardian, despite the fact that the applicant apparently had a conflictual relationship with his son and opposed his appointment. In this connection the Court stresses the importance of respecting Principle 8 of Recommendation No. R (99) 4 of the Committee of Ministers of the Council of Europe (see paragraph 71 above). It also refers to Article 12 § 4 of the CRPD which requires appropriate and effective safeguards ensuring that measures relating to the exercise of legal capacity by persons with disabilities be free of conflict of interest and undue influence (see paragraph 73 above) and which Armenia, by adhering to the CRPD, undertook to take into consideration (see Guberina v. Croatia, no. 23682/13, § 92, 22 March 2016). Those principles were of particular significance for the applicant in the present case since, being fully deprived of his legal capacity and, as a result, of his right of access to court, the only proper and effective means of protection of his legal interests before the courts was through a conflict-free guardianship.", "96. The Court further notes that, from the circumstances of the case, it is doubtful whether the applicant’s son was genuinely neutral and there was no conflict of interests as regards specifically the applicant’s claim filed against his wife seeking to divorce and evict her. In this connection the Court observes that the District Court failed to carry out any examination of the question of whether the applicant’s son’s request to withdraw the claim was in the applicant’s best interest and to provide any explanation for its decision to accept that request (see paragraphs 31 and 34 above). It is not clear on what ground the District Court stated that the applicant’s son had been appointed as the applicant’s guardian upon his consent and at his wish, a finding which, as already indicated above, was later rebutted by the Court of Cassation. The Court therefore considers that the domestic court failed to carry out the necessary scrutiny and oversight when deciding to accept the request to withdraw the applicant’s claim and that consequently the termination of the divorce and eviction proceedings was unjustified.", "97. Accordingly, there has been a violation of Article 6 § 1 of the Convention as regards the applicant’s access to court in the divorce and eviction proceedings.", "(β) Access to court for restoration of legal capacity", "98. The Court notes at the outset that the applicant’s complaint about lack of access to court for restoration of his legal capacity concerns only the period prior to the Constitutional Court’s decision of 7 April 2015 when the applicant, by virtue of Article 173 § 1 of the CCP, had no locus standi to apply directly to a court for restoration of legal capacity and could do so only through persons listed in that Article, including his guardian, a family member or the administration of a psychiatric institution. Furthermore, as already indicated above, under domestic law a person declared incapable could act before the courts only through his or her guardian.", "99. The Court has already examined a similar situation in the cases of Stanev and Nataliya Mikhaylenko, cited above, where it stated that the importance of exercising procedural rights would vary according to the purpose of the action which the person concerned intended to bring before the courts. In particular, the right to ask a court to review a declaration of incapacity was one of the most important rights for the person concerned since such a procedure, once initiated, would be decisive for the exercise of all the rights and freedoms affected by the declaration of incapacity (see Stanev, cited above, § 241, and Nataliya Mikhaylenko, cited above, § 37). This right was therefore one of the fundamental procedural rights for the protection of those who had been partially or fully deprived of legal capacity. Hence, such persons should in principle enjoy direct access to the courts in this sphere (see Stanev, cited above, § 241, and Nataliya Mikhaylenko, cited above, §§ 38-40).", "100. The Court has further held that the State remains free to determine the procedure by which such direct access is to be realised. At the same time, it would not be incompatible with Article 6 for national legislation to provide for certain restrictions on access to court in this sphere, with the sole aim of ensuring that the courts are not overburdened with excessive and manifestly ill-founded applications. Nevertheless, it seems clear that this problem may be solved by other, less restrictive means than automatic denial of direct access, for example by limiting the frequency with which applications may be made or introducing a system for prior examination of their admissibility on the basis of the file (see Stanev, cited above, § 242).", "101. As regards the situation in Armenia at the material time, the general prohibition on direct access to a court by persons declared incapable did not leave any room for exception. At the same time, the domestic law did not provide safeguards to the effect that the matter of restoration of legal capacity was to be reviewed by a court at reasonable intervals, despite the requirement of Article 12 § 4 of the CRPD that measures restricting legal capacity be subject to regular review by a competent authority (see paragraph 73 above). The Court also notes that such blanket prohibition on direct access to court was not in line with the general trend at European level. In particular, the comparative analysis conducted in the case of Stanev showed that seventeen of the twenty national legal systems studied provided at the time for direct access to the courts for persons who had been declared fully incapable (see Stanev, cited above, §§ 88-90 and 243). In the applicant’s case this situation was further exacerbated by the fact that the authorities had failed to ensure a conflict-free guardianship (see paragraph 95 above). Lastly, the Court considers it irrelevant whether the request lodged by the applicant in August 2014 could be considered as a “proper application lodged with a court” because, even assuming that it was not, the prohibition on the applicant’s access to court was enshrined in law and the applicant cannot be held accountable for not trying to initiate a procedure which he had no right to initiate by law.", "102. In the light of the above, the Court considers that the applicant’s inability to seek restoration of his legal capacity directly at the material time was disproportionate to any legitimate aim pursued.", "103. Accordingly, there has been a violation of Article 6 § 1 of the Convention as regards the applicant’s lack of access to court to seek restoration of his legal capacity.", "B. Proceedings concerning deprivation of the applicant’s legal capacity", "104. The Court observes at the outset that the applicant’s allegations of an unfair trial amount to two distinct arguments: firstly, that he was not heard by a court and, secondly, that the domestic courts based their decisions on an outdated psychiatric expert opinion. As regards the second argument, the Court considers that it falls to be examined under Article 8 of the Convention (see paragraph 124 below).", "1. The parties’ submissions", "105. The applicant submitted that the trial had not been fair since the case had been examined through “special procedure” which did not presuppose the existence of a dispute and of competing parties and were therefore not adversarial. While he had been present at the hearings of 3 October and 18 November 2013, his presence had been only a formality and his right to be heard had not been respected. Due to the special nature of the proceedings, he had not been allowed to argue his case, make submissions regarding his wife and son’s applications and contest the expert opinion, while the judge had not asked him any questions or inquired about his position, since he had been considered only an object of examination and not an interested party. The judgment of 29 November 2013 had been adopted after a hearing that lasted only a few minutes, during which the court read out the results of the psychiatric expert opinion and adopted its decision. He had therefore been deprived of the possibility to participate effectively in the proceedings.", "106. The Government submitted that the applicant had lost his victim status in relation to his complaint about the lack of an adversarial procedure. In particular, while he had initially been excluded from the hearing where the question of his legal capacity had been decided, that judgment had been reversed by the Civil Court of Appeal exactly on that ground, thereby correcting the shortcomings of the initial trial and ensuring the protection of the applicant’s rights. Following that decision the applicant had been granted the status of a third party and participated in the proceedings, during which he had enjoyed and exercised almost all the procedural rights of a party to the proceedings as provided by Article 35 § 2 of the CCP. He had been present at the hearings of 3 October and 18 November 2013, while failing to appear at the hearing of 31 October 2013 despite being duly notified. The final hearing of 29 November 2013 had lasted only several minutes since the examination of the case had already been completed at the hearing of 18 November 2013 and only the judgment had to be delivered during the final hearing. The applicant’s allegations that his participation had only been a formality were of a speculative nature and, even assuming that this had been the case, this should be attributed to the applicant and his inability to present his position rather than to any shortcomings in the conduct of the courts.", "2. The Court’s assessment", "107. The Court reiterates that in cases involving a mentally ill person the domestic courts should enjoy a certain margin of appreciation. Thus, for example, they can make the relevant procedural arrangements in order to secure the proper administration of justice, protection of the health of the person concerned, and so on. However, such measures should not affect the very essence of the applicant’s right to a fair trial as guaranteed by Article 6 of the Convention. In assessing whether or not a particular measure, such as exclusion of the applicant from a hearing, was necessary, the Court will take into account all relevant factors (see Shtukaturov, cited above, § 68).", "108. The Court further reiterates that the admissibility of evidence is primarily a matter for regulation by national law and that, as a general rule, it is for the national courts to assess the evidence before them (see Elsholz v. Germany [GC], no. 25735/94, § 66, ECHR 2000 ‑ VIII). The Court’s sole task in connection with Article 6 of the Convention is to examine applications alleging that the domestic courts have failed to observe specific procedural safeguards laid down in that Article or that the conduct of the proceedings as a whole did not guarantee the applicant a fair hearing (see Centro Europa 7 S.r.l. and Di Stefano, cited above, § 197).", "109. In the present case, the Court considers that the fact that the case was examined through a special procedure which did not presuppose the existence of competing parties is not sufficient in itself to find a violation of Article 6 and it is necessary to examine the particular circumstances of the proceedings in question. In this connection, the Court observes that the applicant was indeed initially excluded from the hearing at which the District Court decided to divest him of his legal capacity, since he was not a party to those proceedings (see paragraph 15 above). However, this shortcoming was remedied by the Civil Court of Appeal which quashed that judgment specifically on that ground and remitted the case for a fresh examination (see paragraph 20 above). During the new examination of the case the applicant was granted status as a third party, allowing him to enjoy all the main procedural rights of a party, including the right to be present, make submissions, lodge requests and appeal against decisions. As a result, the applicant was summoned and took part in almost all the hearings before the District Court (see, by contrast, Shtukaturov, cited above, § 69; X and Y v. Croatia, no. 5193/09, § 81, 3 November 2011; and Lashin v. Russia, no. 33117/02, § 82, 22 January 2013). Furthermore, contrary to the applicant’s claim, it follows from the materials of the case that he actually made submissions before the District Court and that questions were posed to him by the examining judge (see paragraph 24 above). The Court cannot therefore accept the applicant’s argument that his participation in the hearing was of a purely formal nature. The Court notes that the applicant did not provide any other, more specific arguments in support of his allegations of an unfair trial. In such circumstances, the allegations of an unfair trial and lack of adversarial procedure, as formulated by the applicant, are not sufficient for the Court to conclude that the conduct of the proceedings as a whole did not guarantee the applicant a fair hearing.", "110. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "111. The applicant complained that he had been deprived of his legal capacity in breach of the guarantees of Article 8 of the Convention, which provides as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "112. The Government submitted that the applicant had failed to raise the issue of proportionality of the interference with his Article 8 rights before the domestic courts. He had not indicated which particular element of the interference had not been respected in his case and had therefore failed to exhaust the domestic remedies.", "113. The applicant did not comment on the Government’s objection.", "114. The Court considers that the Government’s objection is closely linked to the substance of the applicant’s complaint and should therefore be joined to the merits.", "B. Merits", "1. The parties’ submissions", "115. The applicant submitted that his full deprivation of legal capacity was a disproportionate and inadequate measure. No tailor-made approach had been applied when deciding on that matter since the law did not provide for any intermediate form of limitation of legal capacity for mentally ill persons and the only choice was either to maintain full capacity or to deprive him of full capacity. Furthermore, the measure in question applied for an indefinite period of time, without a possibility to seek a review other than through his guardian, and resulted in complete loss of rights, including the ability to pursue his divorce and eviction claim against his wife. In depriving him of legal capacity, the courts had relied solely on an outdated medical report which did not reliably reflect his mental health at the material time. Moreover, it had lacked any explanation as to the kind of actions that his illness rendered him incapable of understanding or controlling. Nor did it establish the possible consequences of his illness on his social life, pecuniary interests and so on. The submissions made by his wife had been unreliable because she had had an interest in depriving him of legal capacity in order to prevent the examination of his divorce and eviction claim. Lastly, the applicant argued that the decision to deprive him of legal capacity did not pursue any legitimate aim.", "116. The Government submitted that the interference with the applicant’s Article 8 rights was prescribed by law, namely Article 31 of the CC. It pursued a legitimate aim, namely the protection of the rights of others, including the right to life of his wife, whom the applicant had threatened to stab. Lastly, the interference was proportionate since it was not based solely on the medical report but also on the submissions of his wife and neighbours, as well as the personal impressions of the judge who had heard the applicant in person. Furthermore, the applicant had the right to challenge the appointment of a guardian before the courts as well as, following the Constitutional Court’s decision of 7 April 2015, periodically to apply to a court to have his legal capacity restored.", "2. The Court’s assessment", "117. The Court notes at the outset that it is not in dispute between the parties that the applicant’s deprivation of his legal capacity amounted to an interference with his right to private life guaranteed by Article 8 and it does not see any reason to hold otherwise, especially in view of various serious limitations to the applicant’s personal autonomy which that measure entailed (see Shtukaturov, cited above, § 83, and Lashin, cited above, § 77).", "118. The Court reiterates that any interference with an individual’s right to respect for his private life will constitute a breach of Article 8 unless it was “in accordance with the law”, pursued a legitimate aim or aims under paragraph 2 and was “necessary in a democratic society” in the sense that it was proportionate to the aims sought.", "119. In the present case, the applicant did not allege that the interference had not been lawful and the Court notes that it was based on Article 31 of the CC. Furthermore, the Court does not find it necessary to examine whether the interference pursued a legitimate aim since the decision to deprive the applicant of his legal capacity was in any event disproportionate to any legitimate aim pursued for the reasons set out below.", "120. The Court reiterates that under Article 8 the authorities must strike a fair balance between the interests of a person of unsound mind and the other legitimate interests concerned. However, as a rule, in such a complex matter as determining somebody’s mental capacity, the authorities should enjoy a wide margin of appreciation. This is mostly explained by the fact that the national authorities have the benefit of direct contact with the persons concerned and are therefore particularly well placed to determine such issues. The task of the Court is rather to review under the Convention the decisions taken by the national authorities in the exercise of their powers in this respect (see Shtukaturov, cited above, § 87).", "121. At the same time, the margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake (see Elsholz, cited above, § 49). A stricter scrutiny is called for in respect of very serious limitations in the sphere of private life. In this connection the Court is mindful that depriving someone of legal capacity entails grave consequences for various spheres of that person’s life (see Shtukaturov, cited above, § 88; X and Y v. Croatia, cited above, § 109; and Lashin, cited above, § 81).", "122. In the present case the Court observes that, contrary to the Government’s claim, the judgment of 29 November 2013 declaring the applicant incapable relied solely on the psychiatric expert opinion of 25 September 2012 (see paragraph 25 above). The Court does not cast doubt on the competence of the doctors who examined the applicant and the findings of that report. However, the Court has held in a number of cases that the existence of a mental disorder, even a serious one, cannot be the sole reason to justify full deprivation of legal capacity. By analogy with the cases concerning deprivation of liberty, in order to justify full deprivation of legal capacity the mental disorder must be “of a kind or degree” warranting such a measure (see Shtukaturov, cited above, § 94, and Lashin, cited above, § 90). Both in Shtukaturov and Lashin the Court found that in the domestic proceedings the issue of “the kind and degree” of the applicant’s mental illness remained unresolved, since Russian law did not provide for any intermediate form of limitation of legal capacity for mentally ill persons and distinguished only between full capacity and full incapacity.", "123. In the present case the Court faces essentially the same situation as in the above-mentioned cases. The Armenian law similarly did not provide for any borderline or tailor-made response in situations like the applicant’s and distinguished only between full capacity and full incapacity. Thus, the questions posed to the doctors, as formulated by the judge, similarly did not concern “the kind and degree” of the applicant’s mental illness. As a result, the psychiatric expert opinion of 25 September 2012 did not analyse the degree of the applicant’s incapacity in sufficient detail. It referred to the applicant’s overly suspicious and at times aggressive behaviour, incoherent thoughts and inclination for conflict, and concluded that the applicant suffered from delusional disorder and was therefore unable to understand his actions and to control them. At the same time, the report did not explain what kind of actions the applicant was incapable of understanding or controlling. The incidence of the applicant’s illness is unclear, as are the possible consequences of the applicant’s illness for his social life, health, pecuniary interests, and so on. The opinion of 25 September 2012 was not sufficiently clear on these points. Nor did it allege any self-destructive or otherwise grossly irresponsible behaviour on the part of the applicant or that he was partially or completely unable to take care of himself (see, mutatis mutandis, Shtukaturov, cited above, §§ 93-94, and Lashin, cited above, §§ 90-91). Assuming, nevertheless, that the applicant’s condition required some sort measure of protection in his respect, the Court notes that, as already indicated above, the domestic court had no other choice than to apply and maintain full incapacity – the most stringent measure which meant total loss of autonomy in nearly all areas of life (see, by contrast, A. ‑ M.V. v. Finland, no. 53251/13, §§ 89-90, 23 March 2017).", "124. The Court also reiterates, as regards the relevant psychiatric expert opinion, that the objectivity of a medical expertise entails a requirement that it be sufficiently recent, while the question whether the medical expertise is sufficiently recent depends on the specific circumstances of the case (see Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 131, 4 December 2018). In the present case, the Court notes that the psychiatric expert opinion was issued on 25 September 2012, that is more than fourteen months before the judgment of the District Court declaring the applicant incapable and almost a year and a half before the decision of the Civil Court of Appeal upholding that judgment. That opinion, in the Court’s view, cannot be regarded as “up-to-date” within the meaning of Principle 12 of the above-mentioned Committee of Ministers Recommendation No. R (99) 4 (see, mutatis mutandis, H.F. v. Slovakia, no. 54797/00, § 41, 8 November 2005). Furthermore, it was the first time that the applicant had been subjected to a psychiatric medical examination, as he had no history of mental illness, and nothing in the case file suggests that the applicant’s condition was irreversible. The Court considers that, in such circumstances, the domestic courts should have sought some sort of fresh assessment of the applicant’s condition (see, mutatis mutandis, Lashin, cited above, §§ 83-84). The District Court, however, relied solely on that opinion without questioning whether it credibly reflected the applicant’s state of mental health at the material time, while the Civil Court of Appeal made reference to the absence of any evidence rebutting the findings of that report or suggesting that the applicant had recovered, despite the fact that it was the duty of the domestic courts to seek such evidence and, if necessary, to assign a new medical examination.", "125. In the light of the above, the Court concludes that the measure imposed on the applicant was disproportionate to the legitimate aim pursued. As a result, the applicant’s rights under Article 8 were restricted more than was strictly necessary.", "126. Having reached this conclusion, the Court considers it necessary to address the Government’s non-exhaustion objection. It notes, firstly, that while the applicant did not specifically use the word “proportionality” in his submissions before the domestic courts, he raised the question of the disproportionate nature of the interference in substance. Secondly, the Court notes that the full deprivation of the applicant’s legal capacity – a measure which the Court found to be disproportionate in the circumstances of the case – was, as already indicated above, the only measure which the domestic court was competent to apply under domestic law in the absence of any intermediate form of limitation of legal capacity for mentally ill persons. In other words, the domestic law itself deprived the domestic court of the possibility to assess the proportionality of the applicable measure in cases requiring a restriction of legal capacity. It is therefore doubtful that raising that issue, whether explicitly or in substance, had or could have had any prospects of success. In sum, the Court considers that the applicant has exhausted the domestic remedies and dismisses the Government’s objection.", "127. Accordingly, there has been a violation of Article 8 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "128. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "129. The applicant claimed 10,000 euros (EUR) in respect of non ‑ pecuniary damage.", "130. The Government submitted that the amount claimed by the applicant was excessive and should be reduced, should the Court find a breach of the applicant’s rights.", "131. The Court considers that the applicant has undoubtedly suffered non-pecuniary damage. Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant EUR 7,800 in respect of non-pecuniary damage.", "B. Costs and expenses", "132. The applicant claimed EUR 3,900 for the costs and expenses incurred for his representation before the Court, comprising 76 hours of legal services at a rate of EUR 50 per hour.", "133. The Government submitted that the applicant had failed to submit a contract with his representatives as a basis for the claim as regards costs and expenses. Therefore, they argued, the claim was unsubstantiated.", "134. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the absence of any document supporting the claim, the Court decides to reject the applicant’s claim for costs and expenses.", "C. Default interest", "135. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1976 and lives in Reykjanesbær. He was represented by Mr Daníel Isebarn Ágústsson, a lawyer practising in Reykjavik.", "3. The Government were represented by their Agent, Mr Einar Karl Hallvarðsson, State Attorney General.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "Domestic proceedings", "5. The applicant was left permanently paralysed from the chest down following an accident in 2002 and uses a wheelchair for mobility. In 2015 he, together with an association of people with spinal injuries, brought civil proceedings challenging a lack of wheelchair access in two buildings housing arts and cultural centres run by the applicant’s municipality. They sought a declaratory judgment that would require the defendants, Reykjanesbær, the municipality in which the applicant resides, and Reykjanesbær’s holding company, F., which owned one of the buildings in question, to improve accessibility in the two buildings in several specific ways.", "6. The first building, Duushús, comprises two adjoining houses built in 1877 and 1954-70 respectively. The three-storey tall building was extensively renovated between 2006 and 2014. It houses Reykjanesbær’s main arts and cultural centre. The plaintiffs demanded the installation of a wheelchair lift to enable access between the floors of the building; the installation of ramps between different galleries on the ground floor no steeper than 1:20, as required by building regulations; and changes to the threshold of the main entrance to enable wheelchair access.", "7. The second building, 88 Húsið, is a two-storey building originally built as an engine house in 1963, but has housed a youth centre run by the municipality since 2004. The plaintiffs demanded the installation of a wheelchair lift to enable access between the different floors of the building, the installation of ramps no steeper than 1:20 to enable access from the car park to the building and between the different rooms, and the creation of a disabled parking space within 25 metres of the entrance.", "8. In addition, the applicant demanded that the defendants be obliged to pay him 1,000,000 Icelandic krónur (ISK – approximately 7,300 euros (EUR) at the material time) for non-pecuniary damage suffered as a result of the lack of access.", "9. The plaintiffs argued that the buildings in question were not in compliance with the applicable building regulations and that this lack of access hindered the applicant, and other wheelchair users, from enjoying their private life on an equal basis with others, in violation of the Constitution, the European Convention on Human Rights (“the Convention”) and the United Nations Convention on the Rights of Persons with Disabilities (“the CRPD”).", "10. In the domestic proceedings the applicant requested that a court-appointed assessor draw up a report concerning specific elements of the accessibility of the buildings. As regards Duushús, the assessor established the following: (1) that there was no lift between the floors of the building, (2) that there was a ramp between the two halls on the ground floor of the building with an incline of approximately 1:7 and a width of 96-161 cm, and (3) that there was a 51 mm high threshold at the main entrance to the building. As regards 88 Húsið, the assessor established the following: (1) that there was no lift between the floors of the building, (2) that there was no lift or ramp between the different halls of the building, (3) that there was a ramp with an incline of approximately 1:9 between the car park and the entrance to the building, and (4) that there was no designated disabled parking space by the building’s entrance.", "11. The Reykjanes District Court delivered a judgment in favour of the defendants on 24 November 2016. It found that access to the two buildings was in need of improvements, but that this did not violate the applicable building regulations as both buildings had been built prior to those regulations taking effect. Nevertheless, the municipality was under a legal obligation to work towards improving wheelchair access to public buildings and institutions providing public services, and the court noted that the municipality had rolled out an initiative to improve access. In this regard, the court found that municipalities had a margin of appreciation in the prioritisation of such projects, and that the separation of powers hindered the courts from deciding that the authorities were under an obligation to take certain action in areas where the authorities had such discretion.", "12. The plaintiffs appealed against that judgment to the Supreme Court. In their written submissions to that court, they did not rely explicitly on the Convention, but they did refer to the submissions and legal arguments made in their civil claim (see paragraph 9 above) and relied explicitly on the principle of equality and non-discrimination. By a judgment of 25 October 2018, the Supreme Court upheld the District Court’s conclusion.", "13. The Supreme Court noted that the CRPD had been ratified but not incorporated into domestic law, and that therefore the plaintiffs could not rely directly on its provisions, although domestic law had to be interpreted harmoniously with the State’s international legal obligations in so far as possible.", "14. The Supreme Court made reference to the District Court’s description of the measures taken by Reykjanesbær with respect to improving accessibility (see paragraph 11 above) and held that the municipality had complied with its legal obligation to devise a strategy for improving access to public buildings and public service institutions in accordance with the applicable legislation, which had been enacted taking into account the State’s international human rights obligations, including under the CRPD. Furthermore, that strategy had been put into action by Reykjanesbær, which had taken steps to improve access to certain public buildings.", "15. The Supreme Court noted that responsibility for matters relating to people with disabilities had been transferred from the State to the municipalities in 2010. Under the Constitution, municipalities had autonomy in the matters entrusted to them by law, as well as in the use of their funds. Municipalities were therefore the only entities competent to decide on the kinds of improvements which the plaintiffs had demanded, and had a wide margin of appreciation in how to prioritise the allocation of funds available to them in pursuit of their goal of improving access. The Supreme Court’s reasoning did not address the Convention or the plaintiffs’ arguments that the lack of access violated the principle of equality and non-discrimination." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "Domestic law and practice", "16. Article 65 of the Icelandic Constitution establishes a general right to equality. Article 71 establishes a right to respect for private and family life, home and correspondence. Article 76 stipulates that a right to assistance shall be guaranteed by law to anyone who needs it due to illness, disability, age, unemployment, poverty or other similar situations. Article 78 of the Constitution establishes that municipalities manage their affairs independently as laid down by law.", "17. Act no. 59/1992 on the Affairs of Persons with Disabilities (“the Disabilities Act”), as applicable at the material time, stipulated that municipalities were responsible for the organisation and implementation of services for disabled people, including the quality and cost of the services (section 4). Municipalities were obligated to address mobility issues of disabled people in an organised manner, including by preparing plans for improving the accessibility of public buildings and service institutions in accordance with the provisions of the Construction Act ( mannvirkjalög ) and the Planning Act ( skipulagslög ), and the regulations made thereunder (section 34).", "18. Pursuant to Temporary Provision XIII of the Disabilities Act, Parliament approved the Minister of Welfare’s proposal for a parliamentary resolution on an action plan on matters concerning persons with disabilities for 2012-2014. The action plan, which referred to the CRPD and Iceland’s other international human rights obligations, called for each municipality to conduct an audit of the accessibility of public buildings, traffic infrastructure and other places accessible to the public. Subsequently, a plan for improvements would be drawn up wherever needed.", "INTERNATIONAL MATERIALCouncil of Europe texts", "Council of Europe texts", "Council of Europe texts", "19. The Council of Europe’s Disability Strategy 2017-2023, entitled “Human Rights: A reality for all”, was adopted by the Committee of Ministers on 30 November 2016. It lists accessibility as one of its rights-based priority areas. It states, inter alia :", "“36. Accessibility challenges can be avoided or greatly diminished through intelligent and not necessarily costly applications of the universal design, which benefits everyone. In addition to necessary accessibility measures related to groups, individual barriers can further be overcome by individually tailored reasonable accommodation. Denial of reasonable accommodation as well as denial of access can constitute discrimination. Both of these concepts are defined and described in the UNCRPD (Articles 2 and 4).", "37. Universal design and the promotion and development of affordable assistive technologies, devices and services aimed at removing existing barriers should be increasingly promoted. They need to be taken into consideration in all work within the Council of Europe and at national and local levels, including in the work of independent monitoring mechanisms.”", "20. In its Recommendation 1592 (2003), entitled “Towards full social inclusion of persons with disabilities”, the Parliamentary Assembly stated that some of the fundamental rights contained in the Convention were still inaccessible to many people with disabilities, including the right to private and family life, and emphasised that guaranteeing access to equal political, social, economic and cultural rights should be a common political objective in the decade that followed.", "21. In its Resolution 1642 (2009), entitled “Access to rights for people with disabilities and their full and active participation in society”, the Parliamentary Assembly invited member States to make the environment of their societies, including social and cultural venues, genuinely accessible to people with disabilities, including by ensuring that every new structure conformed to universal design principles and removing any obstacles in public buildings and indoor and outdoor public areas.", "22. In its “Recommendation Rec(2006)5 on the Council of Europe Action Plan 2006-2015 to promote the rights and full participation of people with disabilities in society”, the Committee of Ministers recommended that member States integrate the principles and actions set out in the Action Plan in their policy, legislation and practice. The Action Plan stated, inter alia, that people with disabilities had a right to be fully integrated into society, including participating in its cultural life. It further pointed out that there was “no easy route” to attaining the goal of access and involvement in the arts and social life, that ultimately the enactment of specific legislation might be required, and that such legislation should reflect the concept of “reasonable adjustment” especially in the context of access to older buildings or historic monuments and smaller private business premises.", "23. Article 15 of the revised European Social Charter, which Iceland has signed but not ratified, is set out in Béláné Nagy v. Hungary ([GC], no. 53080/13, § 35, 13 December 2016).", "United Nations texts", "24. Article 27 of the Universal Declaration of Human Rights stipulates:", "“1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.", "...”", "25. The relevant parts of the United Nations Convention on the Rights of Persons with Disabilities (“the CRPD”), which Iceland has ratified, are set out in Guberina v. Croatia (no. 23682/13, § 34, 22 March 2016). The following provisions are also particularly relevant to the present case:", "Article 2", "Definitions", "“For the purposes of the present Convention:", "...", "‘Reasonable accommodation’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;", "...", "Article 9", "Accessibility", "...", "2. States Parties shall also take appropriate measures:", "a) To develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public;", "b) To ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities;", "...", "e) ..., to facilitate accessibility to buildings and other facilities open to the public;", "...", "Article 30", "Participation in cultural life, recreation, leisure and sport", "1. States Parties recognize the right of persons with disabilities to take part on an equal basis with others in cultural life, and shall take all appropriate measures to ensure that persons with disabilities:", "...", "c) Enjoy access to places for cultural performances or services, such as theatres, museums, cinemas, libraries and tourism services, and, as far as possible, enjoy access to monuments and sites of national cultural importance.", "...", "5. With a view to enabling persons with disabilities to participate on an equal basis with others in recreational, leisure and sporting activities, States Parties shall take appropriate measures:", "...", "c) To ensure that persons with disabilities have access to sporting, recreational and tourism venues;", "...”", "26. In its General Comment No. 2 (2014) on Article 9: Accessibility, 22 May 2014, UN Doc. CRPD/C/GC/2, the CRPD Committee noted the following:", "“1. Accessibility is a precondition for persons with disabilities to live independently and participate fully and equally in society. Without access to the physical environment, to transportation, to information and communication, including information and communications technologies and systems, and to other facilities and services open or provided to the public, persons with disabilities would not have equal opportunities for participation in their respective societies ...", "...", "13. ... It is important that accessibility is addressed in all its complexity, encompassing the physical environment, transportation, information and communication, and services. The focus is no longer on legal personality and the public or private nature of those who own buildings, transport infrastructure, vehicles, information and communication, and services. As long as goods, products and services are open or provided to the public, they must be accessible to all, regardless of whether they are owned and/or provided by a public authority or a private enterprise. Persons with disabilities should have equal access to all goods, products and services that are open or provided to the public in a manner that ensures their effective and equal access and respects their dignity. This approach stems from the prohibition against discrimination; denial of access should be considered to constitute a discriminatory act, regardless of whether the perpetrator is a public or private entity ...”", "27. In its General Comment No. 6 (2018) on equality and non-discrimination, 26 April 2018, UN Doc. CRPD/C/GC/6 the CRPD Committee noted the following:", "“40. Accessibility is a precondition and a means to achieve de facto equality for all persons with disabilities. For persons with disabilities to effectively participate in the community, States parties must address accessibility of the built environment, public transport, as well as information and communication services, which must be available and usable for all persons with disabilities on an equal basis with others ...", "41. As noted above, accessibility and reasonable accommodations are two distinct concepts of equality laws and policies:", "(a) Accessibility duties relate to groups and must be implemented gradually but unconditionally;", "(b) Reasonable accommodation duties, on the other hand, are individualized, apply immediately to all rights and may be limited by disproportionality.", "42. Because the gradual realization of accessibility in the built environment, public transportation and information and communication services may take time, reasonable accommodation may be used as a means to provide access to an individual in the meantime, as it is an immediate duty. The Committee calls upon States parties to be guided by its general comment No. 2 (2014) on accessibility.”", "THE LAW", "PRELIMINARY REMARKS", "28. The present case concerns the lack of access for the applicant, who uses a wheelchair, to two particular public cultural and social buildings. The Court has hitherto had a few occasions to address issues relating to access to buildings and other public facilities and its implications for private life (see Botta v. Italy, 24 February 1998, Reports of Judgments and Decisions 1998 ‑ I; Zehnalová and Zehnal v. the Czech Republic (dec.), no. 38621/97, ECHR 2002 ‑ V; Glaisen v. Switzerland (dec.), no. 40447/13, 25 June 2019; and Neagu v. Romania (dec.), no. 49651/16, 29 January 2019). The Commission has addressed accessibility issues in the context of the right to education (see McIntyre v. the United Kingdom (dec.), no. 29046/95, 21 October 1998), and the Court has in a similar vein addressed issues relating to accommodation for people with disabilities in education (see Enver Şahin v. Turkey, no. 23065/12, 30 January 2018; G.L. v. Italy, no. 59751/15, 10 September 2020; and Çam v. Turkey, no. 51500/08, 23 February 2016). The Court has also examined complaints relating to access to polling stations in relation to the right to vote (see Toplak and Mrak v. Slovenia, nos. 34591/19 and 42545/19, 26 October 2021, and Mółka v. Poland (dec.), no. 56550/00, 11 April 2006) and accommodation of housing requirements (see Guberina, cited above).", "ACCESSIBILITY OF THE BUILDINGS", "29. As a preliminary point, the Court notes that the actual accessibility of the buildings in question is disputed between the parties.", "30. The Court reiterates that where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. In this regard, the Court notes that the domestic courts considered it established that there was at least some lack of access to both buildings at the material time (see paragraph 11 above). Moreover, it is clear from the court-appointed assessor’s report that accessibility was not ensured to the standard required by the building regulations at the time, including concerning threshold heights and ramp slopes (see paragraph 10 above).", "31. The Court’s assessment will therefore proceed on the same basis as that of the findings made by the domestic courts that the accessibility of both buildings was insufficient. Moreover, as will be explained below (see paragraph 63 below), although subsequent improvements to accessibility are not decisive for the Court’s assessment, it will have some regard to these improvements in its assessment of the matter.", "ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, read in conjunction with article 8", "32. The applicant complained of a violation of his right under Article 14 of the Convention, in conjunction with Article 8. The provisions, in so far as relevant, read as follows:", "Article 8", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... or other status.”", "AdmissibilityExhaustion of domestic remedies", "Exhaustion of domestic remedies", "Exhaustion of domestic remedies", "(a) The parties’ submissions", "33. The Government submitted that the complaint was inadmissible for failure to exhaust domestic remedies as the applicant had insufficiently raised his rights under the Convention at national level, instead relying primarily on the CRPD.", "34. The applicant disagreed, submitting that his written submissions to the Reykjanes District Court had sufficiently invoked the Convention rights under which he was now complaining to the Court.", "(b) The Court’s assessment", "35. Article 35 § 1 of the Convention requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 71, 25 March 2014). In making use of such a remedy, the applicant must raise the complaint, if not explicitly by referring to the Convention, then “at least in substance”. This means that the applicant must raise legal arguments to the same or like effect on the basis of domestic law, in order to give the national courts the opportunity to redress the alleged breach (see Hanan v. Germany [GC], no. 4871/16, § 148, 16 February 2021).", "36. The Court notes that the applicant referred explicitly to the Convention in his written submissions to the Reykjanes District Court, as well as to his right to enjoyment of private and family life and his wish to have access, on an equal basis with other residents of the municipality, to the buildings in question. His written submissions to the Supreme Court referred to the submissions before the District Court and explicitly relied on his equal right to enjoy the services provided in the buildings in question. Although the written submissions to the Supreme Court did not explicitly refer to the relevant provisions of the Convention, it is clear that the applicant invoked in substance the rights on which he is now relying at both levels of jurisdiction sufficiently to allow the national courts the opportunity to address his complaints.", "37. The complaint is therefore not inadmissible for failure to exhaust domestic remedies.", "Applicability of Article 14 of the Convention taken in conjunction with Article 8", "(a) The parties’ submissions", "38. The Government submitted that the issue of accessibility to the buildings in question did not fall under the scope of the term “private life” within the meaning of Article 8, and that Article 14 could not therefore apply in the case. The Government submitted that there could be no conceivable link between the measures which the applicant had urged the respondent State to take and his private life. They further submitted that the lack of access had not prevented him from leading his life in a manner which respected his right to personal development. In this regard, the Government insisted that the buildings in question were partially accessible to the applicant, and that he also had general access to cultural events in his region. Therefore, in their view, the matter under consideration did not come within the scope of the applicant’s “private life”.", "39. The applicant contested the Government’s submissions. He submitted that his access to the buildings had a significant impact on his inclusion in, or exclusion from, the cultural and social life of his local community. He argued that no similar cultural or social venues in the municipality were accessible to him. He submitted that the public authorities sponsored, at least in part, the activities and events in the two buildings for the very purpose of allowing local residents to further their personal development and relationships, and that he had demonstrated his real and individual interest in participating in these services and activities. This, he maintained, was evidenced by the domestic courts granting him locus standi, thereby acknowledging that he had a direct, individual and legally protected interest in the subject matter.", "(b) The Court’s assessment", "40. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. However, the application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention, and to this extent it is autonomous. A measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may, however, infringe that Article when read in conjunction with Article 14 for the reason that it is of a discriminatory nature. Accordingly, for Article 14 to become applicable, it is enough that the facts of the case fall “within the ambit” of another substantive provision of the Convention or its Protocols (see, among many other authorities, Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 53, 24 January 2017, and Fabris v. France [GC], no. 16574/08, § 47, ECHR 2013 (extracts)).", "41. In this connection, the Court has on many occasions held that the notion of “private life” within the meaning of Article 8 is a broad concept which does not lend itself to exhaustive definition. It covers the physical and psychological integrity of a person and, to a certain extent, the right to establish and develop relationships with other human beings. It can sometimes embrace aspects of an individual’s physical and social identity and the right to “personal development” or the right to self-determination (see Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 159, 24 January 2017).", "42. In the context of accessibility, the Court has held that Article 8 of the Convention comes into play only in exceptional cases, where the applicant’s lack of access to public buildings and buildings open to the public affects his or her life in such a way as to interfere with his or her right to personal development and right to establish and develop relationships with other human beings and the outside world (see Zehnalová and Zehnal, cited above).", "43. The Court notes that in the cases of Botta, Zehnalová and Zehnal and Glaisen (all cited above), it found that the lack of wheelchair access of which the applicants complained did not fall within the ambit of private life and therefore held that Article 14, read in conjunction with Article 8, was inapplicable. In Botta, the applicant complained that the respondent State had failed to take action to enable him to access a particular private beach in a municipality distant from his normal place of residence. The Court held that the matter concerned interpersonal relations of such broad and indeterminate scope that there could be no conceivable direct link between the measures the State had been urged to take in order to make good the omissions of the private bathing establishments and the applicant’s private life. In Zehnalová and Zehnal, the applicants complained that their municipality had failed to act to ensure access for the first applicant to 174 buildings which were either public or open to the public. The Court recognised that States might have a positive obligation to ensure access to public buildings or buildings open to the public if a lack of access affected a person’s life in such a way as to interfere with his or her right to personal development and right to establish and develop relationships with other human beings and the outside world. However, noting the large number of buildings identified by the applicants, the Court found that they had failed to give precise details of the obstacles created by the lack of access, and that the first applicant had failed to demonstrate a special link between the lack of access and her private life. In Glaisen, the applicant complained that he had been unable to access a particular privately owned and operated cinema. The Court found that, considering that only around 10 to 12% of films had been exclusively screened in the cinema in question, and that other local cinemas had been accessible to the applicant, the matter had not affected his life in such a way as to interfere with his right to personal development or to establish and develop relationships. The Court furthermore notes that in Neagu, cited above, the Court held that, even assuming that Article 8 was applicable to the applicant’s complaints about obstruction of access to her residential building, her application was manifestly ill-founded.", "44. In the present case, however, the Court considers the situation should be distinguished from that in the above-mentioned cases. Unlike the situation in Botta, the accessibility issue in the present case concerns buildings owned and/or operated by and located in the applicant’s own municipality. Unlike the situation in Zehnalová and Zehnal, the applicant has identified a small, clearly defined number of buildings where access is lacking and explained how the lack of access to each of those buildings has affected his life (see paragraph 39 above). Unlike the situation in Glaisen, the present case does not concern merely one of several similar, privately run cultural venues. Duushús is, by the Government’s own description, the municipality’s “main arts and cultural centre”, and it is not evident that the applicant could access similar cultural and social events and services at other venues in his municipality. According to questionnaires completed by the directors of Duushús and 88 Húsið and submitted by the Government, no other buildings in the municipality were available which had an equivalent purpose. Admittedly, 88 Húsið is primarily aimed at children and teenagers, but it is nevertheless a public building whose hall is rented out for activities and events, including those which can be attended by parents.", "45. The applicant here has thus clearly identified two particular buildings which are publicly owned and/or operated and which appear to play an important role in local life in his municipality, which is home to fewer than 20,000 inhabitants. According to the applicant, the lack of access to Duushús has hindered his participation in a substantial part of the cultural activities that his community has to offer, and the lack of access at 88 Húsið has hindered him from attending birthday parties and other social events with his children (see paragraph 48 below).", "46. The Court is conscious of the importance of enabling people with disabilities to fully integrate into society and participate in the life of the community, which has been emphasised by the Council of Europe and has led to significant developments in European and international standards. As noted by the CRPD Committee (see paragraph 27 above), accessibility is a precondition for people with disabilities to live independently and participate fully and equally in society. Without access to the physical environment and to other facilities and services open or provided to the public, people with disabilities would not have equal opportunities for participation in their respective societies. Against this background, and in the light of the circumstances of the case, the Court is satisfied that the matter at issue was liable to affect the applicant’s right to personal development and right to establish and develop relationships with other human beings and the outside world. Consequently, the matter under consideration falls within the ambit of “private life” within the meaning of Article 8 of the Convention. It follows that Article 14, taken together with Article 8, is applicable.", "(c) Conclusions as to the admissibility", "47. In the light of the above, the complaint is neither inadmissible for failure to exhaust domestic remedies nor manifestly ill-founded or inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicant", "48. The applicant submitted that the lack of accessibility to the two buildings had hindered his personal development and right to establish and develop relationships with his community. Due to the lack of access to Duushús, he was unable to attend cultural events, art exhibitions, concerts and other events taking place there. As this was the primary location for such events in the municipality, this had severely hindered the applicant’s participation in society and put him on an uneven footing with other inhabitants of the municipality. As regards the lack of access to 88 Húsið, although the applicant acknowledged that its activities were primarily aimed at children and young people, the premises were frequently rented out for birthday parties and other similar events. The lack of access, in his view, had prevented him from accompanying his children to such events, which other parents were able to do.", "49. The applicant further submitted that the test which the Court should apply was not whether the State was obligated to overcome de facto discrimination due to a lack of wheelchair accessibility, but rather whether it was free in the first place to offer cultural services which, by virtue of where they were offered, were not accessible to wheelchair users. This, the applicant submitted, placed a lesser burden on the State, not requiring it to remedy any lack of accessibility in private establishments, but merely to refrain from offering public services in inaccessible buildings.", "50. Furthermore, the applicant emphasised that the domestic courts had failed to engage in an exercise of balancing the relevant rights and assessing the sufficiency of the measures taken. Instead, the Supreme Court’s conclusion had been based solely on its finding that the municipality alone was competent to decide how to prioritise its funds in this regard.", "(b) The Government", "51. The Government submitted that the applicant had not suffered discrimination contrary to Article 14 as reasonable accommodation measures had been taken to enable him to enjoy his rights on an equal basis with others. They further submitted that obligations to ensure accessibility were of a gradual nature and that the State had fulfilled these obligations by putting in place initiatives to improve access (see paragraph 18 above) and beginning to implement these initiatives. The Supreme Court’s finding, that the municipality alone was competent under the Constitution to decide on accessibility projects and improvements and had to be afforded room to manoeuvre in the prioritisation of funds, bore scrutiny because prioritising accessibility projects was inevitable and Reykjanesbær’s plans for improvements had been extensive and already partially implemented.", "52. The Government noted that Reykjanesbær had, in 2012, commissioned an audit of its public and publicly accessible buildings. Subsequently, a plan for improvements had been drawn up. In 2014, a budget of ISK 24 million had been allocated to improving accessibility. A further ISK 2 million had been allocated to accessibility improvements in 2015 and the municipality had planned to allocate ISK 10 million in 2016, but no information on the actual allocation in 2016 was submitted. The Government further submitted that due to the need to prioritise funds available for accessibility improvements, priority was given to improvements in administrative buildings, schools, sports halls and other educational facilities. Moreover, the Government emphasised that the buildings in question were protected under legislation on cultural heritage due to their age, and that any improvements had to respect their integrity and history.", "53. The Government contended that the two buildings in question were not the only cultural and social venues in the municipality and submitted an overview of the other public and private cultural and social buildings in the municipality containing photographs of the entrances to the buildings and assertions that many of them had “very good access” for wheelchairs. They argued that the applicant thus had other opportunities to enjoy his private life and participate in his community than those provided in the two buildings.", "54. The Government submitted that the applicant had not demonstrated his need to use the two buildings on a daily basis to exercise his right to personal development and right to develop and maintain relationships with other members of his local community. Overall, the conclusion of the Supreme Court had constituted a fair balance between the general interest of the municipality on the one hand, and the applicant’s interest in enjoying “perfect accessibility” to the two buildings in question on the other.", "The Court’s assessment", "(a) General principles", "55. The Court reiterates that “discrimination” means treating differently, without an objective and reasonable justification, people in relevantly similar situations, and that a difference in treatment is devoid of any “objective and reasonable justification” where it does not pursue a “legitimate aim” or there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see Enver Şahin v. Turkey, no. 23065/12, § 54, 30 January 2018).", "56. However, the Court reiterates that this is not the only facet of the prohibition of discrimination under Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently people whose situations are significantly different (see J.D. and A. v. the United Kingdom, nos. 32949/17 and 34614/17, § 84, 24 October 2019, with further references, notably Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000‑IV). In this context, a certain threshold is required in order for the Court to find that the difference in circumstances is significant. For this threshold to be reached, a measure must produce a particularly prejudicial impact on certain people as a result of a protected ground, attaching to their situation and in light of the ground of discrimination invoked (see Ádám and Others v. Romania, nos. 81114/17 and 5 others, § 87, 13 October 2020, and Napotnik v. Romania, no. 33139/13, § 73, 20 October 2020). As the effective enjoyment of many of the Convention rights by people with disabilities may require the adoption of various positive measures by the relevant State authorities (see Mółka v. Poland (dec.), no. 56550/00, ECHR 2006‑IV), this threshold of significance must likewise be attained when an applicant alleges the existence of discrimination due to a lack of positive measures by the respondent State (see Toplak and Mrak, cited above, § 111).", "57. The Court also notes that the Convention should, as far as possible, be interpreted in harmony with other rules of international law of which it forms part (see Enver Şahin, cited above, § 53), and that therefore the provisions regarding the rights of people with disabilities set out in the CRPD should, along with other relevant material (see paragraphs 25-27 above), be taken into consideration. The Court observes, in this connection, that in its General Comment No. 2 the CRPD Committee noted that the denial of access of people with disabilities to, inter alia, facilities and services open to the public should be viewed within the context of discrimination (see paragraph 26 above and Toplak and Mrak, cited above, § 112). The Court itself has previously held there to be a European and worldwide consensus on the need to protect people with disabilities from discriminatory treatment (see Glor v. Switzerland, no. 13444/04, § 53, ECHR 2009).", "58. The States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify different treatment (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 76, ECHR 2013, and Toplak and Mrak, cited above, § 113). The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background, but the final decision as to the observance of the Convention’s requirements rests with the Court (see Biao v. Denmark [GC], no. 38590/10, § 93, 24 May 2016). A wide margin is usually allowed to the State when it comes to general measures of economic or social strategy (ibid.). The Court considers that when a claim is made concerning a lack of access of public buildings within the context of the right to respect for private and family life, a similarly wide margin of appreciation should be afforded to the State. However, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved (see Enver Şahin, § 55, and Glor, § 75, both cited above).", "59. In previous cases concerning the rights of people with disabilities, the Court, referring to the CRPD, has found that Article 14 of the Convention has to be read in the light of the requirements of those texts regarding “reasonable accommodation” – understood as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case” – which people with disabilities are entitled to expect in order to ensure “the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms” (Article 2 of the CRPD, see paragraph 25 above). Such reasonable accommodation helps to correct factual inequalities which are unjustified and which therefore amount to discrimination (see Çam, § 65, and Toplak and Mrak, § 114, both cited above). The Court finds that these considerations apply equally to the participation of people with disabilities in social and cultural life. It notes, in this regard, that Article 30 of the CRPD explicitly requires the States Parties to guarantee to people with disabilities the opportunity to take part on an equal basis with others in cultural life (see paragraph 25 above).", "(b) Application of these principles to the present case", "(i) Establishing the framework of the assessment", "60. At the outset, the Court considers that the present case should be considered from the viewpoint of whether or not the national authorities complied with their positive obligation to take appropriate measures to enable the applicant, whose mobility is impaired due to disability, to exercise his right to private life on an equal basis with others. Therefore, and taking account of the facts of the present case, the Court makes clear that for this assessment the test to be applied is limited to examining whether the State made “necessary and appropriate modifications and adjustments” to accommodate and facilitate persons with disabilities, like the applicant, which, at the same time, did not impose “a disproportionate or undue burden” on the State (see paragraph 59 above).", "61. As established above, the Court considers that the lack of accessibility in the buildings in question was liable to affect the applicant’s right to personal development and right to establish and develop relationships with other human beings and the outside world (see paragraphs 44-46 above). As the Court held in Guberina (cited above, § 92), by adhering to the requirements set out in the CRPD the respondent State undertook to take its relevant principles into consideration, such as reasonable accommodation, accessibility and non-discrimination against people with disabilities with regard to their full and equal participation in all aspects of social life (see paragraphs 25-27 above). The Court will therefore proceed to assess whether the respondent State has fulfilled its duty to accommodate the applicant, as a person with disabilities, in order to correct factual inequalities, applying the test as outlined above (see paragraph 60).", "(ii) The Court’s analysis", "62. The Court observes that the domestic courts, in their judgments in the applicant’s case, did not explicitly recognise and assess the rights and interests of the applicant at stake, instead deciding the case primarily on the grounds of the discretion granted to the municipalities in allocating their funds and prioritising their projects. As a result, the Court does not, in its assessment of the merits of the case, benefit from a prior assessment by the national courts of the balancing of the competing interests and whether sufficient steps had been taken to accommodate the accessibility needs of people with disabilities, including the applicant.", "63. Nevertheless, taking account of the nature and limited scope of its assessment, as described above, and the State’s wide margin of appreciation, (see paragraphs 58-59 above), the Court is not convinced that the lack of access to the buildings in question amounted to a discriminatory failure by the respondent State to take sufficient measures to correct factual inequalities in order to enable the applicant to exercise his right to private life on an equal basis with others. The Court notes, in this regard, that considerable efforts seem to have been made to improve accessibility of public buildings and buildings with public functions in Reykjanesbær following the parliamentary resolution of 2011 (see paragraph 18 above). In deciding on those improvements, the municipality prioritised improving accessibility to educational and sports facilities, which is neither an arbitrary nor unreasonable strategy of prioritisation, also considering the emphasis which the Court has placed on access to education and educational facilities in its case-law (see Enver Sahin and Çam, both cited above). Further accessibility improvements which have since been made, although not decisive for the assessment of the present case (see paragraph 31 above), nevertheless demonstrate a general commitment to work towards the gradual realisation of universal access in line with the relevant international materials (see paragraphs 22 and 27 above). The Court thus accepts that, in the circumstances of the present case, imposing on the State a requirement under the Convention to put in place further measures would have amounted to imposing a “disproportionate or undue burden” on it within the context of its positive obligations established by the Court’s case-law (see paragraph 59 above) to reasonably accommodate the applicant.", "64. Therefore, in conclusion, the Court finds that the respondent State and Reykjanesbær took considerable measures to assess and address accessibility needs in public buildings, within the confines of the available budget and having regard to the cultural heritage protection of the buildings in question (see paragraphs 51-52 above). The Court reiterates that the scope of its assessment was limited to whether the respondent State had complied with its positive obligations by taking sufficient measures to correct factual inequalities impacting the applicant’s equal enjoyment of his right to private life. In the light of the above and considering the measures already undertaken, the Court concludes that the applicant was not discriminated against in the enjoyment of his right to respect for private life.", "65. There has, accordingly, been no violation of Article 14 read in conjunction with Article 8 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1946 and lives in Zagreb. She has suffered since her early childhood from cerebral palsy and uses a wheel chair. In 1968 she was deprived of her legal capacity on account of “her physical illness and intellectual underdevelopment”. On 10 July 1979 her legal capacity was fully restored by a ruling of the Zagreb Municipal Court.", "7. On 12 November 2009 the Pešćenica Social Welfare Centre (hereinafter “the Centre”) asked the Zagreb Municipal Court to institute proceedings with a view to partially depriving the applicant of her legal capacity in order to prevent her from disposing of her assets. They relied on a previous ruling of 1968 by the same court by which the applicant had been deprived of her legal capacity (see the preceding paragraph). They further asserted that the applicant had been suffering from “ grave bodily damage ” ( velika tjelesna oštećenja ) since early childhood, as she had been diagnosed with cerebral palsy and various chronic illnesses such as diabetes, high blood pressure and defective eyesight.", "8. They further asserted, relying on a statement given by the applicant ’ s son at the Centre and a report by the Centre ’ s social worker, that the applicant ’ s condition had worsened after she had undergone an operation on her head on 9 September 2008. Since then she had suffered from personality changes, manifested in managing her money in an irrational manner, such as by not paying the monthly instalments for the purchase of her flat, electricity, water and other bills, and by purchasing mobile telephone cards instead of food. This could have led to the applicant ’ s eviction from the flat she occupied, as she had already received a final warning that a civil action in that respect was to be lodged.", "9. The Centre ’ s request was supported by evidence, such as an electricity bill of 27,625.70 Croatian kunas (HRK) dated 30 March 2009, a copy of a final demand for payment of monthly instalments for the purchase of the applicant ’ s flat, with the debt amounting to HRK 8,290.25 as at 7 March 2009, a notice that the water supply for the applicant ’ s flat would be stopped as of 25 May 2009 on account of non-payment of a debt in the amount of HRK 4,447.42, and a debt recovery notice for the amount of HRK 451.70 payable to Croatian Radio and Television (HRT).", "10. On 28 October 2009 the Centre appointed its employee, Ms J.T., as the applicant ’ s legal guardian in the proceedings before the Zagreb Municipal Court. In the proceedings before that court the guardian gave her full consent to the Centre ’ s application. The applicant was represented by a lawyer of her own choosing.", "11. The Municipal Court heard the applicant on 24 March 2010 and established that :", "“ The respondent was found at her address in a wheelchair. She gave very meaningful answers; [she] stressed that she acted autonomously, kept her flat tidy, prepared her meals and was provided with help by her son and a tenant. She moved about independently in her wheelchair and did her own shopping, [and] paid [her own] bills, which gave rise to difficulties during winter. She stated that in the period when she had underwent a head surgery in September [2008], she had been late with paying her utility bills ... She did not agree with the proceedings [being brought] and considered that she did not need a guardian. She stressed that she regularly took [her] prescribed medication ... It is to be noted that the respondent was presentable and her home was tidy.”", "12. In her written submissions the applicant explained that during her hospitalisation she had empowered her son to retrieve money from her bank account and pay the utility bills, which he had not done but had instead taken the money for himself. She asked that her son be examined by the court.", "13. A psychiatric report commissioned for the purposes of the proceedings, drawn up on 12 April 2010 by D.P. and G.M., in so far as relevant reads as follows:", "“ A psychiatric examination of the respondent was carried out on 3 April 2010 at her home ... She stated that she had completed elementary school and had been an average pupil, that she had studied law for one year and knew all about the law. To me she said: ‘ You know how it was when you operated on me. ’ She is dissatisfied with the court proceedings [being brought] : ‘ I dislike the Pešćenica [Social Welfare Centre] because they attempted to send me to [a home in] Novi Marof. ’ And in respect of her son she said: ‘ I am sorry when someone blackmails him ’. She stated that she had been paying all her bills and that ‘ I previously had a huge negative [balance], [because] I had to pay for the hospital ’. She stated that she had a lot of acquaintances who were her former lodgers, whom she saw regularly when out and about in her wheelchair in her neighbourhood and ‘ they all respect me ’. Upon a direct question she denied having any mental problems.", "Psychological status: conscious, contact easily established, uncertain about time, in other respects well oriented. Has a wide and viscous ( viskozni ) thought process, with loss of determining tendency. Interacts without distance. In thought content confabulatory with a paranoid position, projections and infantile explanation. Basic disposition is elevated. Intellectually – memory functions are primarily insufficient at the LMR level, additionally compromised with psychoorganic type. Lacks insight into her condition.", "Marija Ivinović suffers from MB. Little, parapresis spast., monoparesis ext. sup. spast. sin., LMR, condition after brain haemorrhage, condition after stroke, condition after meningoencephalitis, with a lack of insight into her condition [and] the need for and purpose of treatment. Owing to this, she is not able to entirely look after her personal needs, rights and interests. Also, because of her state of health and lack of insight she may jeopardise the rights and interests of others.”", "14. On 19 May 2010 the applicant lodged written submissions whereby she objected to the psychiatrists ’ findings, stating that it was not clear how they had concluded that she was unable to properly dispose of her money, given that the debts referred to had been incurred by her son when she had been hospitalised.", "15. At a hearing held on 21 October 2010 the psychiatrists gave the following opinion evidence :", "“We entirely endorse our written report of 3 April 2010 and to the objections filed by the respondent we would state the following: on the basis of the enclosed medical records, social history and our own examination we have established that the respondent suffers from Morbus Littlee. She also suffers from triparesis with preserved functions of her right hand, mild mental retardation, and conditions following a brain haemorrhage and meningoencephalitis. Her intellectual capabilities are, owing to the above-mentioned [conditions], additionally compromised on the psychoorganic type. During the interview we noticed confabulations in the content of her thoughts, that is to say fabricated content, a paranoid position, in particular as regards her close family and the employees of the social welfare centre, and infantile explanation. The respondent lacks insight into her condition. All this led us [to conclude] that the respondent does not possess sufficient intellectual capacity to adequately protect her own rights and interests, and because of her lack of insight she might also jeopardise the rights and interests of others. We therefore consider that the application for deprivation of the respondent ’ s legal capacity as regards disposing of her money and assets and as regards taking decisions about her medical treatment, is appropriate. ”", "16. On 21 October 2010 the Zagreb Municipal Court partially deprived the applicant of her legal capacity, thereby stopping her from disposing of her money and other assets and from making independent decisions concerning her medical treatment. The ruling relied exclusively on the opinion given by the two psychiatrists and extensively repeated their findings stated in their written report and their oral evidence given at the hearing of 21 October 2010.", "17. The applicant lodged an appeal on 11 November 2010, in which she argued that partially depriving her of her legal capacity solely on the basis of the psychiatric report had not been justified, because the psychiatrists had lacked knowledge of how she spent her money and how she disposed of her assets. She argued that she had purchased the flat where she lived herself and there was no danger that she would give it up. The assertion that she was paranoid as regards her close family members was not correct. She had had troubled relations with her son at times because he had moved into her flat with his girlfriend and her daughter and had had an interest in having her removed from the flat and placed in a home. Therefore, she had successfully sought their eviction from her flat. She had also changed her bank and her son no longer had authority to use her credit card. She lived a peaceful life, and was a member of the Association of Disabled Persons with Cerebral Palsy and Poliomyelitis. The court conducting the proceedings had had the chance to establish that normal communication with her was possible and that she lived in a tidy flat. The Centre had not proven the need for her to be partially deprived of her legal capacity. Only a bookkeeping expert could have established the facts concerning her debts.", "18. The applicant ’ s appeal was dismissed by the Bjelovar County Court on 26 January 2012, which again relied extensively on the psychiatric report. The appeal court added that the applicant had been hospitalised between 9 and 25 September 2008 and 23 October and 13 November 2008, whereas the unpaid bills (see paragraph 9 above) were dated 9 April 2009 ( electricity bill of HRK 27,625.70), 18 March 2009 (HRK 8,290.25 in monthly instalments for the purchase of the flat) and 22 May 2009 ( water bill of HRK 4,477.42), which indicated that the debts concerned a much longer period than the applicant ’ s hospitalisation.", "19. The applicant then lodged a constitutional complaint, in which she repeated the arguments from her appeal, stressing that the debts in question had been incurred during the period in which she had been hospitalised and her son had had her bank card. Instead of paying her bills he had used the money from her account for his own needs. She added that only one of the psychiatrists who had drawn up the report on her mental state had interviewed her. She also stressed that it was entirely unclear what rights and interests of others she might jeopardise. The complaint was dismissed by the Constitutional Court on 13 June 2012." ]

[ "II. RELEVANT DOMESTIC LAW", "20. The relevant provisions of the Family Act ( Obiteljski zakon, Official Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007) read:", "Section 159", "“(1) An adult who, on account of mental illness or for other reasons, is unable to look after his or her own needs, rights and interests, or presents a risk to the rights and interests of others, shall be partly or completely deprived of [his or her] legal capacity by a court of law in non-contentious proceedings.", "(2) Before adopting a decision under subsection 1 of this section, a court shall obtain the opinion of a medical expert concerning the state of health of the person concerned and its effect on his or her ability to look after all or some of their personal needs, rights and interests and whether it might put the rights and interests of others at risk ....”", "Section 161", "“(1) A social welfare centre shall initiate court proceedings if it considers that, on the grounds set out in section 159(1) of this Act, there is a need to either completely or partly deprive a person of [his or her] legal capacity.", "(2) A social welfare centre shall appoint a special guardian for a person in respect of whom proceedings for deprivation of his or her of legal capacity have been instituted...”", "Section 162", "“The competent social welfare centre shall place under guardianship any person ... deprived of [their] legal capacity ...”", "Section 179", "(1) The guardian shall look after the person and his or her rights, obligations and well-being with due diligence, manage his or her assets and take measures aimed at enabling the ward to lead an independent professional and personal life.", "...”", "Section 184", "“(1) The guardian represents the ward.", "...”", "Section 185", "“In order to take more important measures concerning the ward, [his or her] personal status or health, the guardian shall obtain prior consent from a social welfare centre.”", "PROCEEDINGS FOR DEPRIVATION AND RESTORATION OF LEGAL CAPACITY", "Section 326", "“(1) A court shall invite to a hearing the requesting party, the person concerned, his or her guardian and a representative of a social welfare centre.", "(2) The persons mentioned in paragraph 1 may participate in the presentation of evidence, hearings and the presentation of the outcome of the entire proceedings.", "(3) A court shall try to hear the person concerned. Where that person has been placed in a psychiatric or social care institution, he or she shall be heard in that institution.", "(4) A court may decide not to invite and hear the person concerned where it could be detrimental for that person or where it is not possible to hear that person in view of his or her mental impairment or state of health.”", "Section 329", "(1) A court decision depriving someone of [their] legal capacity shall be served on the requesting party, the person concerned, his or her guardian and a social welfare centre.", "(2) The court is not obliged to serve the decision on the person concerned where he or she cannot understand the legal consequences of that decision or where it would be detrimental to his or her health.", "...”", "III. RELEVANT INTERNATIONAL INSTRUMENTS", "A. Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106)", "21. This Convention entered into force on 3 May 2008. It was signed and ratified by Croatia in 2007. The relevant parts of the Convention provide:", "Article 12", "Equal recognition before the law", "“1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.", "2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.", "3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.", "4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person ’ s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person ’ s rights and interests.", "5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.”", "B. Recommendation No. R (99) 4 of the Committee of Ministers of the Council of Europe on principles concerning the legal protection of incapable adults (adopted on 23 February 1999)", "22. The relevant parts of this Recommendation read as follows:", "Principle 2 – Flexibility in legal response", "“1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal response to be made to different degrees of incapacity and various situations.", "...", "4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.", "...”", "Principle 3 – Maximum reservation of capacity", "“1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.", "2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so.", "...”", "Principle 6 – Proportionality", "“1. Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned.", "2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "23. The applicant complained that the manner in which the proceedings for partial deprivation of her legal capacity had been conducted and the findings reached therein had violated her right to respect for her private life. She relied on Article 8 of the Convention, which, in so far as relevant, reads as follows:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "24. The Government argued that the applicant had failed to exhaust all available domestic remedies because she had not instituted fresh proceedings seeking to have her legal capacity fully restored, an option envisaged under the Family Act.", "25. The applicant replied that her complaints concerned the manner in which the proceedings for partial deprivation of her legal capacity had been conducted and the findings reached in those proceedings, and that in the course of those proceedings she had exhausted all available domestic remedies.", "26. The Court reiterates that under Article 35 § 1 of the Convention it may only deal with an application after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII). The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances. To be effective, a remedy must be capable of directly remedying the impugned state of affairs (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004).", "27. The Court notes that the present case concerns the applicant ’ s complaints related to the manner in which the proceedings by which she was partly deprived of her legal capacity were conducted and about the findings reached in those proceedings. In the Court ’ s view, such issues should properly be considered in the course of the proceedings themselves. During the domestic proceedings the applicant unsuccessfully raised the same complaints she is now presenting before the Court in her appeal against the first- instance ruling and in her constitutional complaint.", "28. The Court therefore considers, noting that the rule on exhaustion of domestic remedies concerns only remedies that relate to the breaches alleged (see De Jong, Baljet and Van den Brink v. the Netherlands, 22 May 1984, § 39, Series A no. 77 ), that by using all available domestic remedies concerning her complaints in the course of the relevant domestic proceedings, the applicant exhausted domestic remedies as required by Article 35 § 1 of the Convention (see Golubović v. Croatia, no. 43947/10, § 41, 27 November 2012 ).", "29. Against the above background, the Court considers that the Government ’ s objection must be rejected. It further notes that the applicant ’ s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 ( a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicants ’ submissions", "30. The applicant argued that in the proceedings at issue the national courts had not established all relevant circumstances concerning her personal state and had partly deprived her of her legal capacity without giving adequate reasons. She stressed that the court ruling to that effect had solely relied on the psychiatric report, which had been drawn up by two psychiatrists, one of whom had interviewed her for thirty minutes, while the other had never met her. Furthermore, the psychiatrists had had no knowledge of how she had been spending her money and disposing of her assets. She had had troubled relations with her son at times because he had spent her money on his own needs when she had been hospitalised, instead of paying the bills for her. In addition, he had moved into her flat with his girlfriend and her daughter, and had thus had an interest in the applicant being removed from the flat and placed in a home. Therefore, she had successfully sought their eviction from her flat. She had also changed her bank and her son no longer had authority to use her credit card. The court conducting the proceedings had had the opportunity to establish that normal communication with her was possible and that she lived in a tidy flat. The Centre had not proven the need to partly deprive her of her legal capacity. Only a bookkeeping expert could have established the facts concerning her debts. She also stressed that it was entirely unclear what rights and interests of others she might jeopardise.", "(b) The Government ’ s submissions", "31. The Government accepted that the ruling by which the applicant was partly deprived of her legal capacity had amounted to an interference with her right to respect for her private life under Article 8 of the Convention. However, in their view the interference had been based in law, had pursued a legitimate aim and had been proportionate to the aim sought. The legal basis for the interference had been section 159 of the Family Act. The ruling in question had been adopted in order to protect the applicant, as it had been established that she was not able to look after her own rights and interests in terms of disposing of her assets and making decisions concerning her medical treatment. The applicant had run up debts of about HRK 40,000, whereas her monthly pension amounted to about HRK 3,950.", "32. The applicant had had the opportunity to present her views during the proceedings and all her procedural rights had been respected. The facts of the case showed that the applicant had not been paying her bills, which had led to the electricity and water supply to her flat being cut off. There had also been the risk that she would be evicted from her flat, as she had not been paying the monthly instalments for the purchase of the flat.", "33. The psychiatric report had been drawn up on the basis of the applicant ’ s medical records, which had showed that the applicant had been suffering from various illnesses since birth and had also been treated for a brain haemorrhage and meningoencephalitis. During the interview conducted by the psychiatrist, the applicant had wrongly stated that the psychiatrist had operated on her, that her debts had concerned the costs of her hospitalisation (while in reality her medical insurance had covered all her medical costs) and that she had been operated on in 2002 ( the operation had actually happened in 200 8).", "(c) The third-party intervention", "34. The PERSON Project and Mental Health Europe, relying on the Court ’ s case-law, observations of the Council of Europe Commissioner for Human Rights and the United Nations Convention on the Rights of Persons with Disabilities, submitted that the deprivation of legal capacity was an unjustified intrusion on a person ’ s private life and that the authorities should firstly consider less restrictive measures. Deprivation of legal capacity had been identified by the Commissioner for Human Rights as an area of concern in relation to involuntary institutional placement, which was of crucial importance in the present case because the applicant had been deprived of her right to make independent decisions about her medical care. The United Nations Convention on the Rights of Persons with Disabilities should be understood as requiring the States to replace substitute decision-making by supported decision-making in the exercise of legal capacity. A range of specialist means of support for the exercise of one ’ s legal capacity developed around the world had proved to be successful in aiding people with mental disabilities. The interveners criticised decisions to deprive people of their legal capacity which relied solely on expert evidence, arguing that such a practice allowed for a considerable arbitrariness.", "2. The Court ’ s assessment", "(a) General principles", "35. The Court reiterates that deprivation of legal capacity may amount to an interference with the private life of the person concerned (see Shtukaturov v. Russia, no. 44009/05, § 83, ECHR 2008 and Lashin v. Russia, no. 33117/02, § 77, 22 January 2013). This is so even when a person has been deprived of his or her legal capacity only in part (compare to Berková v. Slovakia, no. 67149/01, § 164, 24 March 2009, and Salontaji-Drobnjak v. Serbia, no. 36500/05, § 144, 13 October 2009).", "36. The Court reiterates further that, whilst Article 8 of the Convention contains no explicit procedural requirements, “the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8” (see Görgülü v. Germany, no. 74969/01, § 52, 26 February 2004). The Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify the measures taken were “relevant and sufficient” and whether the decision-making process afforded due respect to the applicant ’ s rights under Article 8 of the Convention. It must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court ’ s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding deprivation of legal capacity, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see, mutatis mutandis, T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 71, ECHR 2001-V; Sahin v. Germany [GC], no. 30943/96, § 64, ECHR 2003 ‑ VIII; Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003 ‑ VIII (extracts); Görgülü, cited above, § 41; and Wildgruber v. Germany (dec.), no. 32817/02, 16 October 2006).", "37. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. The extent of the State ’ s margin of appreciation thus depends on the quality of the decision-making process. If the process was seriously deficient in some respect, the conclusions of the domestic authorities are more open to criticism (see, mutatis mutandis, Sahin v. Germany, no. 30943/96, §§ 46 et seq., 11 October 2001, and Salontaji-Drobnjak, cited above, § 143 ). In this connection, the Court would like to stress that strict scrutiny is called for where measures that have such adverse effect on an individual ’ s personal autonomy, as deprivation of legal capacity has, are at stake.", "(b) Application of these principles in the present case", "38. Turning to the particular circumstances of the present case, the Court notes that the national courts partially deprived the applicant of her legal capacity, thereby stopping her from disposing of her money and other assets and from making independent decisions concerning her medical treatment. In the Court ’ s view, depriving a person of his or her legal capacity, even in part, is a very serious measure which should be reserved for exceptional circumstances (see, mutatis mutandis, X and Y v. Croatia, no. 5193/09, § 91, 3 November 2011 ). Bearing in mind the utmost importance of the consequences of such a measure for the applicant ’ s private life, the Court considers that a careful examination of all relevant factors by courts dealing with the case was necessary to ensure that the requirements of Article 8 of the Convention were complied with.", "39. In this respect the Court also reiterates that proceedings before courts must conform to the rule of law, which can be identified with the good administration of justice and that, in the absence of any obligation for a judicial authority to give reasons for their decisions, the rights guaranteed by the Convention would be illusory and theoretical. Without requiring a detailed response to each argument presented before a court, this obligation nevertheless presupposes the right of a party to the proceedings to have his or her essential contentions carefully examined (see, mutatis mutanids, Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303 ‑ A; Hiro Balani v. Spain, 9 December 1994, § 27, Series A no. 303 ‑ B; and Novoseletskiy v. Ukraine, no. 47148/99, § 111, ECHR 2005 ‑ II (extracts) ).", "40. The Court notes that the decision to partly deprive the applicant of her legal capacity relied to a decisive extent on the report drawn up by two psychiatrists. The Court is aware of the relevance of medical reports concerning persons suffering from impairment to their mental faculties and agrees that any decision based on an assessment of a person ’ s mental health has to be supported by relevant medical documents. However, it is the judge and not a physician who is required to assess all relevant facts concerning the person in question and his or her personal circumstances. It is the function of the judge conducting the proceedings to decide whether such an extreme measure is necessary or whether a less stringent measure might suffice. When such an important interest for an individual ’ s private life is at stake a judge has to carefully balance all relevant factors in order to assess the proportionality of the measure to be taken. The necessary procedural safeguards require that any risk of arbitrariness in that respect is reduced to a minimum (see X and Y v. Croatia, cited above, § 85 ).", "41. As regards the reasons adduced by the national authorities for depriving the applicant of her legal capacity, the national court relied on two main factors – the applicant ’ s illness and the allegations that she had incurred significant debts which had put her in a vulnerable position and could possibly have entailed the loss of her flat.", "42. As regards the applicant ’ s health problems, the Court notes that there is no indication in the case file that the applicant had not been looking after her health. The national courts did not provide any reasons in that respect. Furthermore, the Municipal Court never attempted to hear evidence from a doctor who regularly saw the applicant, such as her general practitioner.", "43. As regards the applicant ’ s financial situation, the national authorities failed to establish all relevant facts so as to elucidate the exact circumstances in which the applicant had incurred her debts. The Municipal Court never attempted to establish the exact period in which bills had gone unpaid or to hear evidence from the applicant ’ s son, whom the applicant alleged had squandered her money during her hospitalisation. While the appeal court mentioned the sums owing for a number of debts and the date of the bills, it also failed to establish the exact period to which these debts related (see paragraph 18 above ). Thus, the crucial issue as to whether the applicant was responsible for the debts incurred remained unanswered.", "44. Even when the national authorities establish with the required degree of certainty that a person has been experiencing difficulties in paying his or her bills, deprivation, even partial, of legal capacity should be a measure of last resort, applied only where the national authorities, after carrying out a careful consideration of possible alternatives, have concluded that no other, less restrictive, measure would serve the purpose or where other, less restrictive measure, have been unsuccessfully attempted. However, there is no indication that any such option was contemplated in the present case.", "45. As regards the representation of the applicant in the proceedings at issue, the Court notes that an employee of the Centre was appointed as the applicant ’ s legal guardian (see paragraph 10 above). However, given that it was the Centre itself that had instituted the proceedings for deprivation of the applicant ’ s legal capacity, her appointment as the applicant ’ s legal guardian put her into a conflict of loyalty between her employer and the applicant as her ward. In the present case the guardian gave her full consent to the application for partial deprivation of the applicant ’ s legal capacity, and made no submissions as regards the evidence to be presented. Notwithstanding the fact that the applicant engaged the services of a lawyer at her own expense (see paragraph 10 above), it cannot but be noted that national law does not provide for obligatory representation of the person concerned by an independent lawyer, despite the very serious nature of the issues concerned and the possible consequences of such proceedings (see M.S. v. Croatia, no. 36337/10, § 104, 25 April 2013). Furthermore, the Court reiterates that in cases of mentally disabled persons the States have an obligation to ensure that they are afforded independent representation, enabling them to have their Convention complaints examined before a court or other independent body (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 161, 17 July 2014).", "(c ) Conclusion", "46. The Court therefore finds that the national courts, in depriving partially the applicant of her legal capacity, did not follow a procedure which could be said to be in conformity with the guarantees under Article 8 of the Convention. There has accordingly been a violation of that provision.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "47. The applicant complained about the manner in which the proceedings for partial deprivation of her legal capacity had been conducted. She relied on Article 6 § 1 of the Convention which, in so far as relevant reads:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "48. The Government contested that argument.", "49. The Court notes that this complaint is linked to the complaint examined above and must therefore likewise be declared admissible.", "50. Having regard to the finding relating to Article 8 of the Convention, the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 6 § 1 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "51. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "52. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.", "53. The Government submitted that the amount claimed was unfounded, excessive and unsubstantiated.", "54. The Court considers that the applicant must have suffered non-pecuniary damage as a result of the institution of the proceedings to partly deprive her of her legal capacity. Making its assessment on an equitable basis, the Court awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.", "B. Costs and expenses", "55. The applicant also claimed EUR 2,500 for costs and expenses incurred before the domestic courts and before the Court.", "56. The Government submitted that the applicant had failed to prove that the costs of her representation before the Court had actually been incurred.", "57. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,500 covering costs under all heads of claim.", "C. Default interest", "58. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1971 and lives in Naujoji Akmenė.", "6. In November 19 8 9 he started military service in the armed forces of the Soviet Union. Medical records dated 20 June 1990 drafted by a panel of doctors in his military unit in Riazan ( Russia), stipulated that at that time he had problems communicating with others and was autistic, though he had a normal memory and level of intelligence. He was diagnosed with sluggish schizophrenia, which he had developed during military service. On those grounds, he was released from military service.", "7. Having returned from the army to Lithuania, by 2005 he had been treated in psychiatric institutions no less than fifteen times. In 2004 he was diagnosed with residual and then paranoid schizophrenia.", "8. In February 2006 the applicant attempted suicide by setting himself on fire. He was admitted to the trauma unit of a hospital.", "9. In reply to a prosecutor ’ s request for information, on 1 4 November 2006 the Akmenė District Psychiatric Health Centre ( Akmenės rajono psichikos sveikatos centras ) confirmed that the applicant had been attending there since 1999, and continued to be treated there for schizophrenia. In 2004 episodes of the applicant ’ s illness became more frequent. That year the applicant attempted to commit suicide; he did not accept that he was ill. He was admitted to the Šiauliai Psychiatric Hospital ( Šiaulių psichiatrijos ligoninė ), where he spent about a month before being released for outpatient care at his own request. Since July 2005 the applicant stopped attending the Akmenė District Psychiatric Health Centre and taking his medication, because he firmly refused any consultations with the psychiatrists. He would also submit numerous complaints to various authorities.", "10. On 24 November 2006 the applicant ’ s mother asked a prosecutor to initiate proceedings with a view to her son being declared legally incapacitated. According to her, his mental illness started when he was in the Soviet army. She and her husband lived in a house separate from him in neighbouring Akmenė. By 2006 the applicant ’ s condition reached such a stage that he was afraid to leave his apartment or let his parents in, and he did not take care of himself. He even attempted to take his own life by setting himself on fire.", "11. On the same day, the prosecutor sent the request by the applicant ’ s mother to the Akmenė District Court, together with an extract from the applicant ’ s medical records. It was noted that his schizophrenia had worsened and that he had become a danger to himself. He was thus in need of help from others. It was indispensable to ascertain whether there was a basis for declaring him legally incapable, if psychiatrists established that he could not understand or control his actions. The prosecutor relied on Articles 2.10, 3.242 § 1 and 3 of the Civil Code, Articles 135, 462-465, 491 ‑ 493 of the Code of Civil Procedure, and Article 19 of the Law on Prosecution Service.", "12. By a ruling of 29 November 2006 the Akmenė District Court ordered an expert examination to ascertain ( i ) whether the applicant was suffering from mental illness, (ii ) whether he could understand his actions and (iii ) whether he could take part in court proceedings. His mother was to be informed of that decision.", "13. Having examined the applicant in person and scrutinised his medical records, on 8 January 200 7 a psychiatrist concluded that he suffered from paranoid schizophrenia. He was also very mistrusting and had strong feelings of persecution. Psychiatrists took into account the letters by his mother to the Akmenė District Psychiatric Health Centre and the prosecutor to the effect that the applicant did not take care of his daily needs, and had social and health issues and suicidal thoughts. The psychiatrist thus established that the applicant could not correctly understand or control his actions, and noted that he “could not take part in court proceedings, could not be questioned, and court documents could not be served on him”.", "14. In a one page form sent to the Akmenė District Court on 29 January 2007, Akmenė District social services ticked a box to say that they “ agreed ” with the prosecutor ’ s request for the applicant to be declared incapacitated. They also indicated that they would not take part in the court hearing, which was scheduled for 31 January 2007.", "15. On 23, 24, 25 and 30 January 2007 attempts were made by the Akmenė District Court to personally serve the applicant with the summons concerning the forthcoming hearing for his legal incapacitation and care. The copy of the summons indicated that it had not been served because, according to his next door neighbour, the applicant was mentally ill and opened the door to no one.", "16. At a public hearing on 31 January 2007 the Akmenė District Court, relying on Articles 465-468 of the Code of Civil Procedure, granted the prosecutor ’ s request for the applicant to be declared incapacitated, on the grounds that he could not understand or control his actions. The prosecutor and the applicant ’ s mother were in attendance. The applicant ’ s mother testified about her son ’ s history of mental illness. She also stated that he had recently been living away from his parents, but could not take care of himself, did not pay maintenance fees for his apartment, and would not go out or take his medication.", "The ruling stipulated that it could be appealed against within thirty days.", "17. The Government submitted that, given the fact that it had not actually been possible to serve the summons on the applicant, the decision of 31 January 2007 had only been sent to the interested parties in the case, that is to say the applicant ’ s mother, the prosecutor and social services.", "18. On 5 February 200 7 the applicant drafted what appears to be a response to the prosecutor ’ s request of 24 November 2006 to incapacitate him. Therein he mentions that he received a copy of the prosecutor ’ s request on 30 January 2007. The letter appears essentially to be a complaint about his treatment in psychiatric hospitals and diagnosis with schizophrenia. He concludes by stating that because of obvious forgery of his medical examination results and clear bias on the part of the prosecutor, the applicant refused to undergo medical examination in Lithuania. A stamp on the letter indicates that it was received by the Akmenė District Court on 5 February 2007.", "19. Having established that the applicant was legally incapacitated, by a ruling of 6 March 2007 the Akmenė District Court appointed the applicant ’ s mother as his guardian and the administrator of his property. The decision was taken at a public hearing in which she, a prosecutor and a representative from social services took part. The ruling stipulated that the applicant had not taken part because of ill- health.", "20. The applicant was forcibly admitted to the Šiauliai Psychiatric Hospital on 9 March 2007, after showing signs of agitation and behaving aggressively towards his parents. The police and some firemen had to break down the door of his apartment to get to him. On 11 March 2007 he consented to treatment until 13 March 2007, when he refused any further treatment in writing.", "21. On 13 March 2007 the Šiauliai Psychiatric Hospital asked the State Guaranteed Legal Aid Service (“the Legal Aid Service”) to provide legal aid to the applicant, who was to be forcibly hospitalised. It was granted the same day, and a lawyer was appointed to represent him.", "Later that day, in the presence of a psychiatrist and the appointed lawyer, the Šiauliai District Court granted a request by the psychiatric hospital for the applicant to be forcibly hospitalised. The court noted that the applicant was absolutely uncritical of his own behaviour, and that his state of mind at that time meant that he posed a danger to himself and others. The ruling was final and not appealable. It indicated that on 31 January 2007 the applicant had been declared legally incapacitated, and that on 6 March 2007 his mother had been appointed as his guardian.", "22. The Government submitted to the court an extract from the applicant ’ s medical records, which indicated that he had been at the Šiauliai Psychiatric Hospital from 9 March until 22 June 2007. The doctor indicated in that record that a copy of the court ruling of 13 March 2007 had been given to the applicant. It is not clear when that was done.", "The Government submitted that the court decision of 13 March 2007 had been handed to the applicant by his treating doctor on 15 March 2007.", "23. On 6 April 2007 the applicant signed a document certifying that his treatment plan from the Šiauliai Psychiatric Hospital had been explained to him and that he agreed to follow it.", "24. Having been released from the psychiatric hospital, on 26 November 2008 the applicant approached the Legal Aid Service. In his application he wrote that by a ruling of 31 January 2007 he had been declared legally incapacitated, and that he would need the time-limit for appealing against it to be renewed. He also indicated that in March 2007 his mother had been appointed his guardian and the administrator of his property. He noted that he had not known about the two decisions until 9 March 2007, upon his admission to the Šiauliai Psychiatric Hospital. He also expressed a wish to appeal against them.", "25. On 31 December 2008 the Legal Aid Service refused the request as having no prospect of success. It noted that the applicant fell into the category of people entitled to legal aid; however, given that the proceedings for his incapacitation had been terminated, his request for legal aid was clearly irrelevant.", "26. The Legal Aid Service noted that the decisions the applicant wished to challenge had been taken in January and March 2007. Given that he had not requested legal aid until 28 November 2008, he had missed the deadline for appeal against those decisions. Representing him in such proceedings would have had no prospect of success.", "27. As to the appointment of the applicant ’ s mother as his legal guardian, the Legal Aid Service indicated that he had given no grounds for doubting her ability to perform her duties as guardian and the administrator of his property. Lastly, it observed that guardianship could be revoked at the request of a prosecutor or social services. Given that the applicant himself could not apply to the court with such a request, there was no legal basis for providing him legal assistance.", "28. On 15 December 2008 the applicant requested that the Akmenė District Court give him a copy of the court rulings regarding his incapacitation and the appointment of his legal guardian.", "29. On 16 December 2008 a judge of the Akmenė District Court wrote to the applicant informing him that those court rulings would not be given to him, because his mother had been appointed as his legal guardian and the administrator of his property.", "30. In their observations on the admissibility and merits of the case, sent to the Court on 2 May 2012, the Government noted that at that time the applicant had lived separately in his own apartment. He had been unemployed but had received disability pension. His guardian had helped him with daily chores. He had also received regular outpatient treatment at the Akmenė District Psychiatric Health Centre.", "31. On 13 August 2014 the applicant complained to the Šiauliai prosecutor ’ s office that in 2004 he had been forcibly admitted to the Šiauliai Psychiatric Hospital and made to undergo medical treatment. The applicant asked that a pre-trial investigation be opened regarding his allegations.", "32. By a final ruling of 11 November 2014, the Šiauliai Regional Court held that the applicant ’ s complaints about events in 2 004 were unfounded." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Legal incapacity and guardianship legislation", "33. As concerns legal incapacity and guardianship, the Civil Code, in force at the material time and until 31 December 2015, provided :", "Article 2.10. Declaration of a person ’ s incapacity", "“1. A natural person who, as a result of mental illness or dementia, is unable to understand the meaning of his actions or control them may be declared incapacitated. The incapacitated person shall be placed under guardianship.", "2. Contracts on behalf and in the name of a person declared incapacitated shall be concluded by his guardian ...", "3. Where a person who was declared incapacitated recovers from illness or his state of health improves considerably, the court shall reinstate his capacity. Once the decision takes effect, guardianship of the person shall be revoked.", "4. A request to declare a person legally incapacitated may be lodged by a person ’ s spouse, parents or adult children, a care institution or a public prosecutor. They also have the right to apply to the courts for recognition of the person ’ s capacity.”", "Article 2.11. Limitation of a person ’ s active civil capacity", "“1. The courts may impose restrictions on a person ’ s civil capacity if he abuses alcohol, drugs or narcotic or toxic substances. Once limitations on a person ’ s capacity have been imposed, he shall be placed under guardianship .. .”", "Article 2.11 1. The Register of legally incapacitated persons and persons of limited capacity", "“1. The Register of legally incapacitated persons and persons of limited capacity shall record persons who are declared in accordance with the procedure laid down by the court to be legally incapacitated or whose civil capacity is limited ..., guardians and curators ( globėjai ir rūpintojai ) of such persons; the data of the court decisions, adopted in respect of them, concerning the establishment and revocation of legal capacity or limitation of legal capacity...”", "Article 3.238. Guardianship", "“1. Guardianship is established with the aim of exercising, protecting and defending the rights and interests of a legally incapacitated person.", "2. Guardianship includes guardianship of a person ’ s assets, but if necessary, an administrator may be appointed to manage [these] .”", "Article 3.240. Legal status of guardians and curators", "“1. Guardians and curators represent those under guardianship in accordance with the law and defend the rights and interests of legally incapacitated people or people of limited active capacity without any specific authorisation.", "2. A guardian is entitled to enter into all necessary transactions in the interests and on behalf of the legally incapacitated person represented ... ”", "Article 3.241. Guardianship and curatorship authorities", "“1. Guardianship and curatorship authorities are municipal or regional authorities concerned with the supervision and control of the activities of guardians and curators.", "2. The functions of guardianship and curatorship in respect of residents of a medical or educational institution or [ an institution run by a] guardianship (curatorship ) authority who have been declared by the court as legally incapable or of limited active capacity shall be performed by the relevant medical, educational or guardianship (curatorship ) authority until a permanent guardian or curator is appointed ... ”", "34. In 2007, the year the applicant was declared legally incapacitated, the Code of Civil Procedure provided that an application to declare a person legally incapacitated could be submitted by his spouse, children or parents, a guardianship institution or a public prosecutor (Article 463 § 1 ). The parties to the incapacitation proceedings consisted of, besides the person who had initiated them, the person whose legal capacity was in question, as well as the guardianship (care) authority. The court could also invite close relatives or family members living with the person whose incapacitation was to be decided to join the proceedings. If it was impossible to call into or question in court a person subject to incapacitation proceedings or serve court documents on him because of his state of health, as confirmed by medical opinion, the court could hear the case in his absence (Article 464 §§ 1 and 2).", "35. An application for a person ’ s incapacity had to contain information about the mental illness ( psichikos sutrikimas ) which had left him unable to understand the meaning of his actions or control them. In addition, it had to contain a medical report and other evidence about his psychological state (Article 465). When preparing the case the judge had to order a psychiatric report to establish the person ’ s psychological state, and obtain medical documents necessary for the expert report (Article 466).", "36. The question of incapacity had to be decided at an oral hearing, having informed all the parties to the proceedings. If the court considered it necessary to hear and question the person whose legal capacity was in question, and he did not appear, the court could order the police to escort him, or order another court within whose territory that person resides, to question him. The person had to be questioned in the presence of a court psychiatrist (Article 467 §§ 1 and 2 ).", "37. A person declared legally incapacitated by the court had a right to appeal against the decision to a higher court (Article 468 § 5).", "38. A copy of the decision had to be sent to the parties and third parties absent from the hearing within five days of the date the decision was pronounced (Article 275 § 1).", "39. Article 366 § 1 (6) and (7) of the Code of Civil Procedure provided that proceedings could be reopened if one of the parties was incapacitated and did not have a representative, or if the court had taken a decision in respect of a party not involved in the proceedings.", "40. The Law on State Guaranteed Legal Aid ( Valstybės garantuojamos teisinės pagalbos įstatymas – “the Law on Legal Aid”) provided that those subject to incapacitation proceedings were eligible for “ secondary ” legal aid regardless of their assets and level of income levels (Article 12 § 1 (11)). The authorities could refuse to provide legal aid where an applicant ’ s claims were manifestly ill-founded or where representation in the matter had no reasonable prospect of success (Article 11 § 6 (1, 2)).", "41. The Constitution provides that citizens who are recognised as incapable by the courts cannot participate in elections or stand for election as a Member of the Seimas (Articles 34 and 56 ).", "42. The Civil Code stipulates that a transaction is voidable if it is made by someone who, within the procedure established by law, is recognised as legally incapable by reason of a mental disorder (Article 1.84 § 2). A person who has been declared legally incapacitated by a court judgment in force cannot marry (Article 3.15 § 1). Furthermore, a will may only be made by a legally capable person able to understand the importance and consequences of his actions (Article 5.15 § 2).", "43. Article 27 of the of the Law on Mental Healthcare ( Psichikos sveikatos priežiūros įstatymas ) provides that a person who is seriously mentally ill and refuses hospitalisation can be admitted involuntarily to hospital if there is a real danger that by his actions he is likely to commit serious harm to his health or life or the health or life of others. In such circumstances, the patient may be involuntarily hospitalised and given treatment in a mental health facility without court authorisation for a period not exceeding forty-eight hours. If the court does not give authorisation within this time, the involuntary hospitalisation and treatment must be stopped (Article 28).", "B. Legislative steps to regulate the situation of those suffering from a mental disability", "1. Explanatory memorandum No. XIIP-1656 by the Ministry of Justice", "44. On 2 April 2014 the Ministry of Justice adopted an explanatory memorandum ( aiškinamasis raštas ) in connection with proposed legislative changes relating to the protection of the rights of the disabled. The changes were prompted by the ratification of the United Nations Convention on the Rights of Persons with Disabilities, ratified by Lithuania in 2010 (for the relevant extracts from that Convention, see paragraph 6 9 below) and the Court ’ s practice. The changes aimed at improving existing domestic standards in the light of Article 12 of the aforementioned Convention, which specifies that States should recognise that people with disabilities enjoy legal capacity on an equal basis with others in all aspects of life, and therefore States should take appropriate measures to provide them with access to the support they may require in exercising their legal capacity.", "45. The explanatory memorandum acknowledged that the law as it existed in Lithuania lacked a legal framework for how assistance could be provided to people with disabilities, including those suffering from mental illness. As a result, those with psychiatric illnesses, owing to which they could not always make decisions in their best interests, would be exposed to the most restrictive measure – full incapacitation. Even if a person could partially understand or control his actions, limiting his legal capacity by only allowing him to act in certain areas of life was not permitted by law. However, limited legal capacity could be established in respect of people who abused narcotic or psychotropic substances or alcohol (Articles 2.10 and 2.11 of the Civil Code, see paragraph 33 above ).", "46. It was also pertinent that under Article 2.10 of the Civil Code, once a person was declared legally incapacitated, he lost the right to act in his name in all areas of his life. Moreover, under the law in force the person whose legal capacity could be restricted in future had no right to indicate how he wished his pecuniary or non-pecuniary rights to be dealt with after incapacitation. The existing law also lacked a means of guaranteeing that, after the person was declared incapacitated, his or her earlier wishes would be taken into account. The explanatory memorandum thus proposed that the existing law be amended by emphasising the need to individualise the measures of incapacitation so that they were fully justified ( visapusiškai pagrįstos ) and applied to each person ’ s particular situation.", "47. As to the misgivings concerning the proceedings for limiting a person ’ s capacity, the Ministry of Justice noted that, should a person ’ s health improve, the same people who could ask for his incapacitation could then submit a request to restore his legal capacity (Article 2.10 §§ 2 and 4 of the Civil Code, see paragraph 33 above ). However, the incapacitated person could not apply to the court himself. Furthermore, no independent body had an obligation to periodically review the incapacitated person ’ s condition or ask the court to review the incapacitation decision. As a result, the existing legislation did not prevent situations where the guardian of the incapacitated person, abusing his or her rights or executing them improperly, failed to ask the court to declare the incapacitated person legally capable even if his health had improved. Moreover, there was no legal requirement for a court to review an incapacity decision if none of the people who could initiate incapacity proceedings had not asked for a review for a long time. Nor was it possible to ask for the decision to be reviewed by an independent body which monitors the incapacitated person ’ s state of health. As a result, the incapacitated person ’ s rights could be restricted for a disproportionately long time.", "48. The Ministry of Justice further observed that under Article 465 of the Code of Civil Procedure, the request for a person ’ s incapacitation had to contain a description of the circumstances, including the mental illness which had left the person unable to understand the meaning of his actions or control them. It also had to contain a doctor ’ s report and other evidence about the person ’ s state of mind ( apie asmens psichinę būklę ). However, this definition of evidence was restrictive and narrow.", "2. Legislative amendments in force from 1 January 2016", "49. On the basis of the aforementioned proposals by the Ministry of Justice, on 26 March 2015 the Seimas adopted a number of legislative amendments relating to the protection of the rights of people with disabilities. They came into force on 1 January 2016, and are summarised below.", "(a) Civil Code", "50. Article 2.10 of the Civil Code now provides that a person who cannot understand or control his actions in a particular area of his life because of psychological illness may be declared by the court as legally incapacitated in that area ( neveiksnus tam tikroje srityje ) by court decision. In that particular area the person must act through his guardian. The court must establish a definitive list stating in which areas the person is incapacitated. It must also restore legal capacity in those areas if his health improves.", "51. A request to declare a person legally incapacitated in a certain area may be submitted by his spouse, parents or adult children, a care institution or a prosecutor, who may all request that the court restore legal capacity. Unlike previously, the Civil Code now provides that such requests for restoration of legal capacity may be lodged, no more than once per year, by the person declared legally incapacitated.", "52. A request to restore a person ’ s legal capacity may also be lodged by the State [of Mind] of Incapacitated Persons ’ Review Commission ( Neveiksnių asmenų būklės peržiūrėjimo komisija ), a new independent body to be established in every municipality. It must review the incapacitated person ’ s state of mind on its own initiative, if no request has been lodged by the parties entitled to do so within a year of the incapacity decision. Furthermore, it must be impartial and work on the basis that restriction of legal capacity should be used as little as possible and measures for limiting legal capacity should be individualised and reasoned. When reviewing the person ’ s state of health, the Commission must hear his opinion, except where objective reasons make that impossible. When it has doubts over whether it is appropriate to apply to the court for restoration of legal capacity, all of those doubts should be interpreted for the benefit of the incapacitated person (Articles 2.10 and 2.10 1 ).", "53. The Civil Code also extends the ability to restrict a person ’ s civil capacity in a particular area of his life ( fizinių asmenų civilinio veiksnumo apribojimas tam tikroje srityje ) to those with mental illnesses (Article 2.11). Accordingly, a person who, because of mental illness, may not understand or control his or her actions in a particular area, may be declared by a court to have limited active legal capacity in that area, where he may not act without the agreement of his curator. A request to declare a person partially legally restricted in a certain area may be submitted by his spouse, parents or adult children, a care institution or a prosecutor. They can also request the court to restore legal capacity. Unlike previously, the Civil Code now provides that a request to restore a person ’ s legal capacity may also be lodged by the person whose capacity was partially restricted.", "54. The Civil Code was also supplemented by new Article 2.137 1, which concerns preliminary arrangements ( išankstinis nurodymas ). It provides that an adult may make preliminary arrangements about how his pecuniary or non-pecuniary rights will be managed, should he be declared incapacitated in a certain area or partially capacitated in another. In the preliminary arrangements the person may name a person he wishes the court to appoint as his guardian, express his intentions about where he will live in future, name a specific person to deal with any financial and non-financial matters, or make other arrangements. Such preliminary arrangements must be approved by a notary and take effect after the court decision regarding the person ’ s legal incapacity. From that point onwards, the preliminary arrangements are binding on everybody, unless the court decides that they are not in the incapacitated person ’ s interests.", "(b) Code of Civil Procedure", "55. Article 465 now stipulates that an application for a person ’ s incapacitation in a certain area must contain a description of the circumstances, including the medical condition which has left him unable to understand or control his actions. A medical report and other evidence must be added to the application. It must also list the areas in which the person should be declared incapacitated. Unlike previously, the new element to be included is a conclusion by a social worker about the person ’ s ability to take care of his or her daily needs independently or with assistance in particular areas.", "56. Article 467 § 6 now provides that when hearing a case for a person ’ s incapacity in a certain area, it is obligatory that the person concerned is represented by a lawyer.", "57. In accordance with Article 469, the court may review an earlier incapacity decision at the request of, inter alia, the incapacitated person himself, should his health improve. In such proceedings the person ’ s lawyer must take part, and if he does not have a lawyer the court will order the Legal Aid Service to secure one. Should a court decide to maintain a decision that a person is incapable in certain areas, it must ex officio evaluate whether he needs help in other areas and suggest to him that he agrees to assistance in those areas.", "(c) Other legislative changes", "58. The Law of Local Government ( Vietos savivaldos įstatymas ) was supplemented by adding “ ensuring a review of the state [ of mind ] of incapacitated persons ” ( neveiksnių asmenų būklės peržiūrėjimo užtikrinimas ) to the functions of local government (Article 7 § 37).", "59. The Law on State Guaranteed Legal Aid Service was amended to stipulate that when a healthcare institution contacts the Legal Aid Service for legal aid to be provided to a mental health patient, the Legal Aid Service must adopt a decision the same day and familiarise the patient with it. It must also provide appropriate facilities to enable the patient and his lawyer to communicate (Article 22 ).", "C. Supreme Court guidance regarding incapacity and guardianship proceedings", "1. Ruling of 11 September 2007 in civil case no. 3K-3-328/2007", "60. In the above ruling, the Supreme Court noted that a person whose incapacity was requested was also a party to the proceedings (Article 464 § 1 of the Code of Civil Procedure ). As a result, he enjoyed the rights of an interested party, including the right to be duly informed of the time and place of any hearing. The fact that the incapacitation case was heard in the absence of D.L. – who did not open the door to anyone and thus did not accept correspondence – was assessed by the Supreme Court as a violation of her right to be duly informed of the time and place of hearing. It also found that by failing to hear the person concerned and without making sure that she had been aware of the proceedings, the first-instance court had breached the principle of equality of arms and her right to appeal against the incapacity decision, because it had not been served on her. The Supreme Court also referred to Principle no. 13 of Recommendation No. R( 99)4 by the Committee of Ministers of the Council of Europe (see paragraph 6 8 below), stating that a person has the right to be heard in any proceedings which could affect his legal capacity. This procedural guarantee should be applicable to the fullest extent possible, at the same time bearing in mind the requirements of Article 6 of the European Convention on Human Rights. In this regard, the Supreme Court also referred to the Court ’ s case-law to the effect that mental illness could result in appropriate restrictions of a person ’ s right to a fair hearing. However, such measures should not affect the very essence of that right ( the Supreme Court relied on Winterwerp v. the Netherlands, 24 October 1979, § 60, Series A no. 33, and Lacárcel Menéndez v. Spain, no. 41745/02, § 31, 15 June 2006 ).", "61. In the same ruling, the Supreme Court also emphasised that determining whether a person can understand his or her actions was not only a scientific conclusion for forensic psychiatry, but also a question of fact which should be decided by the court on assessing all the other evidence and, if necessary, hearing expert evidence. Taking into consideration the fact that a declaration of incapacity entailed very serious interference with a person ’ s right to respect for his private life, it could only be made in exceptional circumstances.", "2. Ruling of 11 July 2008 in civil case no. 3K-3-370/2008", "62. In that ruling, the Supreme Court reiterated the Court ’ s case-law to the effect that depriving a person of legal capacity entailed serious restrictions on his rights under Article 8 of the Convention. Very weighty reasons therefore had to be given for incapacitation (the Supreme Court referred to Matter v. Slovakia, no. 31534/96, § 68, 5 July 1999). It drew attention to the fact that different degrees of incapacity may exist, and that it may vary from time to time. Full restriction of legal capacity should therefore not be an unavoidable result when protecting the rights of the mentally disabled. The Supreme Court established two criteria to be observed: medical, the mental illness or disorder, recognised by a forensic psychiatric examination report and legal, the inability to understand and control one ’ s actions because of the mental illness. Both criteria were essential and of equal importance to each case regarding someone ’ s incapacitation. The Supreme Court emphasised that the question of establishing incapacity could not be examined in a purely formalistic way, simply following the medical criteria established in the expert ’ s conclusion and considering it to be sufficient grounds for finding someone incapable (the Supreme Court relied on Shtukaturov v. Russia, no. 44009/05, ECHR 2008). Moreover, the medical expert report as to the mental capacity of the person did not bind the court.", "63. In the same ruling, the Supreme Court underlined that under Article 2.10 of the Civil Code, legal incapacitation entailed a very serious restriction on a person ’ s right to respect for his private life, because he would become completely dependent on his guardian for an indefinite period of time. Legal status could only be reviewed on the initiative of the person ’ s guardian or others, but not on the initiative of the incapacitated person. For that reason, fairness of the incapacitation proceedings was crucial. The Supreme Court also observed that under Article 464 of the Code of Civil Procedure, a person whose incapacitation was at issue should be present at the hearing where his incapacitation is being decided, unless medical experts have deemed his participation impossible because of his or her state of mind.", "3. Ruling of 23 March 2012 in civil case no. 3K-3-166/2012", "64. In that ruling, the Supreme Court observed that incapacitation stripped a person of all his rights, including the right to marry, vote, deal with his assets and choose where to live; in fact, it eliminated him from society. For that reason, it was vital to give priority to defending the rights of the vulnerable using all means possible during incapacitation proceedings. The Supreme Court once again reiterated that in order to justify full incapacitation, the mental disorder must be “ of a kind and degree ” warranting such a measure.", "65. In that particular case, the Supreme Court found that the question of legal capacity had only been examined at one level of jurisdiction, which was not sufficient to protect the incapacitated person ’ s interests. Moreover, when assessing fairness of proceedings, the entire proceedings, including the appellate stage, counted. In the circumstances of the case, the legally incapacitated person first appealed against the first - instance court ’ s decision to incapacitate her. Later she withdrew her appeal, an application which the appellate court had quickly accepted. The Supreme Court found that without holding a hearing and examining whether the plaintiff truly wished to terminate the court proceedings (and with information that she actually objected to her incapacitation), the appellate court had failed to take into account the importance of the issue at stake for her, and had thus breached her right to a fair hearing and the principle that priority must be given to the protection of the rights of the vulnerable. The Supreme Court referred to, inter alia, the Convention on the Rights of Persons with Disabilities, Article 12 of which reads that the disabled shall be provided with the support they may require in exercising their legal capacity.", "66. Lastly, in that case the incapacitated person ’ s guardian submitted a written request to the Supreme Court, arguing that she was the only person who could legally represent the incapacitated person. She requested that the court dismiss the incapacitated person ’ s appeal on points of law. The Supreme Court dismissed that request.", "D. Other relevant domestic law", "67. The Code of Civil Procedure provided at the material time that a court decision could be appealed against within thirty days. If there was a valid reason for missing that deadline, a request to extend the time - limit could be submitted within six months of the decision of the first-instance court (Article 307). Proceedings could be reopened if, for example, the court had ruled on the rights and obligations of a person not party to those proceedings. Such a request had to be submitted to the court within three months of the date the person learned of the grounds for reopening the proceedings, but no later than five years from the date the decision was adopted (Articles 365-368).", "III. RELEVANT INTERNATIONAL MATERIALS", "68. Recommendation No. R( 99)4 of the Committee of Ministers of the Council of Europe on principles concerning the legal protection of incapable adults was adopted on 23 February 1999. The relevant parts read as follows:", "Principle 3 – Maximum reservation of capacity", "“1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.", "2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so. ...”", "Principle 6 – Proportionality", "“1. Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned.", "2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention.”", "Principle 7 – Procedural fairness and efficiency", "“1. There should be fair and efficient procedures for the taking of measures for the protection of incapable adults.", "2. There should be adequate procedural safeguards to protect the human rights of the persons concerned and to prevent possible abuses.”", "Principle 11 – Institution of proceedings", "“1. The list of those entitled to institute proceedings for the taking of measures for the protection of incapable adults should be sufficiently wide to ensure that measures of protection can be considered in all cases where they are necessary. It may, in particular, be necessary to provide for proceedings to be initiated by a public official or body, or by the court or other competent authority on its own motion.", "2. The person concerned should be informed promptly in a language, or by other means, which he or she understands of the institution of proceedings which could affect his or her legal capacity, the exercise of his or her rights or his or her interests unless such information would be manifestly without meaning to the person concerned or would present a severe danger to the health of the person concerned.”", "Principle 12 – Investigation and assessment", "“1. There should be adequate procedures for the investigation and assessment of the adult ’ s personal faculties.", "2. No measure of protection which restricts the legal capacity of an incapable adult should be taken unless the person taking the measure has seen the adult or is personally satisfied as to the adult ’ s condition and an up-to-date report from at least one suitably qualified expert has been submitted. The report should be in writing or recorded in writing. ”", "Principle 13 – Right to be heard in person", "“The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.”", "Principle 14 – Duration, review and appeal", "“1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews.", "2. Measures of protection should be reviewed on a change of circumstances and, in particular, on a change in the adult ’ s condition. They should be terminated if the conditions for them are no longer fulfilled.", "3. There should be adequate rights of appeal.”", "69. The United Nations Convention on the Rights of Persons with Disabilities was ratified by the Republic of Lithuania on 27 May 2010, where it entered in force on 17 September 2010. The relevant parts read as follows:", "Article 12 Equal recognition before the law", "“1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.", "2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.", "3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.", "4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person ’ s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person ’ s rights and interests.", "5. Subject to the provisions of this Article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.”", "Article 13 Access to justice", "“1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.", "2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "70. Without relying on any particular provision of the Convention, the applicant complained about the fairness of his incapacitation proceedings.", "71. The Court considers that the complaint falls to be examined under Article 6 § 1 of the Convention. The relevant part reads as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”", "A. Admissibility", "1. Submissions by the parties", "(a) The Government", "( i ) Six-month rule", "72. The Government firstly noted that the decision to declare the applicant legally incapacitated had been adopted on 31 January 2007. However, he had only lodged his application with the Court on 28 March 2008, nearly a year and two months later. The Government admitted that they did not have information to determine if or when the applicant had received the decision regarding his incapacitation. It could only be presumed that his mother, later appointed as his guardian, had informed him of that decision. In any case, it was completely clear that the applicant had found out about the decision on 9 March 2007, as he had referred to it himself in his request to be provided with legal aid on 26 November 2008 (see paragraph 24 above). On the basis of an extract from the applicant ’ s medical records (see paragraph 22 above), the Government argued that on 15 March 2007 the treating doctor had given him a copy of the Šiauliai District Court ’ s decision of 13 March 2007, and in the later decision it had been clearly indicated that he had been declared legally incapable by the Akmenė District Court on 31 January 2007. For the Government, the six ‑ month time-limit had therefore started running from at least 15 March 2007. They also noted the applicant ’ s letter to the Akmenė District Court, in which he had stated that he had seen the prosecutor ’ s request to have him declared incapacitated (see paragraph 18 above). The applicant, however, had not taken any action for nearly a year and a half, within either the domestic system or the international system. The Government were also of the view that the alleged violation of the applicant ’ s rights could not be considered to be of a continuous nature.", "(ii) Exhaustion of domestic remedies", "73. The Government further maintained that the applicant had failed to exhaust the available domestic remedies. Firstly, he had missed the thirty ‑ day time-limit to appeal against the Akmenė District Court ’ s decision of 31 January 2007, as well as the six-month time-limit to extend the time ‑ limit for lodging an appeal, if there had been valid reasons for missing the thirty - day time-limit ( see paragraph 67 above ). Nor had he given any valid reasons why any of those time-limits had been missed. It was therefore reasonable for the Legal Aid Service to have concluded that the appeal against the decision to incapacitate him had had no prospects. The Government also deemed it appropriate to note that in his request for legal aid the applicant had asked the Legal Aid Service to appeal against the aforementioned incapacity decision and had requested that the court extend the missed time-limit for lodging an appeal. However, he had not requested a reopening of the civil proceedings ( atnaujinti procesą ) regarding his legal incapacity, which was a different legal avenue (see paragraph 67 above ). Lastly, he had not challenged before the administrative courts the Legal Aid Service ’ s refusal to assist him either.", "(b) The applicant", "74. The applicant submitted that he had not known about the incapacitation decision of 31 January 2007 or the decision of 6 March 2007 to appoint his mother as his guardian, because he had not taken part in those proceedings. He admitted that he had been “ shown” both decisions by a doctor on 9 March 2007, when he had been taken to the Šiauliai Psychiatric Hospital. Until then, no one had informed him about the proceedings regarding his legal incapacitation. He had not been present at either of the hearings himself, and had not even known when they had taken place.", "75. Lastly, the applicant submitted that his mother would not give him the decisions, and that on 16 December 2008 the Akmenė District Court had refused to give him a copy of the decision regarding his legal incapacity. The applicant also pointed out that on 31 December 2008 the Legal Aid Service had denied his request for legal assistance in connection with the incapacitation proceedings.", "2. The Court ’ s assessment", "( a ) Six-month rule", "76. The Court reiterates that the six-month rule is autonomous and must be construed and applied to the facts of each individual case, so as to ensure effective exercise of the right of individual petition (see, among many other authorities, Büyükdağ v. Turkey ( dec. ), no. 28340/95, 6 April 2000; Fernández -Molina González and Others v. Spain ( dec. ), nos. 64359/01 and others, ECHR 2002 IX (extracts); and Zakrzewska v. Poland, no. 49927/06, § 55, 16 December 2008 ). While taking account of domestic law and practice is an important aspect, it is not decisive in determining the starting point of the six-month period ( see Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 52 and 55, 29 June 2012 ).", "77. The Court points out that the six-month period cannot start to run until the applicant has effective and sufficient knowledge of the final domestic decision. Furthermore, it is for the State relying on the failure to comply with the six-month time-limit to establish the date the applicant became aware of that decision (see Baghli v. France, no. 34374/97, § 31, ECHR 1999 ‑ VIII, and more recently, Sgaibă v. Romania ( dec. ), no. 6005/05, § 25, 27 January 2015).", "78. In the instant case, the Court firstly observes that the Government did not deny that the Akmenė District Court decision had never been served on the applicant, but maintained that it had been sent to the applicant ’ s mother. Be that as it may, service on the applicant ’ s mother in the particular circumstances of this case is not sufficient, for it was precisely on her initiative that the applicant was declared legally incapacitated. Moreover, given that no appeal was ever lodged against the 31 January 2007 decision, it is clear that the mother agreed with it.", "79. The Court does not lose sight of the applicant ’ s statement that he had been “shown” the Akmenė District Court decisions of 31 January and 6 March 2007 regarding his legal incapacitation and the appointment of his legal guardian when he was placed in the Šiauliai Psychiatric Hospital on 9 March 2007 (see paragraphs 24 and 74 above ). That notwithstanding, nothing in the case file indicates that those two decisions were in fact handed over to him. Moreover, it is not unreasonable to state that his mental illness, which had become more serious by that time, made it difficult for him to understand those decisions (see paragraph 20 above). The Court has also carefully scrutinised his medical records, relied on by the Government. It is however unable to find in those records an indication to the effect that either of the two decisions were given to the applicant on 15 March 2007 (see paragraph 22 above).", "80. Lastly, the Court refers, on the one hand, to its settled case-law stating that the applicant must show due diligence in obtaining a copy of the decision deposited with the court ’ s registry (see Mıtlık Ölmez and Yıldız Ölmez v. Turkey ( dec. ), no. 39464/98, 1 February 2005 ). On the other hand, and whilst noting that the UN Convention on the Rights of Persons with Disabilities was not in force in respect of Lithuania at the relevant time, the Court nevertheless stresses the State ’ s obligation to help to ensure that disabled people have effective access to justice (see Article 13 of that Convention, paragraph 6 9 above). Accordingly, it is somewhat struck by the Akmenė District Court ’ s letter to the applicant of 16 November 2008, informing him that the rulings regarding his legal incapacity and guardianship would not be given to him (see paragraph 29 above). Clearly, they were not without meaning to the applicant, nor did knowing their content present any danger to him (see, mutatis mutandis, Principle 11 of Recommendation No. R( 99)4, cited in paragraph 6 8 above).", "81. In these circumstances and in the absence of any irrefutable evidence showing that the knowledge which the applicant presumably had about the Akmenė District Court ’ s decision regarding his legal incapacitation was effective and sufficient (see Papachelas v. Greece [GC], no. 31423/96, § 30, ECHR 1999-II), the Government ’ s preliminary objection that the application was lodged outside the six-month period must be dismissed.", "(b) Exhaustion of domestic remedies", "82. In the particular circumstances of the case, the Court considers that the Government ’ s objections as to the applicant ’ s failure to exhaust domestic remedies is intrinsically linked to his complaint that he did not have a fair hearing when the matter of his legal capacity was decided. These objections should therefore be joined to the merits.", "(c) Conclusion", "83. The Court also finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Submissions by the parties", "(a) The applicant", "84. The applicant complained about the lack of involvement in the proceedings regarding his incapacitation. As a result of those proceedings, however, he had been deprived of all of his “ human and civil ” rights and, in his words, had had no right to appeal to any court on any grounds. He also complained of a lack of assistance on the part of the Akmenė District Court, which had refused to give him a copy of his incapacitation decision, and the Legal Aid Service, which had not supported him when he had attempted to have his legal capacity restored. Another example of this lack of effective access to justice was his forced hospitalisation on 13 March 2007, when a lawyer he had never met had “ represented ” him during the hearing of that day at the Šiauliai District Court. He argued that the lawyer had in fact represented the interests of the Šiauliai Psychiatric Hospital, which earlier that day had asked the Legal Aid Service to secure a lawyer. It was not the practice of the Šiauliai Psychiatric Hospital for a person who was treated there to have a lawyer to represent his interests.", "(b) The Government", "85. The Government argued that the proceedings before the Akmenė District Court for the applicant ’ s legal incapacitation had been fair. The court had firstly assigned a forensic expert to determine whether the applicant ’ s mental health allowed his participation in the proceedings. Notwithstanding the experts ’ negative answer, the court attempted to secure the applicant ’ s appearance at the hearing, having summoned him. Four attempts to serve that summons had failed because the applicant had not opened the door of his apartment.", "86. The Government also submitted that the aim of the applicant ’ s legal incapacitation proceedings had been to protect his interests, for he had been in need of constant care and help from others. Accordingly, his mother and the prosecutor, who had been protecting the public interest, had taken part in the court hearing on 31 January 2007, after social services had consented to the incapacitation proposal and asked the court to hear the case in their absence. The applicant ’ s mother had been questioned and had described the applicant ’ s state of health and expressed concern for his life. In this connection, the Government also noted that under Article 464 of the Code of Civil Procedure, the court was allowed to decide the case without the person subject to the incapacitation proceedings, if he could not be present for objective reasons (see paragraph 34 in fine above).", "87. The Government admitted that the Legal Aid Service had refused to provide free legal aid to appeal against the decisions of 31 January and 6 March 2007. However, there had been valid reasons for this (see paragraph 73 above). Lastly, the Government did not have any information that there would be a conflict of interests between the applicant and his mother.", "2. The Court ’ s assessment", "(a) General principles", "88. In most of the previous cases before the Court involving “persons of unsound mind”, the domestic proceedings concerned their detention and were thus examined under Article 5 of the Convention. However, the Court has consistently held that the “procedural” guarantees under Article 5 §§ 1 and 4 are broadly similar to those under Article 6 § 1 of the Convention (see Stanev v. Bulgaria [GC], no. 36760/06, § 232, ECHR 2012 and the case-law cited therein). In deciding whether the proceedings in the present case for the reopening of the guardianship appointment were “fair”, the Court will therefore have regard, mutatis mutandis, to its case-law under Article 5 § 1 (e) and Article 5 § 4 of the Convention (see D.D. v. Lithuania, no. 13469/06, § 116, 14 February 2012 ).", "89. In the context of Article 6 § 1 of the Convention, the Court accepts that in cases involving a mentally-ill person the domestic courts should also enjoy a certain margin of appreciation. Thus, for example, they can make appropriate procedural arrangements in order to secure the good administration of justice, protection of the health of the person concerned, and so forth (see Shtukaturov v. Russia, no. 44009/05, § 68, ECHR 2008 ).", "90. The Court accepts that there may be situations where a person deprived of legal capacity is entirely unable to express a coherent view. It considers, however, that in many cases the fact that an individual has to be placed under guardianship because he lacks the ability to administer his affairs does not mean that he is incapable of expressing a view on his situation. In such cases, it is essential that the person concerned should have access to court and the opportunity to be heard either in person or, where necessary, through some form of representation. Mental illness may entail restricting or modifying the manner of exercise of such a right, but it cannot justify impairing the very essence of the right, except in very exceptional circumstances, such as those mentioned above. Indeed, special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental health issues, are not fully capable of acting for themselves (see D.D. v. Lithuania, cited above, § 118).", "91. The Court also reiterates that there is the importance of ensuring the appearance of the fair administration of justice and a party to civil proceedings must be able to participate effectively, inter alia, by being able to put forward the matters in support of his or her claims. Here, as with other aspects of Article 6, the seriousness of what is at stake for the applicant will be of relevance to assessing the adequacy and fairness of the procedures (see P., C. and S. v. the United Kingdom, no. 56547/00, § 91, ECHR 2002-VI).", "(b) Application to the present case", "92. The Court firstly turns to the question of whether the applicant was aware of his incapacitation proceedings, so that he could effectively take part in them. Looking at the proceedings in a chronological order, it observes that there is nothing in the medical expert report of 8 January 2007 to conclude that when examined the applicant, who had been seen regularly by psychiatrists since 1990, was clearly informed or realised that this time it was his legal capacity at stake (see paragraph 13 above; see also Shtukaturov, cited above, § § 15 and 69).", "93. The Court also has regard to the fact that the Akmenė District Court took efforts proprio motu to notify the applicant about the proceedings, but on 23, 24, 25 and 30 January the summons was not delivered because the applicant did not open the door of his apartment (see paragraph 15 above). Moreover, the Court accepts that the applicant should have learned about the incapacitation proceedings on at least 30 January 2007, when, in his words, he had found the prosecutor ’ s request for his incapacitation (see paragraph 18 above). Be that as it may, the Akmenė District Court ruled on the issue already the following day, and there is nothing to indicate that the applicant ’ s written plea of 5 February 2007 received any reaction from the court. The Court therefore concludes that the applicant did not participate in the 31 January 2007 hearing before the Akmenė District Court in any form. It remains to be ascertained whether, in the circumstances, this was compatible with Article 6 of the Convention.", "94. The Government argued that the decisions taken by the national judge had been lawful in domestic terms. However, the crux of the complaint is not the domestic legality but the “fairness” of the proceedings from the standpoint of the Convention and the Court ’ s case-law.", "95. In a number of previous cases (concerning compulsory confinement in a psychiatric hospital) the Court confirmed that a person of unsound mind must be allowed to be heard either in person or, where necessary, through some form of representation ( see, for example, Winterwerp v. the Netherlands, 24 October 1979, § 60, Series A no. 33 ). In Winterwerp, the applicant ’ s freedom was at stake. However, in the present case the outcome of the proceedings was at least equally important for the applicant: his personal autonomy in almost all areas of his life was in issue (see paragraph 119 below).", "96. The applicant was indeed an individual with a history of psychiatric troubles. From the case material, however, it appears that despite his mental illness, he had been a relatively independent person. Indeed, and despite his suicide attempts in 2004 and 2006, for most of the time he lived alone, and could apparently take care of himself. Furthermore, the Court notes that the applicant played a double role in the proceedings: he was an interested party, and, at the same time, the main object of the court ’ s examination. His participation was therefore necessary, not only to enable him to present his own case, but also to allow the judge to have at least brief visual contact with him, and preferably question him to form a personal opinion about his mental capacity (see Shtukaturov, cited above, § 72). Given that the potential finding of the applicant being of unsound mind was, by its very nature, largely based on his personality, his statements would have been an important part of his presentation of his case (see D.D. v. Lithuania. , cited above, § 120; see also Principle 13 of the Recommendation No. R (99) 4 by the Council of Europe ).", "97. The Court has already acknowledged the Akmenė District Court ’ s attempts to summons the applicant (see paragraph 93 above). Given that the attempts to secure his presence by sending a summons to his address failed for reasons beyond the district court ’ s control, it remains to be seen whether his absence could have been compensated for by other means, or through some form of representation.", "98. The Court has examined the Government ’ s argument that the applicant ’ s mother and the prosecutor attended the 31 January 2007 court hearing on the merits. However, and without doubting their good intentions, in the Court ’ s opinion their presence did not make the proceedings truly adversarial. Indeed, whilst by law the prosecutor was performing the function of defending the public interest, there was no one at the court hearing who could, on the applicant ’ s behalf, rebut the arguments or conclusions by his mother or the prosecutor. For the Court, taking into account the principle of procedural fairness (see Principle 7 in paragraph 68 above), it would have been appropriate for Akmenė District social services to pay more attention to the merits of the applicant ’ s case. However, their involvement was restricted to a simple indication of the word “ agree ” in their response to the prosecutors ’ request, as sent to the Akmenė District Court (see paragraph 14 above), without providing a more elaborate or comprehensive response. In this connection, the Court also draws particular attention to the new Lithuanian legislation which requires social workers to provide what appears to be a very specific conclusion as to the person ’ s capacity or incapacity to act in particular areas ( see paragraph 55 above ). The Court also notes that after legislative changes in 2015 the State [of Mind] of Incapacitated Persons ’ Review Commission, which has a very specific role of monitoring people with disabilities in order to protect their rights, was brought into Lithuanian legislation (see paragraph 52 above), thus making the current legal background substantially different from that which existed in 2007, when the applicant ’ s case was decided by the Akmenė District Court. The lack of any meaningful involvement on the part of social services in the applicant ’ s case, especially in view of the clear European standards that in 2007 already existed and that prompted amendments to Lithuanian legislation in order to rectify the shortcomings of the legislation applicable at the material time (see paragraphs 44, 68 and 69 above), leads the Court to conclude that his interests at the Akmenė District Court were not represented to make the proceedings fair in any form.", "99. Furthermore, it transpires from the Akmenė District Court decision of 31 January 2007 that the court ruled exclusively on the basis of the psychiatric report without summoning the medical expert who wrote it for questioning (see D.D. v. Lithuania, cited above, § 120 ). Furthermore, that medical expert report to the effect that the applicant could not take care of himself appears to be based on an account by the applicant ’ s mother, without there being any proof that those circumstances had been verified by the State or municipal authorities themselves. Similarly, the Court observes that the Akmenė District Court did not call anyone else as a witness so that more light could be shed on the applicant ’ s state of health (see paragraph 62 above).", "100. Lastly, the Court notes that it must always assess the proceedings as a whole, including the decision of the appellate court (see C.G. v. the United Kingdom, no. 43373/98, § 35, 19 December 2001). It also considers that the principle that particular attention must be given to the protection of the rights of the vulnerable extends to appeal proceedings. The Lithuanian Supreme Court clearly shared the view that rights of persons with disabilities had to be guaranteed at all stages of court proceedings (see paragraph 65 above). The Court has also held that the right to request that a court review a declaration of incapacity is one of the most important rights for the person concerned (see Kędzior v. Poland, no. 45026/07, § 89, 16 October 2012).", "101. In the present case, the Court points out that the applicant contacted the Legal Aid Service with a request to appeal against his incapacity decision and the decision to appoint a legal guardian. The Court reiterates its earlier finding that the decision of 31 March 2007 was never handed over to the applicant (see paragraphs 79 -81 above). Accordingly, he may not be blamed for not appealing against that decision within thirty days, or for asking to extend the time - limit for appeal within six months of the date the incapacity decision was adopted. In this connection, it is also relevant that for the period of 9 March to 22 June 2007 the applicant was in the Šiauliai Psychiatric Hospital, where, this not having been disputed by the Government, he had no access to a lawyer. Against this background, and whilst accepting that by the time the applicant contacted the Legal Aid Service on 26 November 2008 the time-limits of thirty days and six months had already expired, the Court can only hold that the Legal Aid Service ’ s response was purely formalistic and limited to the question of time-limits which, in their view, the applicant had to observe (see paragraphs 25 and 26 above; also see paragraph 73 above regarding the Government ’ s suggestion about another legal avenue theoretically available to the applicant).", "102. The Court reiterates that the applicant was a person suffering from mental illness, a factor which militated in favour of the State employing measures to help him to ensure effective access to justice (see Article 13 of the UN Convention on the Rights of Persons with Disabilities, paragraph 69 above). Accordingly, and given the complexity of the legal issues at stake, the Court cannot share the Government ’ s view that in his plea to the Legal Aid Service the applicant should have specified the request to reopen civil proceedings as the appropriate legal avenue, whereas in fact he only asked to extend the time-limit to lodge an appeal against the 31 January 2007 decision (see paragraphs 24 and 73 above). To require him to have such an understanding of the law would be plainly disproportionate. The Court also is mindful of the fact that at the material time the applicant, once declared incapacitated, had no legal standing and thus could not bring any court action himself, including against the Legal Aid Service. In the light of the foregoing considerations, the Court dismisses the Government ’ s preliminary objection of failure to exhaust domestic remedies (see paragraph 73 above).", "103. As to the quality of legal assistance received by the applicant from the Lithuanian authorities, the Court lastly gives weight to his statement that during the proceedings for his forced hospitalisation the lawyer appointed by the Legal Aid Service “ represented ” him without even having seen or talked to him (see paragraphs 21 and 84 above). The Court nevertheless notes legislative changes that are a precondition for such practice to become extinct in future. Accordingly, from 1 January 2016 the Legal Aid Service are required by law to provide appropriate facilities to enable patients and their lawyers to communicate (see paragraph 59 above), which seems particularly relevant where a person is being held in isolation in a psychiatric hospital, as was the situation in the instant case.", "104. In view of the above considerations, the Court holds that at the material time the regulatory framework for depriving people like the applicant of their legal capacity did not provide the necessary safeguards. The Court will revert further to this matter in the context of the applicant ’ s complaint under Article 8 of the Convention.", "105. The Court also concludes that the applicant was deprived of a clear, practical and effective opportunity to have access to court in connection with his incapacitation proceedings, and particularly in respect of his request to restore his legal capacity (see Kędzior, cited above, § 90 ). There has, accordingly, been a violation of Article 6 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "106. The applicant complained that by depriving him of his legal capacity, the authorities had stripped him of his right to private life.", "107. The Court considers that the complaint falls to be examined under Article 8 of the Convention. The relevant part reads as follows:", "“1. Everyone has the right to respect for his private ... life...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Submissions by the parties", "108. The applicant argued that he was conscientious, lived a normal life alone and took proper care of himself. That notwithstanding, because of his legal status as an incapacitated person, he had been effectively barred from taking part in community life and developing relationships with anyone of his choosing. In particular, he could not find a job, take part in elections, get married, enter into legal transactions or even draw up a will. His situation was exacerbated by the fact that, in accordance with Article 2.10 of the Civil Code, a request to restore legal capacity could only be lodged by a person ’ s family members, a care institution or a prosecutor. However, he had been prevented from directly applying to a court for restoration of his legal capacity. An incapacitated person had to rely on the good will of others, but not on objective factors such as improvement of health. This was impossible in the applicant ’ s case, because his mother considered him to be mentally ill, whereas he was healthy.", "109. The Government accepted that the applicant ’ s incapacitation could be considered to be an interference with his right to respect for his private life. However, that interference had a basis in domestic law and was aimed at protecting his interests. Lastly, and given that his mental illness had worsened to such a level that he had become a danger to himself, as illustrated by his attempts to commit suicide, the interference was necessary and proportionate.", "110. For the Government, it was also important that the Akmenė District Court ’ s decision to declare the applicant legally incapacitated had been based on his state of health. However, in compliance with Article 469 of the Code of Civil Procedure, where a person ’ s health improves considerably, the question of legal capacity could be examined again. According to the established practice of the courts, a person could initiate a review of his capacity by asking his guardian, care institution or a prosecutor to start proceedings to change his status. He could also submit a request to be provided with “ secondary ” legal aid himself. That notwithstanding, the Government had no information that the applicant had ever complained of a conflict of interests between him and his mother.", "B. The Court ’ s assessment", "1. Admissibility", "111. The Court has held that deprivation of legal capacity undeniably constitutes a serious interference with the right to respect for a person ’ s private life protected under Article 8 (see, for example, Matter v. Slovakia, no. 31534/96, § 68, 5 July 1999). It reiterates that Article 8 secures to the individual a sphere within which he or she can freely pursue the development and fulfilment of his personality (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 95, ECHR 2003 ‑ IX (extracts) ). It has not been disputed by the Government that the Akmenė District Court ’ s decision of 31 January 2007 deprived the applicant of his capacity to act independently in almost all areas of his life : at the relevant time he was no longer able to sell or buy any property on his own, work, choose a place of residence, marry, or bring a court action in Lithuania. The Court cannot but hold that the deprivation of legal capacity thus amounted to an interference with his right to respect for his private life (see Shtukaturov, cited above, § 83).", "112. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits", "113. The Court reiterates that any interference with an individual ’ s right to respect for his private life will constitute a breach of Article 8 unless it was “in accordance with the law”, pursued a legitimate aim or aims under Article 8 § 2 and was “necessary in a democratic society” in the sense that it was proportionate to the aims sought.", "114. In the instant case, the Court acknowledges that the applicant ’ s incapacitation proceedings had a legal basis, namely Article 2.10 of the Civil Code, Article 19 of the Law on Prosecution Service and Article 46 5 of the Code of Civil Procedure ( see paragraphs 11 and 16 above ). The Court also has no reason to doubt that the measure was taken in the applicant ’ s interests.", "115. It remains to be examined whether the applicant ’ s legal incapacitation was necessary and proportionate.", "(a) General principles", "116. The applicant claimed that his full incapacitation had been an inadequate response to the problems he had experienced. Indeed, under Article 8 of the Convention the authorities had to strike a fair balance between the interests of a person of unsound mind and the other legitimate interests concerned. However, as a rule, in such a complex matter as determining somebody ’ s mental capacity, the authorities should enjoy a wide margin of appreciation (also see paragraph 125 below). This is mostly explained by the fact that the national authorities have the benefit of direct contact with the people concerned and are therefore particularly well placed to determine such issues. The task of the Court is rather to review under the Convention the decisions taken by the national authorities in the exercise of their powers in this respect (see Shtukaturov, cited above, § 87).", "117. At the same time, the margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. A stricter scrutiny is called for in respect of very serious limitations in the sphere of private life ( ibid., § 88).", "118. Furthermore, the Court reiterates that whilst Article 8 of the Convention contains no explicit procedural requirements, the decision ‑ making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8 (see Görgülü v. Germany, no. 74969/01, § 52, 26 February 2004). The extent of the State ’ s margin of appreciation thus depends on the quality of the decision-making process. If the procedure was seriously deficient in some respect, the conclusions of the domestic authorities are more open to criticism (see Shtukaturov, cited above, § 89 ).", "(b) Application to the present case", "119. The Court firstly notes that the interference with the applicant ’ s right to respect for his private life was very serious. As a result of his incapacitation, he became fully dependent on his mother as his guardian in almost all areas of his life, and this was clearly recognised by the Lithuanian Supreme Court (see paragraphs 61-64 above).", "120. The Court has already found that the proceedings before the Akmenė District Court did not give the judge an opportunity to examine the applicant in person. In such circumstances, it cannot be said that the judge had the benefit of direct contact with the person concerned, which would normally call for judicial restraint on the part of the Court. Furthermore, the applicant ’ s incapacitation proceedings ended at one level of jurisdiction, his participation in that decision-making process being reduced to nothing.", "121. Turning to the Akmenė District Court ’ s decision of 31 January 2007, the Court observes that it essentially relied on two pieces of evidence − the forensic expert report and the testimony of the applicant ’ s mother. The Court admits that the effect of the applicant ’ s illness on his social life, health and pecuniary interests was depicted more clearly by his mother, who stated that her son had recently lived apart, but could no longer take care of himself, did not go out or take medication, and would not pay maintenance fees for his apartment (see paragraphs 10 and 16 above ).", "122. Because of the complexity of such an assessment and the special knowledge it requires, the Court finds that it was certainly correct that the Akmenė District Court sought to obtain an expert opinion on the applicant ’ s mental health, as it had been instructed by Article 464 of Code of Civil Procedure (see paragraph 34 above). That report, however, mainly referred to the applicant ’ s suffering from schizophrenia and his ensuing mistrust and feelings of persecution, without explaining what kind of actions, except for his inability to take part in the court proceedings, he was capable of understanding or controlling. It is true that the expert referred to the applicant ’ s inability to take care of his daily needs. However, that was more of a narrative of his mother ’ s opinion than an independent analysis by the psychiatrist.", "123. The Court does not cast doubt on the competence of the doctor who examined the applicant and accepts that the latter was seriously ill. However, the existence of a mental disorder, even a serious one, cannot be the sole reason to justify full incapacitation. By analogy with the cases concerning deprivation of liberty, in order to justify full incapacitation the mental disorder must be “of a kind or degree” warranting such a measure (see Shtukaturov, cited above, § 94; also see the Lithuanian Supreme Court ’ s analogous conclusion in paragraph 62 above ). However, the questions to the doctor, as formulated by the judge, did not concern “the kind and degree” of the applicant ’ s mental illness (see paragraph 12 above). As a result, the report of 8 January 2007 did not analyse the degree of his incapacity in sufficient detail.", "124. It transpires that the existing legislative framework did not leave the Akmenė District Court any other choice. In case of mental illness, Article 2.10 of the Lithuanian Civil Code at that time distinguished only between full capacity and full incapacity, but did not provide for any “borderline” situation other than for drug or alcohol addicts (see paragraph 33 above). At this juncture, the Court considers that where a measure of protection is necessary it should be proportionate to the degree of capacity of the person concerned and tailored to his individual circumstances and needs ( see Principle 6 of Recommendation No. R( 99)4, paragraph 68 above). Contrary to this standard, Lithuanian legislation did not provide for a tailor-made response. The Court thus finds that the guardianship regime was not geared to the applicant ’ s individual case but entailed restrictions automatically imposed on anyone who had been declared incapable by a court. This conclusion is further confirmed by the latest legislative changes and, in particular, the explanatory memorandum by the Ministry of Justice, wherein the flaws of the former legal regulation were pointed. Partial incapacity was thus introduced to Lithuanian legislation on 1 January 2016 (see paragraphs 44 et seq. above).", "125. The Court reiterates its view that the authorities in principle have broad discretion in determining a person ’ s mental capacity (see paragraph 116 above). However when restrictions on the fundamental rights apply to a particularly vulnerable group in society that has suffered considerable discrimination in the past, the Court has also held that then the State ’ s margin of appreciation is substantially narrower and must have very weighty reasons for the restrictions in question. The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice could entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs. In the past, the Court has identified a number of such vulnerable groups that suffered different treatment, persons with mental disabilities being one of them (see Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010, and Kiyutin v. Russia, no. 2700/10, § 63, ECHR 2011).", "126. The applicant has put much emphasis on the fact that he was unable to himself request that the court lift his legal incapacity. Indeed, the applicant ’ s incapacitation, which applied for an indefinite period, at the material time could not have been challenged other than by his guardian, on whose initiative the applicant was incapacitated, a care institution, whose involvement in the applicant ’ s case the Court has already found to be lacking (see paragraph 98 above), or a public prosecutor. The Court has already held, in respect of partially incapacitated individuals, that given the trends emerging in national legislation and the relevant international instruments, Article 6 § 1 of the Convention must be interpreted as guaranteeing a person, in principle, direct access to a court to seek restoration of his or her legal capacity (see Stanev, cited above, § 245). In the latter judgment the Court observed that eighteen of the twenty national legal systems studied in 2011 provided for direct access to the courts for any partially incapacitated individuals wishing to have their status reviewed. In seventeen States such access was open even to those declared fully incapable ( ibid., §§ 95 and 243). This indicates that there is now a trend at European level towards granting legally incapacitated individuals direct access to the courts to seek restoration of their capacity. The Court has also had occasion to clarify that proceedings for restoration of legal capacity are directly decisive for the determination of “civil rights and obligations”. It may also be appropriate in cases of this kind that the domestic authorities establish after a certain lapse of time whether such a measure continues to be justified. Re-examination is particularly justified if the person concerned requests it (see Matter, cited above, § § 51 and 68 ).", "127. The Court lastly takes note that recently the Lithuanian legislation was amended and from 1 January 2016 the applicant is finally able to initiate proceedings aimed at varying his incapacitation decision (see paragraph 57 above). However, this positive development cannot alter the above conclusion, which relates to the period prior to entry into force of the aforementioned amendment (see Berková v. Slovakia, no. 67149/01, § § 174 and 175, 24 March 2009 ).", "128. In sum, having examined the decision-making process and the reasoning behind the domestic decisions, the Court concludes that the interference with the applicant ’ s right to respect for his private life was disproportionate to the legitimate aim pursued. There was, therefore, a breach of Article 8 of the Convention on account of the applicant ’ s full incapacitation.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "129. Lastly, the applicant complained about his placement in the Šiauliai Psychiatric Hospital in 2004.", "130. The Court observes, however, that in 2014 the applicant ’ s complaint was dismissed by the Šiauliai Regional Court as having no basis (see paragraph 32 above). In the light of the materials in its possession, the Court sees no reason to defer from that conclusion. Accordingly, this complaint must be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "131. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "132. The applicant did not submit any claims for pecuniary or non ‑ pecuniary damage, but requested a review of his diagnosis with schizophrenia and the decision regarding his legal incapacity.", "133. In the light of his submissions and the material in the case file, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.", "B. Costs and expenses", "134. The applicant did not claim any costs or expenses. Accordingly, the Court makes no award under this head." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1990.", "A. Background to the case", "6. The applicant is a man who is intellectually disabled. On 14 February 2001 he was taken, with his two brothers, into public care by the child welfare authorities and placed temporarily with a foster family with whom they had already been living since August 2000. The foster family lived in a village situated about 50 km from the applicant ’ s home town, which is in the South of Finland.", "7. In June 2006 the foster family, the applicant and one of his brothers moved to a village in the North of Finland. The removal of the children was not authorised by the competent child welfare authority. In June 2007 the applicant finished his compulsory school education as a special needs student integrated into a normal school. Thereafter his foster parents planned to place him in a vocational school some 300 km away from their village, without authorisation by the competent child welfare authority.", "8. On 11 July 2007 the competent child welfare authority decided to remove the applicant from the foster family and to place him in a disabled children ’ s home in his home town in southern Finland. The authority found that the foster care had not been satisfactory in the light of the fact that the foster parents had made important decisions without consulting the child welfare authorities, such as moving north and planning to place the applicant in a vocational school 300 km away from their home. The foster parents brought an appeal in court against that decision, but the decision was upheld by the Administrative Court ( hallinto-oikeus, förvaltningsdomstolen ) on 18 February 2008 and subsequently by the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen ) on 10 December 2008.", "9. On 31 July 2007 the applicant was placed in a children ’ s home in his home town in southern Finland. One of his brothers was placed in the same home in the autumn of 2007.", "10. On 23 July 2008 the applicant turned 18. On 13 August 2008 he began studying at a local vocational school. On 4 November 2008 a mentor ( edunvalvoja, intressebevakare ) was appointed for the applicant for matters other than those pertaining to his person. The applicant could thus freely make his own decisions in matters pertaining to his own person.", "11. On 30 December 2008 the social welfare authorities requested the District Court ( käräjäoikeus, tingsrätten ) to appoint a mentor for the applicant also for matters pertaining to his person. The request was, inter alia, based on the fact that a conflict had emerged between the child welfare service and the applicant ’ s former foster parents as to where the applicant should live. The appointment of an external mentor was therefore needed in order to assess the applicant ’ s best interests and settle the matter accordingly. The applicant as well as his biological parents were heard before the court and none of them objected to the appointment of such a mentor.", "12. On 25 January 2009 the former foster parents took the applicant to the North of Finland, invoking his decision to move there to live with them. He considered them to be his real family. The next day, the social welfare authorities arrived with the police to fetch the applicant and to take him back, against his will, to his home town. He was placed in his home town in a special living unit for intellectually disabled adults.", "13. On 18 June 2009 the District Court, on the basis of the Guardianship Service Act, appointed a mentor for the applicant in matters concerning his property and economy, as well as matters pertaining to his person to the extent that the applicant was unable to understand their significance. The court found that, owing to his diminished mental faculties, the applicant was incapable of looking after his own interests and taking care of his personal affairs. The decision was based on medical records concerning the applicant ’ s level of development and on submissions according to which the applicant was gullible and keen on small children ’ s play. The appointed mentor was an official of the local public legal aid office entrusted with functions of this kind.", "14. On 7 February 2011, after having received a psychologist ’ s report dated 26 November 2010 on the applicant, the appointed mentor decided, against the applicant ’ s will, that it was in his best interests for him to live in his home town, where his family members also lived. He had better educational and work opportunities there than in the village in the North of Finland, where he only knew his elderly former foster parents. The applicant was given a possibility to go for holidays to his foster parents in the North of Finland.", "B. Impugned proceedings", "15. On 8 April 2011 the applicant asked the District Court to discharge the mentor appointed for him from her duties as far as matters pertaining to his place of residence and education were concerned. He requested that another person of his choosing be appointed as his mentor in those matters.", "16. On 22 June 2011 the District Court, having heard the applicant in person, as well as witnesses including the applicant ’ s mentor, his former foster mother, his brother and two staff members from his housing service, refused his request. In its judgment, the court put on record the various testimonies. According to the record of the testimony of the applicant ’ s mentor, she had discussed with the applicant his plan to move prior to her decision. The mentor was of the view that the applicant did not understand all the consequences of the plan, and did not realise that the good things in his present situation would not be relocated with him. In the light of all the circumstances, the mentor considered that the move would have been against the applicant ’ s interests.", "17. As regards the facts, the court recalled the background of the previous decision, taken on 18 June 2009 (see paragraphs 11 and 13 above). The court further noted that, according to an expert evaluation dated 26 November 2010 and established by a psychologist, the applicant ’ s decision-making skills were equal to those of a child aged between six and nine years. Consequently, the evaluation concluded that the applicant was not able to consider whether his plans about future were realistic and what consequences or implications they would have. The court noted that the applicant had told the court that he had no particular complaints about his current situation and that according to the witness statements he enjoyed his apartment and work in his home town. There was no evidence that the applicant ’ s situation in his home town was not good. The court found that the applicant clearly did not understand what it would be like to live in a remote part of the country, especially as he had previously lived there for only one year, and what the implications of the move would be for his situation. Moreover, the court found it uncertain how clear or strong the applicant ’ s will actually was, taking into account the evidence regarding his gullibility. It was likely that his opinion was influenced by that of the former foster parents. The applicant ’ s development had improved in his home town and he had been able to live in a special unit for intellectually disabled adults, to go to work and to cycle independently around town. The applicant had in his home town a support network consisting of relatives, friends and staff of the social welfare authorities, a job, hobbies and educational possibilities. Due to the remote and isolated location of the former foster parents ’ home, the applicant would miss out on all these possibilities if he were to move there. The court further noted that according to the plan, the applicant would attend a vocational school far away from his new home, requiring daily long-distance trips each school day, more specifically a 15 km taxi ride to a bus station followed by a 70 km bus transport, and the reverse after school. The court was in doubt as to whether it was reasonable to expect that the applicant could cope with such demands on a daily basis.", "18. As matter of law, the District Court stated that as, on the evidence, the applicant was not able to understand the significance of the envisaged decision, the mentor was not required, or even permitted, to resolve the question of the applicant ’ s place of residence in accordance with the applicant ’ s own wishes. Under such circumstances the mentor was required to take the decision on the basis of an assessment of the applicant ’ s best interests.", "19. Taking into account the evidence and the factual findings referred to above (see paragraph 17 above ), the District Court concluded that it was in the applicant ’ s best interests to remain in his home town. The mentor had not acted in breach of her powers and the District Court found no reason to replace the mentor by another person as regards matters concerning the applicant ’ s place of residence and his education.", "20. On 15 July 2011 the applicant lodged an appeal with the Turku Court of Appeal ( hovioikeus, hovrätten ). He pointed out that the Finnish Constitution guaranteed everyone the right to choose their place of residence. Moreover, a mentor had to enjoy the confidence of his or her client, which was not so in the present case.", "21. On 9 May 2012 the Turku Court of Appeal, after holding an oral hearing, rejected the applicant ’ s appeal and upheld the District Court ’ s decision by two votes to one. The Court of Appeal found no reason to deviate from the assessment of the evidence as conducted by the District Court and affirmed the conclusions reached by the latter. The dissenting judge found that the former foster mother had been the only adult with whom the applicant had had a long-standing and safe relationship in his life. The applicant had clearly understood the importance of this relationship in his life, he knew the former foster family and what life with them entailed, although he might not be able to understand all the implications of the envisaged move. When the applicant had been removed from the former foster family in 2007 and placed in a children ’ s home in Southern Finland, no specific reasons had been given as to why this measure had been in the applicant ’ s best interests. The decision taken subsequently by the mentor in February 2011 had merely confirmed the earlier decision. These decisions had created distrust between the applicant and his mentor. As both the present mentor and the proposed replacement were equally competent, the one who had the applicant ’ s trust should be chosen.", "22. By a letter dated 6 July 2012 the applicant lodged an appeal with the Supreme Court ( korkein oikeus, högsta domstolen ), reiterating the grounds of appeal already submitted before the Appeal Court.", "23. On 8 February 2013 the Supreme Court refused the applicant leave to appeal.", "C. The applicant ’ s current situation", "24. According to the information provided by the Government, in July 2013 the applicant learned that his foster father had died and he attended his funeral in Northern Finland. From 2010 to 1 January 2015 the applicant resided in his home town in a block of flats providing special care for persons with intellectual disability. Since 2 January 2015 he has been residing in sheltered accommodation, in a small two-room flat. He is employed by his home town, undertaking work five days a week in a shelter for intellectually disabled people. He is a talkative, efficient and well-liked employee and fits in very well in the working community.", "25. The applicant ’ s former foster mother is in contact with the applicant via telephone but the frequency of their contact is not known. She moved to the eastern part of Finland before Christmas 2015 and invited the applicant to spend Christmas with her, but in the end he decided not to visit her. Instead, the applicant spent Christmas with his brother and other relatives. According to the Government, the applicant has not discussed the possibility of moving elsewhere for a long time. He is happy with his work and plays floorball twice a week as a hobby. The applicant states that he has stopped talking about his desire to move since there is no point in doing so, given the fact that the social welfare authorities do not want him to leave his home town. Although he now has a girlfriend in his home town, he maintains that his true and most sincere wish is still to live with or near to his former foster mother. There is nothing in his home town that keeps him there or makes him want to stay there.", "II. Principles and measures to safeguard adults and children with disabilities against abuse", "1. Protection of human rights", "Member States have a duty to protect the human rights and fundamental freedoms of all their citizens. They should ensure that people with disabilities are protected at least to the same extent as other citizens.", "Member States should recognise that abuse is a violation of human rights. People with disabilities should be safeguarded against deliberate and/or avoidable harm at least to the same extent as other citizens. Where people with disabilities are especially vulnerable, additional measures should be put in place to assure their safety. ”", "48. The Council of Europe Disability Strategy 2017-2023 sets out, inter alia, the following:", "“3.4. Equal recognition before the law", "Equal recognition before the law, as defined among others by the UNCRPD (Article 12) refers to the two parts of legal capacity, the capacity to hold rights and duties and the capacity to act on them. Legal capacity and access to justice are essential to real participation in all areas of life and full inclusion of persons with disabilities in society. Legal capacity is in fact connected to all human rights and their enjoyment.", "...", "States are required under the UNCRPD, as far as possible to replace substituted decision-making with systems of supported decision-making. Possible limitations on decision-making should be considered on an individual basis, be proportional and be restricted to the extent to which it is absolutely necessary. Limitations should not take place when less interfering means are sufficient in light of the situation, and accessible and effective legal safeguards must be provided to ensure that such measures are not abused.", "Council of Europe bodies, member States and other relevant stakeholders should seek to:", "a) Support member States in their efforts to improve their legislation, policies and practices with regard to ensuring legal capacity of persons with disabilities.", "b) Identify, collect and disseminate existing good practices on supported decision-making systems and practices that persons with disabilities have available for being able to exercise their legal capacity and have access to choices and rights. ”" ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Constitution", "26. Article 9, paragraph 1, of the Finnish Constitution ( Suomen perustuslaki, Finlands grundlag, Act no. 731/1999) provides the following:", "“Finnish citizens and foreigners legally resident in Finland have the right to move freely within the country and to choose their place of residence.”", "B. The Guardianship Services Act", "27. Section 1 of the Guardianship Services Act ( laki holhoustoimesta, lagen om förmyndarverksamhet, Act no. 442/1999) provides the following:", "“The objective of guardianship services is to look after the rights and interests of persons who cannot themselves take care of their financial affairs owing to incompetence, illness, absence or another reason.", "If the interests of someone in respect of a non-financial affair need to be looked after, this shall be a task for guardianship services in so far as provided below.”", "28. Section 8 of the Act sets out the basic provisions concerning the appointment of deputies:", "“ If an adult, owing to illness, disturbed mental faculties, diminished health or another comparable reason, is incapable of looking after his/her interests or taking care of personal or financial affairs in need of management, a court may appoint a mentor for him/her. Where necessary, a guardianship authority shall file a petition with a district court for the appointment of the mentor.", "The mentor may be appointed if the person whose interests need to be looked after does not object to the same. If he/she objects to the appointment of the mentor, the appointment may nonetheless be made if, taking into account his/her state and need for a mentor, there is no sufficient reason for the objection.", "The task of the mentor may be restricted to cover only a given transaction or property. ”", "29. Section 14 makes it clear that the appointment of a mentor does not deprive the ward of his or her legal capacity:", "“ The appointment of a mentor shall not disqualify the ward from administering his/her property or entering into transactions, unless otherwise provided elsewhere in the law. ”", "30. Section 29, subsections 1 and 2, of the Act govern the powers of a mentor :", "“ The mentor shall be competent to represent the ward in transactions pertaining to the ward ’ s property and financial affairs, unless the appointing court has otherwise ordered or unless it has been otherwise provided elsewhere in the law.", "If the court has so ordered, the mentor shall be competent to represent the ward also in matters pertaining to his/her person, if the ward cannot understand the significance of the matter. However, the mentor shall not have such competence in matters subject to provisions to the contrary elsewhere in the law. ”", "31. Under section 42 of the Act,", "“[a] mentor appointed for an adult shall see to it that the ward is provided with the treatment, care and therapy ... deemed appropriate in view of the ward ’ s need of care and other circumstances, as well as the ward ’ s wishes.”", "32. Section 43, subsections 1 and 2, of the Act provide that", "“[b]efore the mentor makes a decision in a matter falling within his or her remit, he or she shall ask for the opinion of the ward if the matter is deemed important from the ward ’ s point of view and if a hearing can be arranged without considerable inconvenience.", "However, no hearing shall be necessary if the ward cannot understand the significance of the matter.”", "33. According to the travaux préparatoires to the Guardianship Services Act (LaVM 20/1998 vp and HaVL 19/1998 vp), the most central substantive principle of the Act is that of respect for human dignity. This means that any decision on the protection of a person with deficient functional ability ( “ the ward ” ) must be based on the inviolability of human and basic rights and liberties. Preference is to be given to the ward ’ s interests and to the need to safeguard the ward ’ s opportunities to participate in the decision-making concerning him or her. The principle of respect for human dignity is supplemented by the principles of necessity and proportionality. The principle of necessity means that the ward must be permitted to maintain his or her legal competence as extensively as possible, and that that competence can be restricted only to the extent necessary to protect the ward. The principle of proportionality means that the measures to protect the ward must be determined on a case-by-case basis and according to the need for such protection. On the other hand, it may be necessary to restrict the right of self-determination of the ward in certain situations in order to protect his or her own interests. Thus, a balance must be struck between the need for protection and the right of self-determination.", "C. The Act on the status and rights of social welfare clients", "34. A social welfare client ’ s rights and obligations are defined in Chapter 2 of the Act on the status and rights of social welfare clients ( laki sosiaalihuollon asiakkaan asemasta ja oikeuksista, lagen om klientens ställning och rättigheter inom socialvården, Act no. 812/2000). According to section 4 of the Act, a client has a right to receive from the service provider social welfare services of good quality and good non-discriminatory treatment. A client must be served in such a manner that his or her human dignity is not violated and his or her convictions and privacy are respected. When providing social welfare services, the client ’ s wishes, opinions, interests and personal needs must be taken into account, as well as his or her mother tongue and cultural background.", "35. Section 5 of the same Act provides that the social welfare authorities must explain the client his or her rights and obligations, the different options available and their effects as well as other factors that may have relevance in his or her matter. This explanation must be given in such a manner that the client sufficiently understands its content and significance. If the social welfare staff does not master the language the client uses, or if the client cannot make him- or herself understood due to a sensory or speech impediment or for some other reason, the staff must take care of interpretation and obtaining of an interpreter.", "36. According to section 7 of the same Act, a service, treatment, rehabilitation or a similar plan must be drawn for the client, unless he or she only needs occasional advice or guidance, or if the drawing of such a plan is otherwise manifestly unnecessary. Unless there are evident obstacles, the plan must be drawn in agreement with the client, the client and his or her legal mentor, or with the client and his or her next-of-kin or close relative. The content of the plan and the parties to the matter are subject to specific regulation.", "37. Section 8, subsection 1, of the Act provides that, when providing social welfare services, the authorities must primarily take into account the wishes and opinions of the client, and also otherwise respect his or her right to self-determination.", "38. According to section 9 of the Act, if an adult client cannot, due to an illness, diminished mental capacity or for other similar reason, participate or contribute to the planning of services or other measures or in their realisation, or to understand the nature of proposed alternatives or the consequences of decisions taken, the client ’ s will must be clarified in cooperation with his or her legal mentor, next-of-kin or other close person. If an adult person is, in a matter pertaining to his or her person or property, in an apparent need of mentoring, relevant authorities must be contacted in order to have a mentor appointed to the client.", "III. RELEVANT INTERNATIONAL MATERIALS", "A. United Nations", "1. United Nations Convention on the Rights of Persons with disabilities", "39. In December 2006 the United Nations Convention on the Rights of Persons with Disabilities (hereinafter “the UNCRPD”) was adopted. It entered into force internationally in May 2008. By the end of September 2016, 44 out of the 47 Council of Europe member States have ratified the Convention. It has also been ratified by the European Union. Finland ratified the Convention in 2016 and it entered into force on 10 June 2016 (the ratification was based on Government Bill HE 284/2014 vp., from which it transpires that it was considered that there was no need or cause to amend the current relevant Finnish legislation).", "40. Article 12 of the Convention is entitled “Equal recognition before the law” and provides the following:", "“1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.", "2. States Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.", "3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.", "4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person ’ s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person ’ s rights and interests.", "5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.”", "41. Article 16 of the Convention is entitled “Freedom from exploitation, violence and abuse” and provides the following:", "1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects.", "2. States Parties shall also take all appropriate measures to prevent all forms of exploitation, violence and abuse by ensuring, inter alia, appropriate forms of gender- and age-sensitive assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognise and report instances of exploitation, violence and abuse. States Parties shall ensure that protection services are age-, gender- and disability-sensitive.", "3. In order to prevent the occurrence of all forms of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities.", "4. States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services. Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person and takes into account gender- and age-specific needs.", "5. States Parties shall put in place effective legislation and policies, including women- and child-focused legislation and policies, to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.”", "2. UN Committee on the Rights of Persons with Disabilities", "42. In 2014 the United Nations Committee on the Rights of Persons with Disabilities adopted its General Comment No. 1 concerning Article 12 of the UNCRPD, i.e. equal recognition before the law.", "43. The Committee considers that States parties must “review the laws allowing for guardianship and trusteeship, and take action to develop laws and policies to replace regimes of substitute decision-making by supported decision-making, which respects the person ’ s autonomy, will and preferences” (§ 26).", "44. In this context, the Committee defines substitute decision-making regimes as systems where (i) legal capacity is removed from a person, even if this is in respect of a single decision; (ii) a substitute decision-maker can be appointed by someone other than the person concerned, and this can be done against his or her will; and (iii) any decision made by a substitute decision-maker is based on what is believed to be in the objective “best interests” of the person concerned, as opposed to being based on the person ’ s own will and preferences (§ 27).", "45. The Committee considers that the States parties ’ obligation to replace substitute decision-making regimes by supported decision-making requires both the abolition of substitute decision-making regimes and the development of supported decision-making alternatives. The development of supported decision-making systems in parallel with the maintenance of substitute decision-making regimes is not sufficient to comply with Article 12 of the Convention (§ 28).", "B. Council of Europe", "46. On 23 February 1999 the Committee of Ministers of the Council of Europe adopted “Principles concerning the legal protection of incapable adults”, Recommendation No. R (99) 4. The relevant provisions of these Principles read as follows:", "Principle 2 – Flexibility in legal response", "“1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal responses to be made to different degrees of incapacity and various situations.", "...", "4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.”", "Principle 3 – Maximum reservation of capacity", "“1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.", "2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so. ...”", "Principle 6 – Proportionality", "“1. Where a measure of protection is necessary it should be proportionate to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned.", "2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention. ...”", "Principle 13 – Right to be heard in person", "“The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.”", "Principle 14 – Duration review and appeal", "“1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews.", "...", "3. There should be adequate rights of appeal.”", "47. On 2 February 2005 the Committee of Ministers adopted a Resolution on safeguarding adults and children with disabilities against abuse, ResAP(2005)1, the relevant parts of which read as follows:", "“I. Definition of abuse", "1. In this Resolution abuse is defined as any act, or failure to act, which results in a breach of a vulnerable person ’ s human rights, civil liberties, physical and mental integrity, dignity or general well-being, whether intended or through negligence, including sexual relationships or financial transactions to which the person does not or cannot validly consent, or which are deliberately exploitative.", "...", "3. These abuses require a proportional response – one which does not cut across legitimate choices made by individuals with disabilities but one which recognises vulnerability and exploitation. The term ‘ abuse ’ therefore refers to matters across a wide spectrum, which includes criminal acts, breaches of professional ethics, practices falling outside agreed guidelines or seriously inadequate care. As a consequence, measures to prevent and respond to abuse involve a broad range of authorities and actors, including the police, the criminal justice system, the government bodies regulating service provision and professions, advocacy organisations, user networks and patient councils, as well as service providers and planners.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "49. The applicant complained under Article 8 of the Convention that, following his decision to move to the North of Finland in order to live with his former foster parents, the powers of his mentor had been enlarged to encompass matters pertaining to his person. His wishes had not been respected and it had been impossible to have his mentor replaced in matters concerning his place of residence and his education, even though he had lost confidence in her. All these measures violated his right to respect for private and family life.", "50. Article 8 of the Convention reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "51. The Government contested that argument.", "A. Admissibility", "52. The Government raised several preliminary objections in their observations. First of all, they noted that the applicant had lived for one year in Northern Finland but had been back in his home town for more than eight and a half years. He had not raised the idea of moving away from his home town for a long time. There was no guarantee that a change of mentor would have led to a different outcome as far as the applicant ’ s place of residence was concerned since another mentor would also have been obliged to safeguard his best interests. The applicant ’ s allegation was thus purely hypothetical. Therefore the applicant could not, at least any longer, be considered as a victim within the meaning of Article 34 of the Convention. His complaint was thus incompatible ratione materiae with the provisions of the Convention or the Protocols thereto, and should be declared inadmissible under Article 35 §§ 3 (a) and 4 of the Convention.", "53. Secondly, the Government argued that the applicant had failed to substantiate any disadvantage he had allegedly suffered as a result of the alleged violation. Therefore this complaint should be declared inadmissible under Article 35 §§ 3 (b) and 4 of the Convention.", "54. Thirdly, the Government argued that the applicant had failed to exhaust the domestic remedies available to him in respect of the decision to place him back in his home town on 31 July 2007. Nor had he challenged the decisions of 4 November 2008 and 18 June 2009 respectively to appoint a mentor for him. Therefore, this complaint should be declared inadmissible for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention.", "55. In any case, the Government maintained that this complaint had been lodged with the Court more than six months after the alleged violations had taken place in respect of the decisions of 31 July 2007, 4 November 2008 and 18 June 2009. It should therefore be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.", "56. The applicant maintained that he was still a victim. He had been forced to remain in his home town for the past nine years against his own will. This situation could not be justified by reference to the fact that it had continued for several years. He had repeatedly told his lawyer that he wanted to move and live with his former foster mother since she was like a mother to him. It was true that another mentor might have also refused the applicant permission to move but that was unlikely. The applicant was still a victim as he still had the same mentor.", "57. The applicant claimed that it was also evident that he had suffered a significant disadvantage. Nothing could bring back the years of lost shared life with his former foster mother. He should be allowed to live wherever he wanted; this was a matter of basic human rights. There were always welfare services available and persons to look after him wherever he lived.", "58. The applicant claimed that it had been impossible for him to exhaust the domestic remedies concerning the decisions referred to in the Government ’ s preliminary objection since he had been without any legal assistance during the years 2007 to 2009. He could not have exhausted those remedies by himself. However, concerning the impugned proceedings, his complaint had been lodged with the Court within the six-month time-limit and was thus admissible.", "59. The Court notes that the parties disagree as to whether the applicant can still be regarded as a victim. Although the applicant has lived for more than nine years back in his home town, he has continued to express his wish to live with his former foster mother. Since neither the applicant ’ s mentor nor his position has changed, he must still be regarded as a victim within the meaning of Article 34 of the Convention. Nor does the Court consider that the applicant has, taking into account the subject matter and the circumstances of his complaint, failed to substantiate any significant disadvantage in connection with the present case.", "60. Furthermore, the Government argued that the applicant had failed to exhaust the domestic remedies available to him in respect of the decisions of 31 July 2007, 4 November 2008 and 18 June 2009 respectively. However, none of these decisions is the subject of the present application, which only concerns the proceedings initiated by the applicant on 8 April 2011 requesting the District Court to discharge the mentor appointed to him from her duties as far as his place of residence and education were concerned. For the same reason, the Government ’ s objection concerning the six-month time-limit is not relevant since it does not concern the impugned proceedings. The Court notes that the Government have not even argued that the applicant ’ s complaint relating to the impugned proceedings was lodged with the Court too late.", "61. Accordingly, the Court rejects the Government ’ s preliminary objections and notes that the applicant ’ s complaint under Article 8 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "62. The applicant pointed out that he had not denied his need for a mentor as he understood that a having one would protect him from serious harm. That did not mean, however, that any authority should be entitled to prevent him from moving to another municipality, because such a move would not bring him into danger. Under the travaux préparatoires to the Guardianship Services Act, primacy was to be given to the ward ’ s interests and to safeguarding his or her opportunities to participate in decision-making.", "63. The case concerned the question of the applicant ’ s right to respect for his private and family life and there had been a clear interference with these rights in the present case. This interference had not been necessary in a democratic society since it had been contrary to the ideas of equality and democracy. There had thus been a violation of Article 8 of the Convention.", "(b) The Government", "64. The Government noted that the applicant had not denied his need for a mentor. It was inherent in the nature of the powers given to the mentor that he was not bound by the expressions of will of the ward but had to make all decisions in the interests of the ward. Otherwise such an appointment would be pointless. The partial dismissal of the applicant ’ s mentor would not be decisive for his right to respect for private life or family life. Therefore, no real interference with the applicant ’ s Article 8 rights had taken place.", "65. Were the Court to have a different opinion, then any alleged interference would in any case have a basis in Finnish law, in particular under sections 8, 29, 37, 42 and 43 of the Guardianship Services Act, and pursue the legitimate aims of protecting the health of the applicant, as well as the rights and freedoms of others. The alleged interference was also necessary in a democratic society, taking into account the wide margin of appreciation accorded to the States. There was thus no violation of Article 8 of the Convention.", "(c) The third party submissions", "66. The Mental Disability Advocacy Centre noted that States were required to ensure that the will and preferences of persons with disabilities were respected at all times and could not be overridden or ignored by paternalistic “best interests ” decision-making. The will and preferences expressed by persons with disabilities in respect of their family relationships and their right to choose their place of residence had to be respected and protected as these issues were an inherent part of a person ’ s autonomy, independence, dignity and self-development and central to a person ’ s independent living in a wider community. In order to ensure that persons with disabilities were both protected from violations and that they had the ability to obtain effective remedies when violations occurred, States had a positive obligation to apply stringent and effective safeguards in order to ensure that their rights to exercise legal capacity were “practical and effective” rather than “theoretical and illusory”.", "67. The starting point, based on the current international standards, was that the will and preferences of a person with disabilities should take precedence over other considerations when it came to decisions affecting that person. This was clear from the text of the United Nations Convention on the Rights of Persons with Disabilities. Even in jurisdictions with a former reliance on the “ best interests ” approach, there was an emerging trend towards placing more emphasis on the will and preferences of the person. There was a clear move from a “ best-interests ” model to a “ supported decision-making ” approach.", "68. The Centre noted that the Court had held on a number of occasions that guardianship systems constituted a very serious interference with a person ’ s Article 8 rights. Article 8 § 2 of the Convention needed to be interpreted in a manner consistent with international standards, taking into account the international recognition of the importance of autonomy and supported decision-making for individuals with disabilities. Rights guaranteed in Article 2 of Protocol No. 4 to the Convention were closely intertwined with those of Article 8. Circumstances in which an interference would be justified were limited and had to be restrictively construed. Persons with disabilities needed to be able to choose where and with whom to live, and had to be given the opportunity to live independently in the community on the basis of their own choice and, on an equal basis with others.", "2. The Court ’ s assessment", "(a) Preliminary remarks", "69. The Court observes that the main issue in the present case concerns the refusal of the domestic authorities to allow a partial change in the applicant ’ s mentor arrangements, requested with a view to permitting the applicant to decide for himself where and with whom to live. The Court must consider this matter in the light of the general principles governing interferences by State authorities in the private and family life of individuals guaranteed under Article 8 of the Convention, taking into account the principles governing the State ’ s positive obligations, especially those relating to the protection of particularly vulnerable persons. The Court notes that the applicant has not lodged a complaint under Article 14 of the Convention. However, due to the nature and scope of the applicant ’ s complaint under Article 8, lodged by an intellectually disabled young man, the Court considers that within the particular context of its examination regard must be had to the requirement of non-discrimination, bearing in mind that discriminatory treatment can consist of treating differently persons in relevantly comparable situations without an objective and reasonable justification, or of failing to make, without objective and reasonable justification, differentiations between persons whose situations are not relevantly comparable (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000 ‑ IV).", "( b ) Recapitulation of general principles", "70. The Court reiterates that the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities. Any interference in the rights protected under this Article must, in order to be permissible, satisfy the conditions set out in paragraph 2 of Article 8 in terms of lawfulness and necessity, including the requirements of legitimate aim and proportionality.", "71. However, Article 8 does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there are positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, inter alia, Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013; and Airey v. Ireland, 9 October 1979, § 32, Series A no. 32 ). The principles applicable to assessing a State ’ s positive and negative obligations under the Convention are similar. Regard must be had to the fair balance that has to be struck between the competing interests, the aims in the second paragraph of Article 8 being of a certain relevance (see Hämäläinen v. Finland [GC], no. 37359/09, § 65, ECHR 2014; and Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 165, ECHR 2016 ). The positive obligations may also require measures designed to provide special protection to persons who are in a particularly vulnerable position (see, for example, Paposhvili v. Belgium [GC], no. 41738/10, § 221, ECHR 2016).", "72. The applicant ’ s complaint concerns a situation where, in the context of the freedom of choice regarding his place of residence, the applicant was put in a position different from others as, due to his intellectual disability, his right of self-determination was restricted through the powers conferred on his mentor. As regards this aspect of the case, the Court recalls that discrimination means treating differently, without an objective and reasonable justification, persons in analogous, or relevantly similar, situations (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007-IV; and Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008).", "73. The Court further recalls its findings to the effect that where a restriction on fundamental rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, then the State ’ s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question (see Kiyutin v. Russia, no. 2700/10, § 63, ECHR 2011 ). The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice could entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs (see Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010 ). In the past, the Court has identified a number of such vulnerable groups that suffered different treatment on account of their sex (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 78, Series A no. 94; and Burghartz v. Switzerland, 22 February 1994, § 27, Series A no. 280 ‑ B ), sexual orientation (see Schalk and Kopf v. Austria, no. 30141/04, § 97, ECHR 2010; and Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 90, ECHR 1999 ‑ VI), race or ethnicity (see D.H. and Others, cited above, § 182; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 56, ECHR 2005 ‑ XII), mental faculties (see Alajos Kiss, cited above, § 42; and, mutatis mutandis, Shtukaturov v. Russia, no. 44009/05, § 95, ECHR 2008), or disability (see Glor v. Switzerland, no. 13444/04, § 84, ECHR 2009 ).", "74. Furthermore, the Court reiterates its consistent practice according to which the Court takes into account relevant international instruments and reports in order to interpret the guarantees of the Convention and to establish whether there is a common standard in the field concerned. It is for the Court to decide which international instruments and reports it considers relevant and how much weight to attribute to them (see Tănase v. Moldova [GC], no. 7/08, § 176, ECHR 2010; and Demir and Baykara v. Turkey [GC], no. 34503/97, § § 85-86, ECHR 2008). In the present case, the Court considers relevant the United Nations Convention on the Rights of Persons with disabilities (see paragraphs 3 9 - 4 1 above), having also regard to the interpretation given by the UN Committee (see paragraphs 42-45 above), as well as the related recommendations, resolutions and strategy statements adopted by the Council of Europe bodies (see paragraphs 4 6 - 48 above).", "(c) Whether there was an interference", "75. The Court notes that the parties disagree on whether there was an interference with the applicant ’ s rights under Article 8 of the Convention.", "76. The Court observes that the present case concerns primarily the private life aspect of Article 8 rather than the family life aspect. Article 8 “secure[s] to the individual a sphere within which he can freely pursue the development and fulfilment of his personality” (see Brüggemann and Scheuten v. Germany, no. 6959/75, Commission ’ s report of 12 July 1977, Decisions and Reports 10, p. 115, § 55; and Shtukaturov, cited above, § 83 ). Article 8 concerns rights of central importance to the individual ’ s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community (see Connors v. the United Kingdom, no. 66746/01, § 82, 27 May 2004; Pretty v. the United Kingdom, no. 2346/02, ECHR 2002 ‑ III; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002 ‑ VI; and, mutatis mutandis, Gillow v. the United Kingdom, 24 November 1986, § 55, Series A no. 109 ).", "77. In the present case, a mentor had been appointed to the applicant soon after he had reached the age of 18, i.e. prior to the impugned proceedings (see paragraphs 10 and 13 above), and he has not contested or complained about these decisions, nor does he deny the need for a mentor. The applicant ’ s complaint, in essence, is directed at the fact that by their decisions in the impugned proceedings, the domestic courts refused to change the mentor arrangements as a result of which the applicant was restrained from deciding for himself where and with whom to live. The Court therefore considers that there has been an interference with the applicant ’ s right to respect for his private life under Article 8 of the Convention.", "(d) Whether the interference was in accordance with the law and pursued a legitimate aim", "78. To comply with Article 8 § 2 of the Convention, the interference in issue must have been imposed “in accordance with the law” and pursue a legitimate aim enumerated in Article 8 § 2 of the Convention.", "79. The Court notes that, according to the Government, the interference had a basis in Finnish law, in particular in sections 8, 29, 37, 42 and 43 of the Guardianship Services Act, and that it pursued the legitimate aims of protecting the health of the applicant, as well as the rights and freedoms of others. The applicant did not dispute this.", "80. The Court agrees with the parties that the interference in question had a legal basis in the provisions of the Guardianship Services Act and considers that the quality of that law is not at issue. Moreover, the legitimate aim of this Act, as expressed in its section 1, is to protect the rights and interests of persons who cannot themselves take care of their financial or non-financial affairs owing to incapacity, illness, absence or another reason. The interference was thus clearly justified by the legitimate aim of protecting the health, interpreted in the broader context of well-being, of the applicant.", "(e) Whether the interference was necessary in a democratic society", "81. Under Article 8, an interference will be considered “necessary in a democratic society” in respect of a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation of whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see, among other authorities, Smith and Grady, cited above, § 88 ).", "82. As regards the legal position underlying the applicant ’ s case, namely that there was a measure in place under which the mentor was required not to abide by the applicant ’ s wishes and instead to give precedence to his best interests, if and where the applicant was deemed unable to understand the significance of a specific matter, the Court recalls that in order to determine the proportionality of a general measure, the Court must primarily assess the legislative choices underlying it. In accordance with the principle of subsidiarity, the quality of the parliamentary and judicial review of the necessity of the measure is of particular importance in this respect, including to the operation of the relevant margin of appreciation (see, mutatis mutandis, Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts)).", "83. A margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions (see Maurice v. France [GC], no. 11810/03, § 117, ECHR 2005 ‑ IX). This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions. The margin will tend to be narrower where the right at stake is crucial to the individual ’ s effective enjoyment of intimate or key rights (see, for example, Parrillo v. Italy [GC], no. 46470/11, § 169, ECHR 2015; and Dubská and Krejzová, cited above, § 178 ). As noted in paragraph 73 above, the margin is also reduced where a particularly vulnerable group is subjected to differential treatment on grounds that are not specifically linked to relevant individual circumstances.", "84. The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Connors, cited above, § 83; Buckley, cited above, § 76; and Chapman v. the United Kingdom [GC], no. 27238/95, § 92, ECHR 2001 ‑ I ).", "85. Turning to the present case, the Court notes that under Finnish law, the appointment of a mentor does not entail a deprivation or restriction of the legal capacity of the person for whom the mentor is designated (see paragraph 2 9 above). The powers of the mentor to represent the ward cover the latter ’ s property and financial affairs to the extent set out in the appointing court ’ s order, but these powers do not exclude the ward ’ s capacity to act for him - or herself. If, like in the present case, the court has specifically ordered that the mentor ’ s function shall also cover matters pertaining to the ward ’ s person, the mentor is competent to represent the ward in such a matter only where the latter is unable to understand its significance (see paragraph 30 above). In a context such as the present one, the interference with the applicant ’ s freedom to choose where and with whom to live that resulted from the appointment and retention of a mentor for him was therefore solely contingent on the determination that the applicant was unable to understand the significance of that particular issue. This determination in turn depended on the assessment of the applicant ’ s intellectual capacity in conjunction with and in relation to all the aspects of that specific issue. The Court also notes that Finland, having recently ratified the UNCRPD, has done so while expressly considering that there was no need or cause to amend the current legislation in these respects (see Government Bill HE 284/2014 vp., p. 45).", "86. The Court further observes that, as regards the impugned proceedings, the domestic courts, having considered expert testimony and having heard the applicant in person as well as several witnesses, concluded that the applicant was clearly unable to understand the significance of the underlying issue of the proceedings, namely the plan move to a remote place in order to live with his former foster parents. In reaching this conclusion, the courts took into account the evidence relating to the applicant ’ s intellectual capacity as well as the evidence relating to the applicant ’ s present and prospective circumstances in the case of a move. In this context, the domestic courts also expressed some doubts as to whether the plan actually represented the applicant ’ s own genuine will.", "87. The Court recalls, as it has held in various contexts, that where domestic proceedings have taken place, it is not the Court ’ s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see, among others, Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 179-80, 24 March 2011). Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts ( ibid ).", "88. In the present case, the Court sees no reason to call into question the factual findings of the domestic courts. In this regard, the Court takes note, in particular, of the fact that according to the expert evidence, the applicant ’ s decision-making skills had been assessed as corresponding to those of a child between six and nine years of age. The Court also observes that it is apparent from the factual circumstances and the findings of the domestic courts that, apart from the fact that the former foster parents were well known and close to the applicant, the plan to move to a remote and isolated place in the North of Finland would have entailed a radical change in the applicant ’ s living conditions (see paragraph 17 above).", "89. In the light of the above mentioned findings, the Court is satisfied that the impugned decision was taken in the context of a mentor arrangement that had been based on, and tailored to, the specific individual circumstances of the applicant, and that the impugned decision was reached on the basis of a concrete and careful consideration of all the relevant aspects of the particular situation. In essence, the decision was not based on a qualification of the applicant as a person with a disability. Instead, the decision was based on the finding that, in this particular case, the disability was of a kind that, in terms of its effects on the applicant ’ s cognitive skills, rendered the applicant unable to adequately understand the significance and the implications of the specific decision he wished to take, and that therefore, the applicant ’ s well-being and interests required that the mentor arrangement be maintained.", "90. The Court is mindful of the need for the domestic authorities to reach, in each particular case, a balance between the respect for the dignity and self-determination of the individual and the need to protect the individual and safeguard his or her interests, especially under circumstances where his or her individual qualities or situation place the person in a particularly vulnerable position. The Court considers that a proper balance was struck in the present case: there were effective safeguards in the domestic proceedings to prevent abuse, as required by the standards of international human rights law, ensuring that the applicant ’ s rights, will and preferences were taken into account. The applicant was involved at all stages of the proceedings: he was heard in person and he could put forward his wishes. The interference was proportional and tailored to the applicant ’ s circumstances, and was subject to review by competent, independent and impartial domestic courts. The measure taken was also consonant with the legitimate aim of protecting the applicant ’ s health, in a broader sense of his well-being.", "91. For the above mentioned reasons, the Court considers that, in the light of the findings of the domestic courts in this particular case, the impugned decision was based on relevant and sufficient reasons and that the refusal to make changes in the mentor arrangements concerning the applicant was not disproportionate to the legitimate aim pursued.", "92. Consequently, there has been no violation of Article 8 in the present case.", "II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 4 TO THE CONVENTION", "93. Article 2 of Protocol No. 4 to the Convention reads as follows:", "“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.", "2. Everyone shall be free to leave any country, including his own.", "3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.", "4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”", "94. In support of his complaint, the applicant also invoked the provisions of Article 2 of Protocol No. 4 to the Convention. In view of the content of that Article as cited above, in particular the fact that paragraph 3 of the Article is closely aligned with paragraph 2 of Article 8, and taking into account the conclusions reached under Article 8 of the Convention above, the Court does not consider that an examination of the applicant ’ s complaint can lead to different findings when reviewed under Article 2 of Protocol No. 4. There has therefore been no violation of that Article, either." ]

[ "2. The applicant was born in 1959 and lives in Bucharest. He was represented by Mr C. Cojocariu, a lawyer practising in Orpington (United Kingdom).", "3. The Government were represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. From 30 June 2006 until 29 May 2018 (see paragraph 21 below) the applicant was resident in the Săpoca Psychiatric Hospital (“the hospital”), situated within the administrative area of the Unguriu village local authorities, in Buzău county. The background to the case is described in the case of N. v. Romania (no. 59152/08, 28 November 2017) which was brought by the same applicant and concerned the lawfulness of his placement in psychiatric hospitals (Article 5 §§ 1 (e) and 4 of the Convention).", "The Court’s judgment in the case of N. v. Romania, no. 59152/08", "6. On 28 November 2017 the Court gave judgment in the case of N. v. Romania (cited above). It found that, at least since 2007, the applicant’s detention had been devoid of any basis in law and had not been warranted under Article 5 § 1 (e) of the Convention (ibid., § 161). Moreover, his continued detention after the adoption of the decision of the Buzău County Court of 29 August 2016 upholding the maintenance of the detention measure, had been arbitrary (ibid., §§ 62 and 167). The Court further considered that the intervals at which the courts had decided on the necessity of maintaining the applicant’s detention had not met the “speediness” requirement set out in Article 5 § 4 of the Convention (ibid., § 195) and that the applicant had not benefited from adequate legal assistance in the proceedings concerning the periodic judicial review of the necessity of his detention (ibid., § 198).", "7. It thus found a violation of Articles 5 §§ 1 (e) and 4 of the Convention (ibid., §§ 168 and 199).", "8. In addition, the Court indicated several individual and general measures with a view to helping the respondent State fulfil its obligations under Article 46 of the Convention (ibid., §§ 216-19).", "9. That judgment became final on 28 February 2018 and the Committee of Ministers of the Council of Europe (“the Committee of Ministers”) started the supervision of its execution. At its meeting no. 1331(CM-DH) which took place from 4 to 6 December 2018, the Committee of Ministers adopted the following decision:", "“The Deputies", "1. recalling that this case concerns the applicant’s unlawful prolonged psychiatric confinement as a security measure and the authorities’ failure to secure his immediate release in conditions meeting his needs, as well as shortcomings in the judicial review of the applicant’s continued deprivation of liberty;", "As regards urgent individual measures", "2. noted that in May 2018 the applicant was placed in a recovery centre, as a transitional step until suitable community-based accommodation could be found, and that the authorities have since found him accommodation which he will be able to move to once the necessary staffing arrangements have been made; considered that the applicant’s situation no longer calls for the taking of urgent individual measures;", "3. encouraged the authorities to continue closely to monitor the situation to ensure that the applicant can move into the sheltered housing procured for his accommodation as soon as qualified staff have been assigned;", "As regards individual measures", "4. deeply regretted that the deficiencies in the current system of legal protection for adults left the domestic courts with no option but to place the applicant under guardianship and thus deprive him of the exercise of his civil and political rights;", "5. recalled in this respect that the Committee is supervising the adoption by Romania of legislation establishing a new system of independent and effective legal protection, tailored to the specific needs of adults with mental disabilities, in the case of Centre for Legal Resources on behalf of Valentin Câmpeanu [ v. Romania [GC], no. 47848/08, ECHR 2014];", "6. pending the adoption of this legislation or until such time as the domestic courts terminate the applicant’s guardianship, invited the authorities to take steps to ensure that the appointed guardian involves the applicant and takes his preferences into account in the decisions concerning him, if consistent with his best interests; also invited them to inform the Committee of the legal safeguards or any arrangements made or envisaged to ensure that the sum awarded as just satisfaction is used in the applicant’s best interests;", "7. invited the authorities to inform the Committee of relevant developments in the applicant’s situation and the concrete general measures envisaged in response to the judgment by the end of February 2019 at the latest.”", "Proceedings for legal incapacitation", "10. On 3 July 2014 the Government Agent before the Court asked the local authorities of Unguriu village to start the procedure for appointing a representative to represent the applicant in the proceedings before the Court in the case of N. v. Romania (cited above).", "11. On 27 June 2014 the hospital lodged an action with the Pătârlagele District Court seeking to divest the applicant of his legal capacity and to appoint a legal guardian for him. The hospital requested that a temporary guardian ( curator special ) be appointed to represent the applicant’s interests in those proceedings as well as in the proceedings before the Court. In the application, the hospital explained that the applicant suffered from paranoid schizophrenia and that the illness did not allow him to properly exercise his rights and comply with his obligations. On 7 July 2014, with the applicant’s consent, the court appointed a temporary guardian, a lawyer from the Pătârlagele legal aid service of the Buzău Bar Association.", "12. On 29 October 2015, at the court’s request, the applicant was examined by a psychiatric commission of the Buzău County Forensic Medical Service. In its report of 2 December 2015 that service confirmed the diagnosis of paranoid schizophrenia and declared the applicant “psychologically incapable of managing himself and of taking decisions in an informed and predictable manner concerning his civil obligations and rights and his own interests”. The report was added to the file.", "13. The applicant was present at the hearings before the District Court, and was accompanied by a nurse from the hospital and by his guardian ad litem. Before the court he asked that the action concerning him lodged by the hospital be dismissed. He also submitted a series of written documents.", "14. On 30 August 2016, in the light of the diagnosis and of the findings of the psychiatric report, and taking into account the applicant’s written submissions which “confirmed his mental situation”, the Pătârlagele District Court divested the applicant of his legal capacity and placed him under legal guardianship. Having postponed the hearing on several occasions in order to allow social services to find a family member or acquaintance willing to take on the role of guardian, and having failed to identify such a suitable person, the court, by the same decision, designated as his legal guardian the social welfare department of Unguriu village (“the Unguriu social welfare authority”) owing to its proximity to the hospital. Ms T.E.C., an employee of the Unguriu social welfare authority, was appointed as the applicant’s legal guardian.", "15. The applicant appealed against that decision. He was assisted by the same lawyer who represented him in the present proceedings (see paragraph 2 above). He argued that the measure ordered by the court was not justified and had been taken in disregard of his procedural rights. He also urged the court to take into account the precarious situation of people with mental disabilities in the respondent State, who were marginalised, segregated and subjected to institutionalised abuse. He relied on Article 164 § 1 of the Civil Code (“the CC”, see paragraph 26 below), on the Articles of the Constitution concerning equality, the right to private and family life and protection of people with disabilities, and on Articles 8 and 14 of the Convention. He also requested that the court refer the case to the Court of Justice of the European Union (“the CJEU”) for a preliminary ruling, arguing that the decision contravened the requirements of the European Union (“EU”) legislation concerning the right to vote and the right to work of people with disabilities. He also raised an objection to the constitutionality of Article 164 § 1 of the CC concerning the guardianship procedure, which in his view discriminated against people with mental disabilities and deprived them of the exercise of their rights. On 5 December 2016 the County Court appointed a temporary guardian from the list of lawyers of the Buzău Bar Association.", "16. On 9 January 2017 the County Court refused to refer the preliminary question to the CJEU, as it considered that the issues raised by the applicant in his request did not concern the interpretation or validity of EU law in the proceedings before it.", "17. On 6 February 2017 the Buzău County Court referred the objection to the constitutionality of Article 164 § 1 of the CC to the Constitutional Court, which rendered its decision on 16 July 2020 (see paragraph 31 below). At the same time, the County Court decided not to await the outcome of the constitutional proceedings and thus continued its examination of the appeal.", "18. On 10 March 2017 the Mina Minovici Institute for Forensic Medicine confirmed the report of 2 December 2015 (see paragraph 12 above). In June 2017 a commission from that institute examined the applicant and on 19 December 2017 issued a new psychiatric report reaching the same conclusion as the Buzău County commission. It recommended that the applicant, who was “mentally incapable of caring for himself, of deciding on his best interests, and of acting in an informed manner in compliance with his civil rights and obligations” be divested of his legal capacity. The report also stated that even with appropriate medical treatment the applicant was unable to manage his personal and proprietary interests.", "19. On 27 February 2018 the Buzău County Court upheld the decision rendered by the District Court on 30 August 2016 (see paragraph 14 above). It relied on the definition of insanity by Law no. 71/2011 (see paragraph 27 below) and also pointed out that the measure in question was not aimed at punishing the individuals concerned, but rather at protecting them and also third parties. The court noted that the legislation did not allow for a more nuanced response in the case of people with mental problems. The court further stated that in the absence of any suitable family member or acquaintance, appointing the local authority as guardian was the only sensible and legal solution.", "20. The applicant, through counsel, appealed on points of law, but in a final decision of 25 September 2018 the Ploieşti Court of Appeal dismissed the appeal on the grounds that the law did not provide for that means of appeal.", "Proceedings with a view to replacing the legal guardian", "21. On 29 May 2018 the applicant was transferred from the hospital to the U. Centre for Neuropsychiatric Recuperation and Rehabilitation, a closed care home situated in Bucharest (“the U. Centre”).", "22. On 4 June 2019 the Bucharest Directorate General for Social Welfare and Child Protection (“the Bucharest social welfare authority”) lodged an application with the Bucharest District Court seeking to replace Ms T.E.C. in her role as the applicant’s legal guardian (see paragraph 14 above) with a new legal guardian, Mr B.V.G., a psychologist who worked in the U. Centre and who, at that time, was also the applicant’s therapist and the person in charge of his case (case manager). It argued that this change would reflect the residence arrangements concerning the applicant and would optimise the decision-making process in his regard. Both Ms T.E.C. and Mr B.V.G. gave their consent to the proposed change. The applicant was not party to these proceedings, which took place between the Bucharest social welfare authority, Ms T.E.C. and Mr B.V.G.; the Unguriu social welfare authority was also notified of the proceedings.", "23. In an interlocutory decision of 22 August 2019 the Bucharest District Court, relying on Article 173 of the CC (see paragraph 26 below), allowed the application and designated Mr B.V.G. as the applicant’s new legal guardian, on the grounds that the applicant had been transferred to a place which was too far away from his present legal guardian and that the two guardians and the Unguriu social welfare authority had given their consent.", "24. The Government added to their submissions in the present case a handwritten statement dated 11 February 2019 in which the applicant agreed that Ms T.E.C. be replaced as his legal guardian by Mr B.V.G. That statement was not mentioned in the application of 4 June 2019 (see paragraph 22 above) or in the interlocutory decision of 22 August 2019 (see paragraph 23 above).", "25. The applicant alleged that he had learned of that decision on 17 October 2019, in the proceedings before the Constitutional Court, when it had been added to the file by the representative of the U. Centre." ]

[ "RELEVANT LEGAL FRAMEWORK", "RELEVANT DOMESTIC LAW AND PRACTICEThe Civil Code (“the CC”)", "The Civil Code (“the CC”)", "The Civil Code (“the CC”)", "26. The relevant provisions of the CC concerning legal incapacitation read as follow:", "Article 164 § 1 Conditions", "“Persons who do not have the necessary capacity to care for their interests, because of insanity or severe mental defect, shall be placed under guardianship.”", "Article 167 Appointment of special guardian", "“In case of need and pending a decision on the request for legal incapacitation, the guardianship court may appoint a special guardian to care for and represent the person whose incapacitation has been requested and to manage his or her possessions.”", "Article 170 Appointment of legal guardian", "“By the decision declaring a person legally incapable, the guardianship court immediately appoints a guardian for the protection of the person placed under legal guardianship. The provisions of Articles 114-120 [concerning the appointment of a legal guardian for a child] shall apply accordingly.”", "Article 171 Application of guardianship rules", "“The rules concerning legal guardianship of children below the age of 14 shall apply to the guardianship of a person divested of legal capacity, unless otherwise prescribed by law.”", "Article 173 Change of legal guardian", "“(1) The legal guardian of a person divested of legal capacity may seek to be replaced three years after his or her appointment.", "(2) The legal guardian may seek to be replaced before the time-limit of three years has elapsed, where there are compelling reasons.”", "27. In addition, Law no. 71/2011 on the application of the CC defines insanity as follows:", "Article 211", "“For the purposes of the Civil Code and of the civil laws in force, the expressions insanity and severe mental defect are to be understood as a mental illness or a mental disability which results in the inability of a person to act critically and predictably with regard to the social and legal consequences that may arise from the exercise of civil rights and obligations.”", "The Code of Civil Procedure (“the CCP”)", "28. Articles 936-43 of the CCP regulate the procedure whereby a person is divested of legal capacity. This procedure takes place in the presence of the person concerned, from whom the court hears evidence in order to assess his or her mental abilities, having regard also to the evidence in the file.", "Mental Health Act", "29. The Mental Health Act (Law no. 487 of 11 July 2002 on mental health and the protection of people with mental disorders) provides for the rights of persons with mental disorders. In particular, under Article 41 of that Act, persons with mental disorders have the freedom to exercise their civil, political, economic, social and cultural rights guaranteed by the Universal Declaration of Human Rights and by other international conventions and treaties ratified by Romania. Article 42 states that any person with mental disorders has the right to be recognised as an individual and has the right to private life.", "The Constitutional Court", "30. In its decision no. 795/2020 (published in the Official Bulletin on 28 December 2020 and applicable from that date) the Constitutional Court ruled that legal guardians must be accountable for their acts before a court, as it considered that the situation prevailing at that time, whereby their supervision was exercised exclusively by the social welfare authorities, was unconstitutional. In its decision the Constitutional Court also noted that, at that time, the only instance in which a person divested of legal capacity could apply to a court was to seek to have his or her incapacitation measure lifted (Article 177 § 2 of the CC).", "31. Decision no. 601, adopted on 16 July 2020 and applicable since 27 January 2021 when it was published in the Official Bulletin, declared Article 164 § 1 of the CC unconstitutional in so far as it did not allow for an individualised periodic assessment of the situation. The relevant passages of this decision read as follows:", "“30. The [Constitutional Court] notes that the legislation under review establishes a system of substitution under which the rights and obligations of a person divested of legal capacity are exercised by a legal guardian, regardless of the degree of impairment of the person’s discernment, to the detriment of a system of support characterised by a support mechanism to be provided by the State depending on the degree of impairment of discernment.", "...", "46. In conclusion, the [Constitutional Court] notes that the measure consisting in divesting a person of legal capacity, as regulated by Article 164 § 1 of the [CC], is not accompanied by sufficient safeguards to ensure respect for human rights and fundamental freedoms. It does not take into account the fact that there may be different degrees of incapacitation, or the diversity of a person’s interests, it is not limited in time and is not subject to periodic review. Any protective measure must be proportionate to the level of capacity of the person concerned, must be suited to the person’s lifestyle, be applied for the shortest time possible, must be periodically reviewed and must take into account the wishes and preferences of the disabled person. Moreover, when introducing a protective measure, the legislature must take into account the fact that there may be different degrees of incapacitation, and that mental deficiency may vary over time. Lack of mental capacity or discernment can take various forms, for instance, total/partial or reversible/irreversible, and this situation requires that the protective measures be appropriate to the reality; however, this is not taken into account in the legislative measures concerning legal incapacitation. Therefore, the different degrees of disability must be afforded corresponding degrees of protection, and the legislature must identify proportionate solutions. Legal incapacitation must not lead to the loss of the exercise of all civil rights, and must be assessed individually in each case.", "47. Consequently, the [Constitutional Court] notes that in the absence of safeguards accompanying the protective measure of legal incapacitation, there is a breach of the corresponding constitutional provisions read in the light of Article 12 of the Convention on the Rights of Persons with Disabilities.", "48. ... Based on the recommendations made by the Committee on the Rights of Persons with Disabilities ... to the member States, ... the National Authority for the Rights of People with Disabilities may make legislative proposals in this field, and the Parliament or the Government will have a responsibility to enact legislation which complies with the Constitution and the Convention on the Rights of Persons with Disabilities.”", "RELEVANT INTERNATIONAL MATERIALS", "32. The relevant provisions of international law concerning the right of people with disabilities to respect for their rights (notably the right to maximum preservation of their capacity, respect for their privacy on an equal basis with others, and the right to equality and non-discrimination), including the provisions of the United Nations Convention on the Rights of Persons with Disabilities (“the CRPD”), which was ratified by Romania on 31 January 2011, are described in A.N. v. Lithuania (no. 17280/08, §§ 68 ‑ 69, 31 May 2016) as well as in Cînţa v. Romania (no. 3891/19, §§ 27 ‑ 34, 18 February 2020) and in N. v. Romania (no. 59152/08, §§ 101 ‑ 108, 28 November 2017).", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "33. The applicant complained that the measure divesting him of legal capacity had breached his right to respect for his private life protected by Article 8 of the Convention. He also complained, relying on the same Article, about the manner in which the authorities had changed his legal guardian through proceedings in which he was not involved.", "Article 8 of the Convention reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "AdmissibilityNon-exhaustion of domestic remedies", "Non-exhaustion of domestic remedies", "Non-exhaustion of domestic remedies", "(a) The parties’ submissions", "34. The Government argued that the applicant should have appealed against the interlocutory decision of 22 August 2019 (see paragraph 23 above) within the thirty-day time-limit set by law which, in their view, had expired on 24 September 2019. The applicant, who at that time was already being represented by his present counsel, had been aware that the proceedings were ongoing, as on 11 February 2019 he had given his consent to the change of legal guardian (see paragraph 24 above).", "35. The applicant reiterated that he had not been a party to those proceedings and for that reason had not been allowed by law to lodge an appeal against the interlocutory decision. Moreover, the letter in question, signed four months previously, did not prove that he had been aware of the existence of those proceedings.", "(b) The Court’s assessment", "36. In respect of the requirement to exhaust domestic remedies, the Court refers to the well-established principles of its case-law (as reiterated notably in Gherghina v. Romania (dec.) [GC], no. 42219/07, §§ 83 ‑ 89, 9 July 2015, and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).", "37. The Court observes that the gravamen of the applicant’s complaint concerning the change of legal guardian is his ability to participate in the relevant proceedings. Consequently, the answer to the objection raised by the Government is intrinsically linked to the examination of the merits of this complaint. The objection should therefore be joined to the merits (see, mutatis mutandis, A.N. v. Lithuania, no. 17280/08, § 82, 31 May 2016).", "Incompatibility ratione materiae", "(a) The parties’ submissions", "38. The Government averred that the issue of the applicant’s legal incapacitation had already been assessed by the Committee of Ministers as part of the execution of the judgment rendered by the Court in the case of N. v. Romania (no. 59152/08, 28 November 2017 – see paragraph 9 above).", "39. The applicant observed that the Government’s assertions could be considered a plea of inadmissibility. In this vein, he pointed out that the two cases he had brought before the Court concerned separate facts and separate violations of the Convention. Moreover, on the date of submission of his observations in the present case, that is to say, three years after the adoption of the judgment in the case of N. v. Romania (cited above), the applicant’s placement under legal guardianship had not yet been reviewed by the authorities, despite the Committee of Ministers’ exhortations.", "(b) The Court’s assessment", "40. Although not formulated as such, the Court considers that the Government’s submissions on this point may be interpreted as a plea of inadmissibility of the complaint concerning the applicant’s legal incapacitation. The Court will therefore examine it accordingly.", "(i) General principles", "41. The Court reiterates that the measures taken by a respondent State to remedy a violation found by the Court can raise a new issue undecided by the judgment and, as such, may form the subject of a new application that may be dealt with by the Court (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 62, ECHR 2009).", "42. Reference should be made in this context to the criteria established in the case-law concerning Article 35 § 2 (b), according to which an application is to be declared inadmissible if it “is substantially the same as a matter that has already been examined by the Court ... and contains no relevant new information” (ibid., § 63).", "(ii) Application of those principles to the facts of the present case", "43. The Court must thus ascertain whether the two applications brought before it by the applicant relate essentially to the same person, the same facts and the same complaints (see, mutatis mutandis, Harkins v. the United Kingdom (dec.) [GC], no. 71537/14, §§ 41-42, 15 June 2017).", "44. While it is undisputed that both the applications in question were lodged by the same person, the Court considers that the factual situations and the complaints raised are different. The Court reiterates that the first application, in the case of N. v. Romania, cited above, concerned the lawfulness of the applicant’s psychiatric detention (see paragraph 6 above), whereas the present application concerns the applicant’s legal incapacitation and the choice of his legal guardian (see paragraph 33 above).", "45. The Court thus concludes that the complaints raised in the present application are not substantially the same as those examined in N. v. Romania (cited above) for the purpose of Article 35 § 2 (b) of the Convention (see, mutatis mutandis, Sadak v. Turkey, nos. 25142/94 and 27099/95, §§ 32-33, 8 April 2004).", "46. Furthermore, the Court notes that the supervision by the Committee of Ministers, in the context of execution of the judgment rendered by the Court in N. v. Romania, concerns exclusively the complaints under Article 5 of the Convention, as is clear from point no. 1 of the Committee of Ministers’ decision (see paragraph 9 above). The reference to deficiencies in the system of legal protection of persons with mental disabilities, inscribed in points nos. 4 to 6 of that decision, does not change this conclusion, in particular in the absence of a Court finding of a violation in that regard, in respect of the applicant.", "47. It follows that the Government’s objection concerning the compatibility ratione materiae of the application must be dismissed.", "Other reasons for inadmissibility", "48. The Court further notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicant", "49. The applicant argued that he had been automatically placed under legal guardianship as the law had not allowed for an individualised assessment of his situation. Moreover, the measure had been taken based on his mental illness and lack of family support and no alternative solutions had been sought by the authorities.", "50. The applicant also reiterated that the law itself had allowed the proceedings for the change of legal guardian to take place without any input from him. Moreover, the court had not subjected that request to any meaningful scrutiny, including by examining the performance of the outgoing guardian or the status of the incoming guardian, or the latter’s unsuitability for the role owing to his position as the applicant’s therapist and case manager and at the same time as an employee of the centre where the applicant was living. Moreover, the decision had been taken by the court without hearing the applicant or assessing his needs, wishes or preferences.", "(b) The Government", "51. The Government accepted that the applicant’s legal incapacitation constituted interference with his right to respect for his private life. However, they argued that the system had provided sufficient safeguards during the proceedings in question: the applicant had participated fully and had been assisted by counsel; the courts had relied not only on his diagnosis but also on two medical expert examinations and had examined the applicant’s personal circumstances (notably the absence of any family or acquaintance willing to help); and the courts had assessed the possibility of applying less intrusive measures. While accepting that a system which only provided for full capacity or total incapacitation was not Convention compliant, the Government argued that in the present case the issue did not arise, as the measure of legal incapacitation had been necessary and appropriate to the applicant’s personal circumstances. In their view, the Constitutional Court’s decision of 16 July 2020 (see paragraph 31 above) should not be interpreted as excluding the possibility of total legal incapacitation if that measure was necessary in the circumstances of a given case.", "52. Lastly, the Government argued that both the applicant and the two legal guardians had given their express consent to the change of legal guardian and that the domestic court’s role, under Article 173 of the CC (see paragraph 26 above), was limited to taking note of that change and assessing whether it complied with the applicant’s best interests. Moreover, the applicant had allowed that decision to become final by failing to appeal against it (see paragraph 34 above).", "The Court’s assessment", "(a) General principles", "53. The Court has already held that deprivation of legal capacity undeniably constitutes serious interference with the right to respect for a person’s private life protected under Article 8. It reiterates that Article 8 secures to the individual a sphere within which he or she can freely pursue the development and fulfilment of his or her personality (see Shtukaturov v. Russia, no. 44009/05, § 83, ECHR 2008, and A.N. v. Lithuania, cited above, § 111). Any interference with an individual’s right to respect for his private life will constitute a breach of Article 8 unless it was “in accordance with the law”, pursued a legitimate aim or aims under Article 8 § 2 and was “necessary in a democratic society” in the sense that it was proportionate to the aims sought to be achieved (see A.N. v. Lithuania, cited above, § 113).", "54. As a rule, in such a complex matter as determining somebody’s mental capacity, the authorities should enjoy a wide margin of appreciation. This is mostly explained by the fact that the national authorities have the benefit of direct contact with the people concerned and are therefore particularly well placed to determine such issues. The task of the Court is rather to review under the Convention the decisions taken by the national authorities in the exercise of their powers in this regard (ibid., § 116, with further references).", "55. However, the Court reiterates that if a restriction on fundamental rights applies to someone belonging to a particularly vulnerable group in society that has suffered considerable discrimination in the past, such as the mentally disabled, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question. The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice could entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs (see A.N. v. Lithuania, cited above, § 125, and Cînța v. Romania, no. 3891/19, § 41, 18 February 2020, with further references).", "(b) Application of those principles to the facts of the present case", "56. In the light of the above, and in the context of its examination of the present case, the Court does not propose to substitute its own assessment for that of the domestic courts. In this connection the Court reiterates that whilst Article 8 of the Convention contains no explicit procedural requirements, the decision‑making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8. The extent of the State’s margin of appreciation thus depends on the quality of the decision-making process. If the procedure was seriously deficient in some respect, the conclusions of the domestic authorities are more open to criticism (see A.N. v. Lithuania, § 118, and, mutatis mutandis, Cînța, § 42 both cited above).", "57. At the outset, the Court observes that the present complaint is twofold: on the one hand, the applicant challenges the measure consisting in his legal incapacitation, and on the other hand, he objects to the manner in which the change of legal guardian took place. The Court will examine these two aspects in turn.", "(i) Legal incapacitation", "58. The Court observes that it is undisputed between the parties that the decision of 30 August 2016 (see paragraph 14 above), upheld by the final decision of 27 February 2018 (see paragraph 19 above), amounted to interference with the applicant’s private life (see paragraph 51 above).", "59. The incapacitation proceedings concerning the applicant had a legal basis, namely Article 164 § 1 of the CC (see paragraph 26 above) and Articles 936-43 of the CCP (see paragraph 28 above). The Court also has no reason to doubt that the measure was taken in the applicant’s interests, to protect his health as well as the rights and freedoms of others.", "60. It thus remains to be examined whether the measure of full legal incapacitation was necessary and, in particular, whether the law providing such incapacitation as a general measure was compatible with the Convention requirements (see, mutatis mutandis and in the context of Article 10 of the Convention, Bayev and Others v. Russia, nos. 67667/09 and 2 others, §§ 63 ‑ 64, 20 June 2017).", "61. In this connection the Court notes firstly that the consequences of that interference were very serious. As a result of his incapacitation, the applicant became fully dependent on his legal guardians, to whom the courts transferred the exercise of his rights (see paragraph 30 of Decision no. 601/2020 of the Constitutional Court, cited in paragraph 31 above).", "62. Admittedly, in reaching their decision, the courts referred to medical expert reports prepared for the purposes of the proceedings in question after direct examination of the applicant (see paragraphs 12 and 18 above). Moreover, the applicant participated in the proceedings and benefited from the assistance of counsel (see paragraphs 13 and 15 above). He was also heard by the District Court (see paragraph 13 above).", "63. However, it appears that the existing legislative framework did not leave the judges, or in this case the forensic experts, any room for an individualised assessment of the applicant’s situation. The CC distinguishes between full capacity and full incapacity, but does not provide for a “tailor ‑ made response” (see paragraphs 26 and 27 above; see also Shtukaturov, § 95, and A.N. v. Lithuania, § 124, both cited above). The Constitutional Court, in its recent Decision no. 601 of 16 July 2020, has also found that the applicable legislative provision is not accompanied by sufficient safeguards as it does not take into account the fact that there may be different degrees of incapacitation, or the diversity of a person’s interests (see paragraph 31 above).", "64. In its final decision of 27 February 2018, the Buzău County Court acknowledged the fact that the legislation did not allow for a more nuanced response to the applicant’s problem (see paragraph 19 above). Furthermore, the Constitutional Court has recently declared the legal provisions in question to be unconstitutional and in violation of the State’s international obligations with respect to the protection of the rights of people with disabilities (see paragraph 31 above). The Court notes with satisfaction that these recent findings are also consistent with the Court’s case-law in the matter (see, among many other authorities, Shtukaturov, cited above, § 95, and Nikolyan v. Armenia, no. 74438/14, §§ 122-23, 3 October 2019, with further references).", "65. That said, the fact remains that in accordance with the applicable legal provisions, at the time when it was taken in respect of the applicant, that measure could not be modulated and the applicant’s actual needs and wishes could not be factored into the decision ‑ making process.", "66. As a result, in those circumstances, the applicant’s rights under Article 8 were restricted by law more than was strictly necessary. There has accordingly been a violation of Article 8 in respect of the applicant’s legal incapacitation.", "(ii) Change of legal guardian", "67. The Court observes that the change of legal guardian is closely related to the applicant’s lack of legal capacity, and reiterates its finding that the latter undeniably constituted serious interference with the applicant’s right to respect for his private life as protected under Article 8 (see paragraphs 53, 58 and 61 above). It further notes that the legal guardian plays a significant role in the life of a person divested of legal capacity, as in practice the guardian exercises that person’s rights on his or her behalf (see paragraph 61 above).", "68. This complaint is, in essence, directed at the fact that the applicant had no say in the proceedings leading to the appointment of a new guardian. The Court observes that the applicant, on account of his legal incapacitation, was ultimately prevented from deciding for himself about who would protect his interests and exercise his rights. There has accordingly been interference with the applicant’s right to respect for his private life under Article 8 of the Convention (see, mutatis mutandis, A.-M.V. v. Finland, no. 53251/13, § 77, 23 March 2017).", "69. The change of legal guardian had a legal basis, namely Article 173 of the CC (see paragraph 26 above). The Court also has no reason to doubt that the measure was taken in the applicant’s interests (see, mutatis mutandis, paragraph 59 above).", "70. It thus remains to be ascertained whether the measure was necessary in the circumstances of the case. In this regard the Court observes that the proceedings before the Bucharest District Court took place between the social welfare authorities and the two legal guardians. The applicant was not present in court (see paragraph 22 in fine above).", "71. Although, as pointed out by the Government, the applicant at one point appears to have given his consent to the change of legal guardian, his opinion did not feature in the court’s reasoning (see paragraph 24 above). In fact, it appears that the applicant’s statement was not even part of the court file (see paragraph 24 in fine above).", "72. The applicant was excluded from those proceedings for the sole reason that he had been placed under guardianship, without any consideration for his actual condition or capacity to understand the matter and express his preferences. In this respect the case differs from A. ‑ M.V. v. Finland (cited above, §§ 85-86), where the applicant was heard by the court and his wishes as to his choice of residence were taken into account along with expert evidence and witness testimony.", "73. In this regard the Court is also not convinced that the applicant would have had a real opportunity to appeal against the impugned decision (see paragraphs 34 and 52 above), not least because it appears that the decision in question was never served on the applicant (see paragraphs 22 in fine and 25 above, and, mutatis mutandis, X and Y v. Croatia, cited above, § 66 ). The Court further reiterates that, at that time, the only instance in which a person divested of legal capacity could apply to a court was to seek to have his or her incapacitation measure lifted (see paragraph 30 above). The Court therefore dismisses the Government’s objection of non ‑ exhaustion of domestic remedies (see paragraphs 34-37 above).", "74. In the light of the foregoing, the Court considers that the decision‑making process leading to the impugned decision of 22 August 2019 (see paragraph 23 above) was not conducted so as to ensure that the applicant’s current state of health was properly assessed and that all views and interests were duly taken into account (see the case-law quoted in paragraph 56 above; see also, mutatis mutandis, Cînța, cited above, § 57, and contrast A. ‑ M.V. v. Finland, cited above, § 89). The Court is thus not satisfied that the said procedure was accompanied by safeguards that were commensurate with the gravity of the interference and the seriousness of the interests at stake (see also, mutatis mutandis and in the context of Article 6 § 1 of the Convention, Stanev v. Bulgaria [GC], no. 36760/06, § 241, ECHR 2012).", "75. For the above-mentioned reasons, the Court considers that it has not been shown that the decision on the change of legal guardian was based on relevant and sufficient reasons and was thus proportionate to the legitimate aim pursued.", "76. There has accordingly been a violation of Article 8 in that regard.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "77. The applicant raised several complaints under Article 6 of the Convention concerning both the proceedings leading to his legal incapacitation and those for the change of his legal guardian.", "78. Lastly, he complained that he had been discriminated against on the grounds of his health – notably his mental illness – and social status, in the proceedings in which he had been divested of his legal capacity. He relied on Article 14 of the Convention, taken together with Article 8.", "79. Bearing in mind the nature and substance of the violations found in the present case on the basis of Article 8 (see paragraphs 66 and 76 above), the Court finds that it is not necessary to examine separately the admissibility and merits of the complaints under Articles 6 and 14 of the Convention (see, mutatis mutandis, Ivinović v. Croatia, no. 13006/13, § 50, 18 September 2014, and Shtukaturov, § 134, cited above).", "APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTIONArticle 46 of the Convention", "Article 46 of the Convention", "Article 46 of the Convention", "80. Article 46 of the Convention provides:", "“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.", "2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”", "81. The applicant requested that the Court indicate general measures to the respondent State, specifically to carry out urgent reform with a view to ensuring that persons with psychosocial disabilities benefit from special protection under the law in line with the international standards.", "82. The Court reiterates that under Article 46 of the Convention the Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects. The Court also reiterates that it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention (see N. v. Romania, cited above, § 215, with further references).", "83. However, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see, for instance, Stanev, cited above, § 255, with further references).", "84. In the present case, the Court is of the view that the shortcomings identified are liable to give rise to further justified applications in the future. For this reason, in the light of its finding of a violation of Article 8 of the Convention (see paragraph 66 above), and regard being had to the Constitutional Court’s findings in its decision of 16 July 2020 (see paragraph 31 above), the Court finds it crucial that the respondent State adopt the appropriate general measures with a view to bringing its legislation and practice into line with those findings of the Constitutional Court and with the international standards, including the Court’s case ‑ law, in the matter.", "Article 41 of the Convention", "85. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "86. The applicant claimed 15,000 euros (EUR) in respect of non ‑ pecuniary damage.", "87. The Government considered the claim to be unrelated to the alleged violation and excessive, and argued that the finding of a violation should constitute sufficient just satisfaction.", "88. The Court considers that the applicant must have sustained non‑pecuniary damage which cannot be compensated for solely by the finding of a violation. Having regard to the nature of the violation found and making its assessment on an equitable basis, the Court awards the applicant EUR 7,500 in respect of non-pecuniary damage.", "89. If, at the moment of payment of the award, the applicant is legally incapacitated, the Government should ensure that the amount awarded is transferred to the legal guardian, on the applicant’s behalf and in his best interests (see Lashin v. Russia, no. 33117/02, § 129, 22 January 2013).", "Costs and expenses", "90. The applicant also claimed EUR 9,480 for the costs and expenses incurred before the Court, to be paid directly into his representative’s bank account.", "91. The Government contested the claims and argued that the costs claimed in respect of legal representation before the Court were excessive.", "92. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 9,480 for the proceedings before the Court, plus any tax that may be chargeable to the applicant. This sum is to be paid directly into the applicant’s representative’s bank account (see, for instance, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, ECHR 2016 (extracts)).", "Default interest", "93. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "7. The applicants, David (the first applicant) and Carol (the second applicant) Glass, are United Kingdom nationals. The first applicant, born in 1986, is a severely mentally and physically disabled child who requires twenty-four hour attention. The second applicant is his mother.", "I. THE CIRCUMSTANCES OF THE CASE", "8. The facts of the case, as submitted by the parties, may be summarised as follows.", "9. The first applicant had been particularly unwell since July 1998 when he was admitted to St Mary's Hospital, one of two hospitals belonging to the Portsmouth Hospitals National Health Service (NHS) Trust (“the Trust”). He was operated on in order to alleviate an upper respiratory tract obstruction. The first applicant suffered post-operative complications, including infections, and had to be put on a ventilator since he had become critically ill.", "10. During the period of the first applicant's treatment, discussions took place at the hospital between the second applicant and intensive- care staff and paediatricians. Among the views expressed was that, despite the best care, the first applicant was dying and that further intensive care would be inappropriate. The second applicant and other family members were not happy with this opinion, although a note drawn up on 30 July 1998 by Dr Smith mentioned that the family had appeared to accept the situation “without distress or significant surprise”. However, on 31 July 1998, following an “unconstructive and confrontational” meeting with family members, the hospital offered to arrange for an outside opinion on David's condition and the suitability of further active intensive - care therapy. This offer was made twice and on both occasions was refused. The Trust consulted its solicitors and advised the applicants to consult their solicitors.", "11. However, the first applicant's condition improved and on 31 July 1998 he was able to be returned from intensive care to the paediatric ward. The applicants draw attention to the fact that the first applicant's notes on being discharged from intensive care made reference to a “demanding family”. They also observe that a note of Dr Wozniak drawn up on 3 August 1998 stated:", "“I think [the first applicant] would not survive this illness despite our efforts, but our efforts continue and we will continue his antibiotics, physio'and attempt to find feeds that he will tolerate ... We may need to consider measures to relieve distress e.g. hyoscine for the secretions, morphine and the risk of those measures and mum felt that this was not appropriate at present.”", "12. The first applicant was eventually able to return home on 2 September 1998. However, he had to be readmitted to the hospital on several occasions thereafter on account of respiratory tract infections.", "On one such occasion, on 8 September 1998, the doctors discussed with the second applicant the use of morphine to alleviate distress. The second applicant expressed her opposition to the use of morphine or other drugs to relieve distress. She told the doctors that in the event that the first applicant's heart stopped she would expect resuscitation, including intubation. Dr Walker considered that this would not be in the first applicant's best interests, and stated that if death were inevitable all that was on offer was “morphine and TLC [tender loving care]”. Dr Walker's case notes recorded that:", "“These replies [of the second applicant] are contrary to decisions particularly previously made and I do not believe that further intensive care is in [the first applicant's] best interest. This needs to be resolved before it becomes necessary and I have therefore said that we need a second opinion – if necessary appointed by the courts to ensure an impartial decision by which we would all comply.”", "That same day the applicants'general practitioner informed the hospital that he had been contacted by the applicants'solicitor about the family's concern that the first applicant would be “helped on his way” with morphine.", "13. Dr Walker reported as follows on a discussion which she had with the second applicant on 8 September 1998 :", "“If [the first applicant] deteriorates rapidly he should receive bag and mask positive pressure respiration, but no cardiac massage and no intravenous or other drugs to resuscitate him.”", "14. As to the use of morphine, Dr Walker stressed at the meeting that the doctors would never prescribe it or other sedatives without first discussing this with the second applicant. Dr Walker stated in her notes:", "“I have told [the second applicant] that we can give morphine to alleviate distress even vs. their wishes (and we can – I am assured by the Official Solicitor that no judge has ever overturned a doctor's decision to withdraw treatment/alleviate symptoms) but we wouldn't without telling them.”", "15. According to the Government, the agreement as regards non-resuscitation was confirmed with the second applicant on 9 September 1998 by Dr Hallet. Dr Hallet's contemporaneous notes on the matter state:", "“The position appears to me to be precarious. He may recover with the antibiotics but the inability to cough secretions makes it possible that he will deteriorate and die. I have discussed the latter scenario. Mother says that she would like bag and mask but understands that it would not be appropriate to go on to full intubation and ITU treatment. This is as discussed with Dr Walker.”", "16. Dr Hallet and the second applicant also discussed on that occasion the use of morphine in therapeutic doses. The applicants point out that Dr Hallet recognised that:", "“In the event of total disagreement we should be obliged to go to the courts to provide support for decision. Mother says she does not understand this.”", "17. Dr Hallet's notes record the following:", "“Mother said that she would not contemplate euthanasia and I said that we would not either. The question of morphine came up and she agrees with the use of morphine in therapeutic doses to overcome pain if necessary.", "... in view of today's and yesterday's discussions with mother which appear to have achieved a common ground, involvement of the court may not be necessary.”", "18. The first applicant's condition deteriorated. He was admitted to St Mary's Hospital on 15 October 1998, and then again on 18 October 1998 following respiratory failure.", "19. The first applicant was treated over the course of 19 October 1998. His condition was reviewed on separate occasions by two doctors, both of whom expressed serious concern about his prospects of surviving. Dr Walker observed that the first applicant looked “ghastly” and “exhausted”.", "20. At 1.30 p.m. on 20 October 1998, the medical opinion was that the first applicant “was going into the terminal phase of respiratory failure ”.", "21. At 5.45 p.m. on 20 October 1998, Dr Hallet noted that the first applicant was “dying from his lung disease”.", "22. The doctors treating the first applicant advised that diamorphine should be administered to him, believing that he had entered a terminal phase and required pain relief. The second applicant and other members of the family did not agree with the doctors'view that her son was dying and were very concerned that the administration of diamorphine (previously morphine had been mentioned) would compromise his chances of recovery. The second applicant voiced her concerns at a meeting with Drs Walker and Hallet and the Chief Executive of the Trust. A woman police officer was also present. The hospital persisted in its wish to give the first applicant diamorphine, while the second applicant was given an assurance that he would only be given “ the smallest possible dose ”. According to the applicants, the Chief Executive of the Trust had an influential role at the meeting and made it clear to the second applicant that diamorphine would be given to the first applicant. They refer in this connection to a letter written by the Chief Executive to the applicants'MP on 23 November 1998, in which he stated that he had instructed the doctors to administer diamorphine to the first applicant at the minimum dosage over a twenty-four hour period. The Government assert that the Chief Executive had no role to play whatsoever in the exercise of clinical judgment in the first applicant's case.", "23. The notes of Drs Walker, Ashton and Hallet all stressed that the administration of morphine was not intended to kill the first applicant but to relieve his distress. Dr Hallet observed in his notes that the doctors who had met with the second applicant had stressed that the “use of morphine is NOT euthanasia – it is to relieve [the first applicant's] distress ...”.", "24. The second applicant subsequently expressed the wish to take the first applicant home if the doctors were correct in their view that he was dying. A police officer in attendance advised her that if she attempted to remove him, she would be arrested. The hospital also indicated that unless the family members present allowed the doctors to commence diamorphine the police would remove them also. The second applicant tried without success to contact her solicitor, including at the latter's home.", "25. A diamorphine infusion was commenced at 7 p.m. on 20 October 1998. The applicants maintain that the dose administered, namely 1 mg per hour, was in reality an adult dose and excessive for a child of the first applicant's age. The Government deny this and point to the first applicant's weight and to the fact that previous treatment with opiates had rendered the first applicant more tolerant to them.", "26. A dispute broke out in the hospital involving the family members (but not the second applicant) and the doctors. The family members believed that the first applicant was being covertly euthanased and attempted to prevent the doctors from entering the first applicant's room. The hospital authorities called the security staff and threatened to remove the family from the hospital by force.", "27. A do -not -resuscitate order (DNR) was put in the first applicant's medical notes without consulting the second applicant.", "28. The dosage was reduced by half at 10 a.m. on 21 October 1998 in response to the family's continuing objections. The Government draw attention to the views of the doctors that the dose administered to the first applicant had improved his condition. Dr Walker found that it was:", "“a real relief and pleasant to see [the first applicant] peaceful and settled ... and his overall condition including agitation and distress had markedly improved ”.", "29. The following day the second applicant found that her son's condition had deteriorated alarmingly and was worried that this was due to the effect which the diamorphine was having on him. The family became extremely agitated and demanded that diamorphine be stopped. Dr Walker stated that this was only possible if the family agreed not to resuscitate or stimulate the first applicant. The Government contend that Dr Walker's objective was to prevent the family from disturbing the first applicant by creating undue noise and touching him, since at that time he was peaceful, breathing deeply and was not in distress.", "30. The family tried to revive the first applicant and a fight broke out between certain members of the family and Drs Walker and Ashton.", "31. The second applicant successfully resuscitated her son while the fight was going on. At some stage the police were summoned to the hospital in response to the assaults on Drs Walker and Ashton. Several police officers were injured and the mother of another patient on the ward was pushed against a wall. All but one of the children on the ward had to be evacuated. The injuries sustained by Drs Walker and Ashton were such that they were unable to perform their normal duties for a time.", "32. The first applicant's condition improved and he was able to respond to stimuli from his relatives. He was able to be discharged on 21 October 1998.", "33. The second applicant states that the Trust made no arrangements for any alternative care on discharge for the first applicant. They mention that the Trust did not arrange for him to be given an antidote for diamorphine and that the second applicant had to acquire equipment for measuring his oxygen saturation. In this connection, the Government draw attention to a report by Dr Hallet, which states:", "“It was felt that further care within the hospital setting was impossible and that he would be better managed at home, provided that we could obtain oxygen for the home. Arrangements were made to obtain oxygen and I discussed with his general practitioner to take on the responsibility of caring for his major chest problems at home. I then telephoned the Clinical Director at Southampton General Hospital to enquire whether they would accept him if he had to be readmitted in view of the severe disturbances to the hospital staff. I discussed going home with his mother who agreed to this and we then made telephone calls to community nurses and made arrangements for home oxygen. Following this transport was arranged to take the patient home.”", "34. On 23 June 2000 some of the family members involved in the fracas with the doctors were convicted of assault and ordered to be excluded from the hospital. On 28 July 2000 their sentences were reduced on appeal. On 26 October 1999 the Trust had dropped its civil action for trespass against the second applicant for want of a legal basis.", "On 5 November 1998 the Medical Director of the Trust notified the second applicant in a letter that the paediatric staff at the hospital were anxious about a repetition of the problems which arose when her son was last admitted and were no longer confident of being able to give him the treatment he required. The letter continued:", "“Unfortunately [ Portsmouth Hospital ] believe that all we could offer [the first applicant] would be to make his remaining life as comfortable as possible and take no active steps to prolong life. This obviously means withholding or giving treatment with which you may not agree. As there seems no easy way to resolve these differences it would be sensible, if [the first applicant] required further inpatient care, for this to be provided at another hospital.”", "35. The second applicant was informed that Southampton General Hospital, about twenty-five miles from her home, was willing to admit and treat her son should he suffer a further attack.", "36. The family's general practitioner subsequently contacted Southampton General Hospital with a view to discussing arrangements for the first applicant's admission in the event of a future emergency.", "37. The second applicant applied for judicial review of the decisions made by the Trust with regard to the medical treatment of her son. The matter came before Mr Justice Scott Baker.", "38. On 21 April 1998 Mr Justice Scott Baker ruled that the Trust's decision was not susceptible to review because the situation had passed and would not arise again at the hospitals managed by it or, it was to be hoped, at any other hospital. He added:", "“If there is serious disagreement, the best interests procedure can be involved at short notice and the court will resolve it on the basis of the facts as they are then. They will almost inevitably be different from the facts as they were in October 1998. ... In any event it is unclear precisely what the facts were in October 1998 on the evidence that is before this court. ... Furthermore, if there is a crisis in the future, I am confident that if the matter is brought before the court the Official Solicitor will again provide assistance.”", "39. In Mr Justice Scott Baker's view, judicial review was too blunt an instrument for the sensitive and on-going problems of the type raised by the case. In particular, he considered that it would be very difficult to frame any declaration in meaningful terms in a hypothetical situation so as not to restrict unnecessarily proper treatment by the doctors in an on-going and developing matter. He stressed in conclusion:", "“Nothing, I would finally say, should be read into this judgment to infer that it is my view that [ Portsmouth Hospital ] in this case acted either lawfully or unlawfully.”", "40. The second applicant applied for permission to appeal to the Court of Appeal. The application was refused on 21 July 1999. Giving judgment, Lord Woolf, Master of the Rolls, was of the view that the considerations which might arise in relation to the first applicant and other children who suffered from similar disabilities were almost infinite and for the courts to try and produce clarity would be a task fraught with danger. He stated:", "“There are questions of judgment involved. There can be no doubt that the best course is for a parent of a child to agree on the course which the doctors are proposing to take, having fully consulted the parent and for the parent to fully understand what is involved. That is the course which should always be adopted in a case of this nature. If that is not possible and there is a conflict, and if the conflict is of a grave nature, the matter must then be brought before the court so the court can decide what is in the best interests of the child concerned. Faced with a particular problem, the courts will answer that problem. ...", "... The difficulty in this area is that there are conflicting principles involved. The principles of law are clearly established, but how you apply those principles to particular facts is often very difficult to anticipate. It is only when the court is faced with that task that it gives an answer which reflects the view of the court as to what is in the best interests of the child. In doing so it takes into account the natural concerns and the responsibilities of the parent. It also takes into account the views of the doctors, and considers what is the most desirable answer taking the best advice it can obtain from, among others, the Official Solicitor. That is the way, in my judgment, that the courts must react in this very sensitive and difficult area.”", "41. Lord Woolf disagreed with Mr Justice Scott Baker's view that the applicants had used the wrong legal procedure. In his opinion, “particularly in cases regarding children, the last thing the court should be concerned about is whether the right procedure has been used in the particular case”.", "42. The second applicant complained to the General Medical Council about the conduct of the doctors involved in her son's care, in particular that they had assaulted him by administering heroin to him against her wishes and without a court authorisation.", "43. On 7 January 2000 the General Medical Council concluded that its investigation revealed that the doctors involved had not been guilty of serious professional misconduct or seriously deficient performance and that the treatment complained of had been justified in the light of the emergency situation which confronted the doctors at the material time. According to the General Medical Council, the test for bringing disciplinary proceedings against the doctors was not satisfied on the evidence. It had asked itself in this connection whether the doctors put themselves in a reasonable position from which to arrive at the decision they did and whether the decision reached was so “outrageous” that no reasonably competent doctor could have reached it.", "44. The second applicant also complained to the Hampshire police about the conduct of the doctors who had treated her son. An investigation was opened. The doctors were interviewed and a report sent to the Crown Prosecution Service.", "On 8 May 2000 the second applicant's solicitors informed her that the Crown Prosecution Service had decided not to bring charges against the doctors involved for lack of evidence. In a letter dated 16 June 2000 to her solicitors, the Crown Prosecution Service indicated the reasons which led to this finding as well as the various materials relied on in reaching its conclusion on the advisability of bringing charges against the doctors in relation to the offences of attempted murder and conspiracy to murder and offences under the Offences against the Person Act 1861." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "45. Paragraph 24 of the General Medical Council's guidance “ Seeking patients'consent: the ethical considerations ” provides:", "“Where a child under 16 years old is not competent to give or withhold the informed consent, a person with parental responsibility may authorise investigations or treatment which are in the child's best interests. This person may also refuse any intervention where they consider that refusal to be in the child's best interest, but you are not bound by such a refusal and may seek a ruling from the court. In an emergency, where you consider that it is in the child's best interest to proceed, you may treat the child, provided it is limited to that treatment which is reasonably required in an emergency.”", "In Re J. (A Minor) (Wardship: Medical Treatment) ([1990] 3 All England Law Reports), Lord Donaldson, Master of the Rolls, stated:", "“The doctors owe the child a duty to care for it in accordance with good medical practice recognised as appropriate by a competent body of professional opinion ... This duty is however subject to the qualification that, if time permits, they must obtain the consent of the parents before undertaking serious invasive treatment.", "The parents owe the child a duty to give or withhold consent in the best interests of the child and without regard to their own interests.", "The court when exercising the parens patriae jurisdiction takes over the rights and duties of the parents, although this is not to say that the parents will be excluded from the decision-making process. Nevertheless in the end the responsibility for the decision whether to give or to withhold consent is that of the court alone.", "...", "No-one can dictate the treatment to be given to the child – neither court, parents nor doctors. There are checks and balances. The doctors can recommend treatment A in preference to treatment B. They can also refuse to adopt treatment C on the grounds that it is medically contra-indicated or for some other reason is a treatment which they could not conscientiously administer. The court or parents for their part can refuse to consent to treatment A or B or both, but cannot insist on treatment C. The inevitable and desirable result is that choice of treatment is in some measure a joint decision of the doctors and the court or parents.", "... ”", "In A National Health Service Trust v. D. ([2000] Family Court Reports 577), it was held:", "“The court's clear respect for the sanctity of human life must impose a strong obligation in favour of taking all steps capable of preserving life, save in exceptional circumstances.”", "46. In that case, the court accepted the views of doctors treating a child that resuscitation of the child in the event of respiratory or cardiac arrest would be inappropriate.", "47. According to the Government, English law recognises that it may be in the best interests of a child or of an adult to be treated with medication which relieves his symptoms but has the side-effect of hastening death.", "According to Part 3B of the British Medical Association guidance “ Withholding and withdrawing medical treatment: guidance for decision making ”:", "“... where there is reasonable uncertainty about the benefit of life-prolonging treatment, there should be a presumption in favour of initiating it, although there are circumstances in which active intervention (other than basic care) would not be appropriate since best interests is not synonymous with prolongation of life ... If the child's condition is incompatible with survival or where there is broad consensus that the condition is so severe that treatment would not provide a benefit in terms of being able to restore or maintain the patient's health, intervention may be unjustified. Similarly, where treatments would involve suffering or distress to the child, these and other burdens must be weighed against the anticipated benefit, even if life cannot be prolonged without treatment.”", "Paragraph 15.1 of the 2001 British Medical Association guidance “ Withholding and withdrawing life-prolonging medical treatment ” states:", "“Those with parental responsibility for a baby or young child are legally and morally entitled to give or withhold consent to treatment. Their decisions will usually be determinative unless they conflict seriously with the interpretation of those providing care about the child's best interests.”", "Paragraph 15.2 states:", "“The law has confirmed that best interests and the balance of benefits and burdens are essential components of decision making and that the views of parents are a part of this. However, parents cannot necessarily insist on enforcing decisions based solely on their own preferences where these conflict with good medical evidence.”", "48. At the time of the facts giving rise to the instant application, guidance had been published by the Royal College of Paediatrics and Child Health indicating the procedures that should normally be followed in the event of a parent dissenting from the opinion of the health - care team that treatment should be withheld from a child. The guidance states that a second opinion should normally be offered and the parent should be allowed time to consult advisers of their choice. Paragraph 3.4.3 states:", "“In most cases, with proper explanation and adequate time, parents can accept medical advice, but if the parents do not consent to withdrawal or withhold consent, a second opinion should be obtained and then the courts should be consulted. The Official Solicitor's Office can be telephoned for advice which will help clarify the need for court involvement. ”", "Guidance published by the Department of Health in 2001, entitled “ Consent: working with children”, deals explicitly with the situation where clinicians believe that treatment which the parents want is not appropriate. It states:", "“One example would be where a child is very seriously ill, and clinicians believe that the suffering involved in further treatment would outweigh the possible benefits. Parents cannot require you to provide a particular treatment if you do not believe that it is clinically appropriate, but again the courts can be asked to rule if agreement cannot be reached. While a court would not require you to provide treatment against your clinical judgment, it could require you to transfer responsibility for the child's care to another clinician who does believe that the proposed treatment is appropriate.”", "49. In Re A. (Conjoined Twins: Surgical Separation), Lord Justice Ward stated:", "“Since the parents are empowered at law, it seems to be that their decision must be respected and in my judgment the hospital would be no more entitled to disregard their refusal than they are to disregard an adult person's refusal. I derive this from Re (A Minor) (Wardship: Consent to Treatment) [1992] Fam. 11, 22, where Lord Donaldson of Lymington, Master of the Rolls, said:", "' It is trite law that in general a doctor is not entitled to treat a patient without the consent of someone who is authorised to give that consent. If he does so, he will be liable in damages for trespass to the person and may be guilty of a criminal assault'”", "50. Under English law, there may be circumstances in which it is not practicable to seek a declaration from the courts, for example in an emergency situation where speedy decisions have to be taken concerning appropriate treatment. In Re C. (A Minor ) ( [1998] Lloyd's Reports: Medical 1), Sir Stephen Brown affirmed that the decision of a doctor whether to treat a child", "“is dependent upon an exercise of his own professional judgment, subject only to the threshold requirement that save in exceptional cases usually of an emergency he has the consent of someone who has authority to give that consent”.", "51. This is reflected in paragraph 14 of the Reference guide to consent for examination or treatment, which states:", "“In an emergency it is justifiable to treat a child who lacks capacity without the consent of a person with parental authority, if it is impossible to obtain consent in time and if the treatment is vital to the survival or health of the child.”", "52. In Re T (Adult: Refusal of Treatment) ([1994] 1 Weekly Law Reports Fam. 95), Lord Donaldson stated:", "“If in a potentially life- threatening situation or one in which irreparable damage to the patient's health is to be anticipated, doctors or health authorities are faced with a refusal by an adult patient to accept essential treatment and they have real doubts as to the validity of that refusal, they should in the public interest, not to mention that of the patient, at once seek a declaration from the courts as to whether the proposed treatment would or would not be lawful. This step should not be left to the patient's family, who will probably not know of the facility and may be inhibited by questions of expense. Such cases will be rare, but when they do arise ... the courts can and will provide immediate assistance.”", "53. The Department of Health's aide- mémoire on consent provides:", "“4. Giving and obtaining consent is usually a process, not a one-off event. Patients can change their minds and withdraw consent at any time. If there is any doubt, you should always check that the patient still consents to your caring for or treating them.", "Can children consent for themselves?", "5. Before examining, treating or caring for a child, you must also seek consent. Young people aged 16 and 17 are presumed to have the competence to give consent for themselves. Younger children who understand fully what is involved in the proposed procedure can also give consent (although their parents will ideally be involved). In other cases, someone with parental responsibility must give consent on the child's behalf, unless they cannot be reached in an emergency. ...", "What information should be provided?", "...", "7. Parents need sufficient information before they can decide whether to give their consent: for example information about the benefits and risks of the proposed treatment, and alternative treatments. If the patient is not offered as much information as they reasonably need to make their decision, and in a form they can understand, their consent may not be valid. ”", "Non-resuscitation", "54. Guidelines published in March 1993 by the British Medical Association and the Royal College of Nursing in conjunction with the Resuscitation Council provide in paragraph 1:", "“It is appropriate to consider a do-not-resuscitate order (DNR) in the following circumstances:", "a. Where the patient's condition indicates that effective Cardiopulmonary Resuscitation (CPR) is unlikely to be successful.", "b. Where CPR is not in accord with the recorded, sustained wishes of the patient who is mentally competent.", "c. Where successful CPR is likely to be followed by a length and quality of life which would not be acceptable to the patient.”", "55. Paragraph 3 states:", "“The overall responsibility for a DNR decision rests with the consultant in charge of the patient's care. This should be made after appropriate consultation and consideration of all aspects of the patient's condition. The perspectives of other members of the medical and nursing team, the patient and with due regard to patient confidentiality, the patient's relatives or close friends, may all be valuable in forming the consultant's decision.”", "56. Paragraph 10 provides:", "“Discussions of the advisability or otherwise of CPR will be highly sensitive and complex and should be undertaken by senior and experienced members of the medical team supported by senior nursing colleagues. A DNR order applies solely to CPR. It should be made clear that all other treatment and care which are appropriate for the patient are not precluded and should not be influenced by a DNR order.”", "57. Current departmental guidance is set out in “ Resuscitation policy” (HSC Circular 2000/028). It states:", "“Resuscitation decisions are amongst the most sensitive decisions that clinicians, patients and parents may have to make. Patients (and where appropriate their relatives and carers) have as much right to be involved in those decisions as they do in other decisions about their care and treatment. As with all decision making, doctors have a duty to act in accordance with an appropriate and responsible body of professional opinion.”", "III. RELEVANT INTERNATIONAL MATERIAL", "58. The Council of Europe's Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (opened to signature at Oviedo on 4 April 1997), contains the following principles regarding consent:", "“ Chapter II – Consent", "Article 5 – General rule", "An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.", "This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.", "The person concerned may freely withdraw consent at any time.", "Article 6 – Protection of persons not able to consent", "1. Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.", "2. Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law.", "The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity.", "3. Where, according to law, an adult does not have the capacity to consent to an intervention because of a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law.", "The individual concerned shall as far as possible take part in the authorisation procedure.", "4. The representative, the authority, the person or the body mentioned in paragraphs 2 and 3 above shall be given, under the same conditions, the information referred to in Article 5.", "5. The authorisation referred to in paragraphs 2 and 3 above may be withdrawn at any time in the best interests of the person concerned.", "Article 7 – Protection of persons who have a mental disorder", "Subject to protective conditions prescribed by law, including supervisory, control and appeal procedures, a person who has a mental disorder of a serious nature may be subjected, without his or her consent, to an intervention aimed at treating his or her mental disorder only where, without such treatment, serious harm is likely to result to his or her health.", "Article 8 – Emergency situation", "When because of an emergency situation the appropriate consent cannot be obtained, any medically necessary intervention may be carried out immediately for the benefit of the health of the individual concerned.", "Article 9 – Previously expressed wishes", "The previously expressed wishes relating to a medical intervention by a patient who is not, at the time of the intervention, in a state to express his or her wishes shall be taken into account.”", "THE LAW", "1. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "59. The applicants stressed that it must be concluded that domestic law and practice failed in the circumstances of this case to ensure effective respect for the first applicant's right to physical and moral integrity within the meaning of “private life” as referred to and guaranteed by Article 8 of the Convention. That provision provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "60. The Government disagreed.", "A. The parties'submissions", "1. The applicants", "61. The applicants maintained that the decisions to administer diamorphine to the first applicant against the second applicant's wishes and to place a DNR notice in his notes without the second applicant's knowledge interfered with the first applicant's right to physical and moral integrity as well as with the second applicant's Article 8 rights. In their submission, the failure of the hospital authority to involve the domestic courts in the decision to intervene without the second applicant's consent resulted in a situation in which there was an interference with the first applicant's right which was not in accordance with the law.", "62. As to the consent issue, the applicants stressed that any agreement which may at one stage have been given to the doctors by the second applicant should not be considered irrevocable. Consent to a particular course of treatment should be capable of being withdrawn in the light of changed circumstances. In her case, it would have been wrong of her to have issued blanket permission to medical professionals without any regard to what might happen to the first applicant subsequently. The applicants relied on the Department of Health's aide- mémoire on consent in this connection.", "63. They further contended that in circumstances where there was a fundamental disagreement between a severely disabled child's legal proxy and doctors, it was inappropriate and unreasonable to leave the task of balancing fundamental rights to doctors. They had no training in such a task, which was pre-eminently a judicial function. In the applicants'submission, the decision-making procedures in the lead-up to the administration of diamorphine to the first applicant and the insertion of a DNR notice in his case notes failed to ensure effective respect for the interests of both applicants, in contravention of the respondent State's positive obligations under Article 8. They further pleaded that the impugned interferences were not “in accordance with the law” since the relevant domestic legal framework did not regulate what the medical authorities were required to do in circumstances where life-threatening treatment was proposed and a DNR notice included in the first applicant's medical notes without the second applicant's knowledge. Leaving the decision to involve the courts to the discretion of doctors was, in their view, a wholly inadequate basis on which to ensure effective respect for the rights of vulnerable patients such as the first applicant. They argued that the arbitrary nature of the current situation could be remedied by introducing greater clarity into, for example, the above-mentioned aide- mémoire on consent (see paragraph 53 above).", "64. In the alternative, the applicants argued that the measures taken had to be seen as unnecessarily brusque and disproportionate in the circumstances.", "2. The Government", "65. For the Government, the actions taken by the hospital staff were fully in line with the requirements of Article 8. They drew attention to the nature of the emergency that confronted the hospital staff and contended that in exceptional circumstances, such as those in issue, the obligation to seek the consent of a parent before treating a child could not be considered an absolute requirement. In any event, the hospital reasonably took the view that it had earlier reached agreement with the second applicant on the course of action to be followed in the event of a future emergency.", "66. Developing this argument, the Government asserted that the applicants had not shown that the decisions were taken in the knowledge that they contravened the wishes of the second applicant. Significantly, the second applicant chose to admit the first applicant to St Mary's Hospital on 20 October 1998, in full knowledge of the tenor of the discussions which she had had with the doctors there in the preceding months. Had there been an irreconcilable difference of opinion between the second applicant and the doctors during the period between 9 September and 20 October 1998, it would have been open to the second applicant to seek another hospital or to bring an application before the High Court. Moreover, it was not practical for the Trust to seek the intervention of the courts with respect to the second applicant's opposition to the administration of diamorphine to her son, given that the latter's condition was clearly perceived to be critical on 20 October 1998. The doctors'duty to act in the first applicant's best interests required them to react swiftly to his serious condition. For the Government, had an urgent application been made to the High Court on 20 October 1998, whether by the Trust or by the second applicant, that court could have offered no remedy that could have benefited her in the circumstances of the case. In particular, the High Court would not have ordered the doctors to provide treatment that they did not consider clinically appropriate and would not have regarded the second applicant's views as determinative if they conflicted seriously with the doctors'views of the first applicant's best interests.", "67. In their submissions on the merits of the applicants'complaint, the Government took issue with the applicants'assertion that the alleged interference was not “in accordance with the law.” In their view, this statement contradicted the applicants'principal contention that the hospital authority should have referred the consent issue to the domestic courts since the doctors treating the first applicant were not, in the applicants'opinion, faced with a genuine emergency. The Government pointed out that the applicants had hitherto consistently relied on the fact that, save in exceptional circumstances, domestic law required that doctors must have the consent of a person with parental responsibility before treating a child who lacks capacity and, in the event of a disagreement, recourse must be had to the courts. It was accordingly incorrect to argue at this stage that there is, and was, no legal framework regulating the involvement of a court or an authority's duty to involve a court.", "3. The applicants'reply", "68. The applicants retorted that it was their concern throughout the Convention proceedings that the Court should consider whether domestic law contained the minimum degree of protection against arbitrariness and whether the necessary safeguards were in place and observed in their case. They stated that, where disabled children were concerned, the domestic legal framework remained a loose patchwork of common law, local practices, ethical guidelines and various sets of official and professional guidelines.", "69. The applicants reiterated that, contrary to the Government's view, the facts indicated that the doctors were not confronted with a situation in which immediate action had to be taken to save the first applicant's life. They noted in this connection that much time was spent by the medical professionals on 20 October 1998 on discussing whether diamorphine should be administered to the first applicant in order to make him more comfortable. During this time the Trust's solicitors should have been making an application, including by telephone, to a High Court judge. The applicants reaffirmed their view that court involvement was crucial in a case where physical integrity, human dignity and fundamental rights were involved.", "B. The Court's assessment", "1. As to the existence of an interference with Article 8", "70. The Court notes that the second applicant, as the mother of the first applicant – a severely handicapped child – acted as the latter's legal proxy. In that capacity, the second applicant had the authority to act on his behalf and to defend his interests, including in the area of medical treatment. The Government have observed that the second applicant had given doctors at St Mary's Hospital on the previous occasions on which he had been admitted authorisation to pursue particular courses of treatment (see paragraphs 15, 17 and 66 above). However, it is clear that, when confronted with the reality of the administration of diamorphine to the first applicant, the second applicant expressed her firm opposition to this form of treatment. These objections were overridden, including in the face of her continuing opposition. The Court considers that the decision to impose treatment on the first applicant in defiance of the second applicant's objections gave rise to an interference with the first applicant's right to respect for his private life, and in particular his right to physical integrity (on the latter point, see, mutatis mutandis, X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 22; Pretty v. the United Kingdom, no. 2346/02, §§ 61 and 63, ECHR 2002-III; and Y.F. v. Turkey, no. 24209/94, § 33, 22 July 2003 ). It is to be noted that the Government have also laid emphasis on their view that the doctors were confronted with an emergency (which is disputed by the applicants) and had to act quickly in the best interests of the first applicant. However, that argument does not detract from the fact of interference. It is, rather, an argument which goes to the necessity of the interference and has to be addressed in that context.", "71. The Court would add that it has not been contested that the hospital was a public institution and that the acts and omissions of its medical staff were capable of engaging the responsibility of the respondent State under the Convention.", "72. It would further observe that, although the applicants have alleged that the impugned treatment also gave rise to an interference with the second applicant's right to respect for her family life, it considers that it is only required to examine the issues raised from the standpoint of the first applicant's right to respect for his physical integrity, having regard, of course, to the second applicant's role as his mother and legal proxy.", "2. Compliance with Article 8 § 2", "73. An interference with the exercise of an Article 8 right will not be compatible with Article 8 § 2 unless it is “in accordance with the law”, has an aim or aims that is or are legitimate under that paragraph and is “necessary in a democratic society” for the aforesaid aim or aims (see Pretty, cited above, § 68).", "74. The Court observes that the applicants have questioned the adequacy of the domestic legal framework for resolving conflicts arising out of parental objection to medical treatment proposed in respect of a child. It is their contention that the current situation confers too much discretion on doctors in deciding when to seek the intervention of the courts when faced with the objection of a parent to treatment which might, as a secondary effect, hasten the death of the child. However, it considers that, in the circumstances of this case, it is not required to address that issue from the standpoint of whether or not the qualitative criteria which have to be satisfied before an interference can be said to have been “in accordance with the law” have been complied with (as to those criteria, see, among many other authorities, Herczegfalvy v. Austria, judgment of 24 September 1992, Series A no. 244, pp. 27-28, §§ 88 ‑ 91). Nor does it consider it necessary to pronounce on the applicants'contention that the authorities failed to comply with the positive obligations inherent in an effective respect for the first applicant's right to physical integrity by failing to adopt measures designed to secure respect for his physical integrity (see, for example, X and Y v. the Netherlands, cited above, p. 11, § 23, and, more recently, Odièvre v. France [GC], no. 42326/98, ECHR 2003-III).", "75. The Court would, however, make two observations in this connection with reference to the facts of this case. Firstly, the regulatory framework in the respondent State is firmly predicated on the duty to preserve the life of a patient, save in exceptional circumstances. Secondly, that same framework prioritises the requirement of parental consent and, save in emergency situations, requires doctors to seek the intervention of the courts in the event of parental objection. It would add that it does not consider that the regulatory framework in place in the United Kingdom is in any way inconsistent with the standards laid down in the Council of Europe's Convention on Human Rights and Biomedicine in the area of consent (see paragraph 58 above); nor does it accept the view that the many sources from which the rules, regulations and standards are derived only contribute to unpredictability and an excess of discretion in this area at the level of application.", "76. For the Court, the applicants'contention in reality amounts to an assertion that, in their case, the dispute between them and the hospital staff should have been referred to the courts and that the doctors treating the first applicant wrongly considered that they were faced with an emergency. However, the Government firmly maintain that the exigencies of the situation were such that diamorphine had to be administered to the first applicant as a matter of urgency in order to relieve his distress and that it would not have been practical in the circumstances to seek the approval of the court. However, for the Court, these are matters which fall to be dealt with under the “necessity” requirement of Article 8 § 2, and not from the standpoint of the “in accordance with the law” requirements.", "77. As to the legitimacy of the aim pursued, the Court considers that the action taken by the hospital staff was intended, as a matter of clinical judgment, to serve the interests of the first applicant. It observes in this connection that it rejected in its partial decision on admissibility of 18 March 2003 any suggestion under Article 2 of the Convention that it was the doctors'intention unilaterally to hasten the first applicant's death, whether by administering diamorphine to him or by placing a DNR notice in his case notes.", "78. Turning to the “necessity” of the interference in issue, the Court considers that the situation which arose at St Mary's Hospital between 19 and 21 October 1998 cannot be isolated from the earlier discussions in late July and early September 1998 between members of the hospital staff and the second applicant about the first applicant's condition and how it should be treated in the event of an emergency. The doctors at the hospital were obviously concerned about the second applicant's reluctance to follow their advice, in particular their view that morphine might have to be administered to her son in order to relieve any distress which the first applicant might experience during a subsequent attack. It cannot be overlooked in this connection that Dr Walker recorded in his notes on 8 September 1998 that recourse to the courts might be needed in order to break the deadlock with the second applicant. Dr Hallet reached a similar conclusion following his meeting with the second applicant on 9 September (see paragraphs 12 and 17 above).", "79. It has not been explained to the Court's satisfaction why the Trust did not at that stage seek the intervention of the High Court. The doctors during this phase all shared a gloomy prognosis of the first applicant's capacity to withstand further crises. They were left in no doubt that their proposed treatment would not meet with the agreement of the second applicant. Admittedly, the second applicant could have brought the matter before the High Court. However, in the circumstances it considers that the onus was on the Trust to take the initiative and to defuse the situation in anticipation of a further emergency.", "80. The Court can accept that the doctors could not have predicted the level of confrontation and hostility which in fact arose following the first applicant's readmission to the hospital on 18 October 1998. However, in so far as the Government have maintained that the serious nature of the first applicant's condition involved the doctors in a race against time with the result that an application by the Trust to the High Court was an unrealistic option, it is nevertheless the case that the Trust's failure to make a High Court application at an earlier stage contributed to this situation.", "81. That being said, the Court is not persuaded that an emergency High Court application could not have been made by the Trust when it became clear that the second applicant was firmly opposed to the administration of diamorphine to the first applicant. However, the doctors and officials used the limited time available to them in order to try to impose their views on the second applicant. It observes in this connection that the Trust was able to secure the presence of a police officer to oversee the negotiations with the second applicant but, surprisingly, did not give consideration to making a High Court application even though “the best interests procedure can be involved at short notice” (see the decision of Mr Justice Scott Baker in the High Court proceedings at paragraph 38 above).", "82. The Court would further observe that the facts do not bear out the Government's contention that the second applicant had consented to the administration of diamorphine to the first applicant in the light of the previous discussions which she had had with the doctors. Quite apart from the fact that those talks had focused on the administration of morphine to the first applicant, it cannot be stated with certainty that any consent given was free, express and informed. In any event, the second applicant clearly withdrew her consent, and the doctors and the Trust should have respected her change of mind and should not have engaged in rather insensitive attempts to overcome her opposition.", "83. The Court considers that, having regard to the circumstances of the case, the decision of the authorities to override the second applicant's objection to the proposed treatment in the absence of authorisation by a court resulted in a breach of Article 8 of the Convention. In view of that conclusion, it does not consider it necessary to examine separately the applicants'complaint regarding the inclusion of the DNR notice in the first applicant's case notes without the consent and knowledge of the second applicant. It would however observe, in line with its admissibility decision, that the notice was only directed against the application of vigorous cardiac massage and intensive respiratory support, and did not exclude the use of other techniques, such as the provision of oxygen, to keep the first applicant alive.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "84. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "85. The applicants submitted that they should each be awarded compensation for non-pecuniary damage in the light of the circumstances of the case. The manner in which the hospital authority chose to handle the differences of view which arose between the second applicant and the medical professionals unnecessarily complicated the first applicant's care. Furthermore, the position of vulnerability in which the first applicant was placed argued in favour of an award of compensation in his own right. The second applicant, for her part, suffered great anxiety and was subjected to unnecessary tension and stress as a result of the hospital authority's handling of the first applicant's treatment. Moreover, she had been left with feelings of injustice and apprehension as to what might happen to the first applicant in the future, given the lack of clarity and foreseeability in current domestic practice.", "86. The Government considered that, in the circumstances, any finding by the Court that there had been a violation of Article 8 would in itself constitute just satisfaction.", "87. The Court stresses that it is not its function to question the doctors'clinical judgment as regards the seriousness of the first applicant's condition or the appropriateness of the treatment they proposed. Moreover, the second applicant has been given clear guidance on how to assert her rights in the event of a future emergency. In addition, it cannot speculate as to what would have been the outcome of an application by the Trust to the High Court for authorisation to pursue the proposed. treatment On the other hand, the second applicant can be considered to have suffered stress and anxiety in her dealings with the doctors and officials representing the Trust as well as feelings of powerlessness and frustration in trying to defend her own perception of what was in the best interests of her child. Deciding on an equitable basis, it awards the applicants jointly 10,000 euros (EUR).", "B. Costs and expenses", "88. The applicants claimed the following amounts (inclusive of value-added tax ): 10,184.31 pounds sterling (GBP), of which GBP 2,525 constituted future anticipated costs of an oral hearing in the case, for solicitors'fees; GBP 11,309.39 for fees charged by junior counsel; and GBP 587.50 for fees charged by senior counsel (at a reduced hourly rate of GBP 250). The applicants supplied itemised bills/fee notes in respect of the various amounts claimed.", "89. The Government observed that the applicants'claim was partly based on costs which might be incurred if an oral hearing were to be held in the case. They further questioned the hourly rate claimed by senior counsel (GBP 250) and suggested that GBP 175 might be a more appropriate rate. Finally, the Government considered that the fifty-six hours'work claimed by junior counsel was excessive, given the time spent on the case by the applicants'solicitors. In their view, thirty-two hours'work should have been sufficient.", "90. The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum ( see The Sunday Times v. the United Kingdom ( Article 50 ), judgment of 6 November 1980, Series A no. 38, p. 13, § 23). Furthermore, legal costs are only recoverable in so far as they relate to the violation found ( see Beyeler v. Italy, (just satisfaction ) [GC], no. 33202/96, § 27, 28 May 2002 ).", "91. The Court notes that it decided to dispense with an oral hearing in the case. Accordingly, any sums claimed in respect of an oral hearing should be rejected. It further notes that in their original application the applicants, in addition to Article 8, relied on Articles 2, 6, 13 and 14 of theConvention. Their submissions on those latter Articles were however dismissed at the admissibility stage, and only the Article 8 complaint was retained for an examination on the merits.", "92. Deciding on an equitable basis, and having regard to the amount granted to the applicants by way of legal aid, the Court awards the applicants EUR 15,000.", "C. Default interest", "93. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "3. The applicant, who is now deceased, was born in 1937 and lived in Paris.", "4. On 23 June 2009 the guardianship judge of the District Court of the 15 th Administrative District of Paris placed the applicant, who was then seventy-two years of age, under enhanced protective supervision ( curatelle renforcée ) for five years, on an initial request from his adoptive daughter. In order to reach her decision, the judge first of all requested the opinions of Dr M.F. and Dr J ‑ P.B., two specialists, who each drew up a medical certificate, on 25 November 2008 and 14 March 2009 respectively. She appointed M.-C.M as supervisor (see paragraphs 24 to 34 below for further details on the protective supervision system).", "5. The applicant applied to the Paris Regional Court for the lifting of the measure, in the alternative for his placement under ordinary supervision, and in the further alternative for the reduction of the period of supervision to twenty-four months. On 18 December 2009 the Paris Regional Court dismissed those requests. It noted that the report drawn up by Dr R., a neuropsychiatrist whom the applicant had consulted, had ruled out any form of dementia but had confirmed a slight cognitive impairment and some psychological fragility and vulnerability, rendering a protective measure necessary in view of the extent of the applicant’s personal assets. The court agreed with Dr B. that the applicant had previously considered the management of his real property as a hobby, that he no longer had the physical and mental capacities for performing that task, that it was important that he be relieved of the said task of managing his business interests and tax returns, and that, similarly, he should no longer be allowed to dispose of his property. However, the court considered that the measure could be adjusted on the basis of the cognitive impairment noted, allowing him to hold a bank account and a cash withdrawal card.", "6. The applicant requested his supervisor’s authorisation to marry M.S., a friend whom he had known since 1996 and who had become his partner in 2008. The supervisor interviewed M.S. and the applicant, at first separately and then together. They informed her of the importance which they attached to the religious dimension of marriage. On 17 December 2009 the supervisor refused to authorise the marriage on the grounds that she had only known the applicant for a few months and that she therefore lacked the necessary background to authorise a wedding.", "7. By order of 21 December 2009, the guardianship judge ordered a social inquiry, and commissioned the Département Union of Family Associations (the “UDAF”) to gather information on the applicant’s living conditions, lifestyle, social status and circle of friends. The applicant appealed to the Paris Court of Appeal against that order.", "8. On 21 December 2009 the guardianship judge commissioned a medical opinion, on her own initiative, in order to consolidate her knowledge of the case file with an eye to determining the applicant’s capacity to enter into wedlock.", "9. On 18 January 2010 the psychiatrist appointed by the judge drew up a detailed medical certificate concluding that the applicant suffered from intellectual disorders. While noting the applicant’s capacity to consent to marriage, the psychiatrist considered him incapable of dealing with the consequences of his consent in terms of his property and finances. In his report, quoting passages from his interview with the applicant, the psychiatrist gave his personal opinion on the facts of the case, including works carried out by the applicant on his apartment. He also considered that some of the arguments put forward by the applicant in favour of his marriage “bordered on the absurd”, including the fact that his grandmothers had also remarried at an advanced age and that he wanted help in looking after himself and carrying out everyday chores.", "10. On 1 March 2010 the Paris Court of Appeal declared inadmissible the applicant’s appeal against the order of 21 December 2009. It held that it was in the interests of a vulnerable adult for the guardianship judge to take all the necessary action to ensure his protection, bearing in mind that a person under a supervision order can only get married with the authorisation of the supervisor, or failing that, of the judge, who could order a social inquiry or an inspection by a person of his or her choosing. The court noted that that was precisely the option which had been taken by the guardianship judge in issuing two separate orders for a medical examination and a social inquiry.", "11. On 1 June 2010 the UDAF submitted its report. It emphasised that there was a financial stake at the heart of a major family conflict, in which the applicant’s interest and well-being did not seem to be given much consideration. It noted that the applicant’s daughter and M.S. accused each other of being primarily interested in the applicant’s fortune, and that it was unclear whether the latter was being influenced by anyone. The UDAF added that the applicant was deeply affected by the conflict and that he seemed to consider marriage as a way of ensuring that he had someone at his side to assist him and to organise his daily life, and to avoid having to end his life on his own.", "12. On 24 June 2010, after hearing the applicant and his daughter, the guardianship judge dismissed the applicant’s request. While noting that no one disputed the latter’s attachment to M.S., it ruled that that was insufficient to justify authorising the planned wedding. Having pointed out that the applicant and M.S. were former alcoholics and that the applicant was apparently still drinking, the judge stated that he “was therefore only seeking greater safety in marriage in order to prevent a possible break-up and therefore the risk of ending his life alone”. Furthermore, she considered that the lack of clarity as to the financial implications of the marriage was particularly worrying as the applicant was torn between his daughter and M.S., and financial considerations had manifestly led to a serious conflict between the two, quoting the UDAF’s findings on that point. Without pronouncing on the religious dimension mentioned by the applicant, she concluded that the planned marriage as it stood was not in the applicant’s interests. The applicant appealed.", "13. By judgment of 6 September 2011 the Paris Court of Appeal upheld the guardianship judge’s decision of 24 June 2010. It noted that although the applicant had on several occasions expressed the wish to marry M.S., the serious disorders from which he had been suffering for several years had severely affected his judgment, as noted in the medical certificates of 14 March 2009 and 18 January 2010. Moreover, his anosognosia had prevented him from planning his joint life with his partner, taking account of the financial and legal implications of marriage. Furthermore, while the applicant seemed emotionally attached to his partner, the court noted that since they had been living together the applicant had been managing his affairs in an increasingly unreasonable manner, and his supervisor had not always been able to protect his interests. In particular, the applicant had had work carried out in the family apartment to the tune of 250,000 euros a few months after his wife’s death, and had placed her furniture in storage under somewhat questionable conditions. The court of appeal also noted that a draft handwritten will had been prepared on 14 August 2009 in M.S.’s favour, observing that according to his lawyer’s submissions, the applicant held assets of some 6,000,000 euros and had concluded with his deceased wife a universal community of assets contract. The court of appeal further noted that the applicant’s relations with his daughter, M.D., had seriously deteriorated. The court of appeal concluded that although the inquiries ordered by the guardianship judge had mentioned the applicant’s and M.S.’s mutual affection, the psychopathological turn in his disorders and his failing perception of the realities of his finances were such that he could not give his informed consent to marriage.", "14. The applicant appealed on points of law. In that appeal he also put a request for a preliminary ruling (a “QPC”) on the constitutionality of Article 460 (1) of the Civil Code. He submitted that that provision contravened, in particular, the principle of freedom of marriage by making the marriage of a supervisee subject to the supervisor’s authorisation, or failing that, to that of the guardianship judge.", "15. By decision of 29 June 2012 (no. 2012-260 QPC), the Constitutional Council, noting that the right to marriage was based on Articles 2 and 4 of the 1789 Declaration of the Rights of Man and the Citizen, declared Article 460 (1) of the Civil Code to be in conformity with the Constitution, given that it did not prohibit marriage but rather permitted it with the supervisor’s authorisation, the withholding of which could be brought before a court, which was required to organise adversarial proceedings followed by a reasoned decision, against which an appeal also lay. The court also considered that, having regard to the personal and pecuniary obligations stemming from marriage, the latter was an important civil act with which the said restrictions on freedom of marriage did not interfere disproportionately.", "16. On 5 December 2012 the Court of Cassation dismissed the applicant’s appeal on points of law. On the one hand, it noted that the Constitutional Council had declared Article 460 (1) of the Civil Code constitutional, and on the other, held that the Paris Court of Appeal had lawfully reasoned its decision by analysing not only the relevant medical certificates but also the other documents on file, thus enabling it to deduce that the applicant was incapable of providing informed consent to his marriage owing both to the psychopathological evolution of his disorders and to his loss of control over the realities of his financial situation.", "17. On 15 February 2016 counsel for the applicant informed the Court of his client’s death on 4 February 2016.", "18. On 6 September 2016 he informed the Court of M.S.’s intention to pursue the application. The Registry of the Court invited the Government to present their comments on that development." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Imposition of a protective measure, and the two systems of supervision", "19. French law establishes legal majority at the age of eighteen, as of which age anyone may exercise the rights available to him or her (Article 414 of the Civil Code). However, some persons of full age are protected by law. Thus persons who are unable alone to protect their own interests owing to a medically certified impairment of their mental or physical faculties are entitled to legal protection (Article 425 of the Civil Code).", "20. French law provides for three categories of persons of full age lacking legal capacity. The first covers “persons of full age under judicial protection”, who only require temporary protection in the conduct of their civil affairs or representation in the performance of specific acts (Article 433 of the Civil Code). The second category concerns persons of full age under supervision orders ( curatélaires ) who are not unable to act alone but require constant assistance or supervision in the conduct of important civil affairs where it has been established that judicial protection cannot provide sufficient protection (Article 440 (1) and 3 of the Civil Code). Lastly, persons who require constant representation in the conduct of civil affairs may be placed under guardianship orders if it is established that neither judicial protection nor supervision will provide sufficient protection (Article 440 (3) and (4) of the Civil Code).", "21. Supervision can take two different forms, namely standard and enhanced. While standard supervision is the ordinary-law mechanism commonly used, a court may at any time order enhanced supervision. The latter arrangement differs in that only the supervisor receives the supervisee’s income in an account opened in the latter’s name. The supervisee personally settles his or her expenditure vis-à-vis third persons. The supervisor is required to draw up an annual accountancy report (Article 472 of the Civil Code).", "22. This protective measure can be ordered by a court only if strictly necessary and where no other legal means or less stringent measures are practicable (Article 428 of the Civil Code). The measure is structured and customised in accordance with the degree of impairment of the individual’s personal faculties (Article 428 (2) of the Civil Code). Applications for a protective measure must, on pain of inadmissibility, be accompanied by a detailed certificate prepared by a medical officer who is selected from a list drawn up by the State Prosecutor (Article 431 (1) of the Civil Code). The person concerned is heard by the judge (Article 432 of the Civil Code).", "23. An application for supervision may be lodged, in particular, by a relative of the person concerned (Article 430 of the Civil Code). The guardianship judge hears the person to be supervised in private session, when he or she may be accompanied by a lawyer or, subject to the judge’s agreement, by a person of his or her choosing (Article 432 of the Civil Code). The judgment establishing the supervision must be notified to the supervisee. Unless provisional enforcement is ordered, the period for appealing and the appeal itself, lodged within fifteen days of the decision or its notification (Article 1239 of the Code of Civil Procedure), stay the execution of the decision (Article 1232 of the Code of Civil Procedure).", "24. The judge establishes the length of the period of supervision, which cannot exceed five years, save in exceptional cases (Article 441 of the Civil Code).", "25. An appeal lies with the regional court against decisions given by the guardianship judge (Article 1239 of the Code of Civil Procedure, version in force at the material time).", "B. Consequences of the supervision order", "26. Persons under supervision orders are prohibited from conducting specific affairs without the supervisor’s assistance (Article 467 of the Civil Code). For the conclusion of a written act, the supervisor’s assistance is manifested by his or her signature on the document beside the protected person’s signature (Article 467 (2) of the Civil Code). Where the supervisor withholds his or her assistance, the supervisee can request the authorisation of the guardianship judge to proceed alone (Article 469 (3) of the Civil Code).", "27. Article 465 of the Civil Code lays down regulations on acts conducted by adults under supervision as of the promulgation of the judgment imposing the protective measure. An act unlawfully conducted by a supervisee may be annulled. The Civil Code sets out three scenarios, depending on the nature of the act: mandatory nullity, nullity subject to proof of damage, and nullity subject to proof of injury or abuse. Nevertheless, the Civil Code explicitly lays down specific rules on specific civil acts, for example the drafting of a will (Article 470 (1) of the Civil Code), inter vivos gifts (Article 470 (2) of the Civil Code), and the conclusion of a “civil solidarity pact” (“ PACS ”, Article 461 of the Civil Code) or marriage (Article 460 (1) of the Civil Code).", "28. A person under a supervision order is only allowed to marry with the authorisation of the supervisor, or failing that, of the judge. In cases where marriage has been contracted without a request for authorisation or where the supervisor has withheld authorisation, the latter may apply for the annulment of the marriage (see Cass. 1re civ., 17 May 1988, appeal ( pourvoi ) no. 86-10817, Bull. I, no. 147, and Cass. 1re civ., 5 May 1993, appeal ( pourvoi ) no. 91-11700).", "29. Supervisees may not conclude a PACS without their supervisors’ assistance (Article 461 (1) of the Civil Code).", "THE LAW", "I. LOCUS STANDI OF M.S.", "A. The parties’ submissions", "1. The Government", "30. First of all, the Government, relying on the judgment in the case of Kurić and Others v. Slovenia, (no. 26828/06, § 276, 13 July 2010), submitted that M.S. was neither an heir to nor a relative of the applicant. Under French law “partner” status did not confer status as heir. On the other hand, M.D., the applicant’s daughter, did hold such status. If M.S. claimed to be the applicant’s universal legatee, the Court had previously ruled that such status alone did not confer the right to pursue the application (see Thévenon v. France (dec.), no. 2476/02, ECHR 2006 ‑ III).", "31. Finally, the Government argued that the applicant’s situation had been a special case, namely that of a person under an enhanced supervision order whose interests the French State had aimed to protect pursuant to the legislation applicable to protected persons of full age. The alleged violation was therefore not an important matter of public interest liable to help clarify, protect or develop the standards set out in the Convention.", "32. The Government deduced from the foregoing considerations that M.S. fulfilled none of the conditions laid down in the Kurić and Others judgment (cited above) and that consequently she could not pursue the application lodged by the applicant. They therefore requested that the Court strike the case out of its list, pursuant to Article 37 § 1 of the Convention.", "2. M.S.", "33. M.S. submitted that she had a legitimate interest in continuing the case in order to pursue the examination of the application lodged by the applicant, with whom she had maintained an intimate, sincere and constant relationship between 2008 and his death in 2016. Their relationship amounted to private and family life within the meaning of Article 8 of the Convention, and the applicant and M.S. had wished to officialise that relationship through marriage. The applicant added that she was primarily concerned by the refusal to authorise her planned marriage to the applicant.", "34. She also affirmed that the application, which concerned access to marriage by an adult under a supervision order, raised an issue which transcended the person and interests of the applicant and his heirs in that the situation in question could affect other persons. Finally, respect for human rights as secured under the Convention and the protocols thereto warranted continuing the application, in pursuance of Article 37 §1 (b) of the Convention.", "B. The Court’s assessment", "35. The Court notes from the outset that the issue before it concerns neither the loss of victim status because the domestic authorities have already remedied the complaint, as was the case in Kurić and Others (cited above) relied upon by the Government, nor the capacity of a third party to lodge an application with the Court on behalf of a deceased person, in which case consideration would be required of whether or not the complaints are transferable or not. In the present case, the Court must adjudicate a different hypothesis, that is to say the pursuit of the application lodged by the initial applicant in his capacity as the direct victim, after his death during the proceedings before the Court.", "36. The Court reiterates that in several cases in which an applicant had died during the proceedings before it, it has had regard to a wish voiced by heirs or close relatives to continue the application (see, for example, Deweer v. Belgium, 27 February 1980, §§ 37-38, Series A no. 35; X v. the United Kingdom, 5 November 1981, § 32, Series A no. 46; Vocaturo v. Italy, 24 May 1991, § 2, Series A no. 206-C; G. v. Italy, 27 February 1992, § 2, Series A no. 228-F; Pandolfelli and Palumbo v. Italy, 27 February 1992, § 2, Series A no. 231-B; X v. France, 31 March 1992, § 26, Series A no. 234-C; and Raimondo v. Italy, 22 February 1994, § 2, Series A no. 281-A), or the existence of a legitimate interest on the part of a person wishing to have the application pursued (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII).", "37. Conversely, the Court has a practice of striking cases out of its list where no heir or close relative wishes to pursue the proceedings (see, among other authorities, Scherer v. Switzerland, judgment of 25 March 1994, §§ 31-32, Series A no. 287, and Thévenon, cited above). The same applies where the request for the continuation of proceedings is submitted by a person who has provided no evidence either of his or her status as heir or close relative of the applicant, or of any legitimate interest (see Léger v. France [GC], no. 19324/02, § 50, 30 March 2009).", "38. In the instant case, the person wishing to pursue the case before the Court is not an heir. In fact, M.S. was the applicant’s partner for some eight years, up until his death. Moreover, neither their relationship nor their intention to marry is in dispute. The Court reiterates that a couple such as the applicant and M.S. who have been living together for many years constitute a “family” for the purposes of Article 8 of the Convention and are entitled to its protection, notwithstanding their relationship exists outside marriage (see Johnston and Others v. Ireland, 18 December 1986, § 56, Series A no. 112; Velikova v. Bulgaria (dec.), no. 41488/98, 18 May 1999; and Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000-VIII). The Court further notes that M.S. requests the continuation of an application which concerns, precisely, the fact that the applicant could not marry her owing to the domestic courts’ refusal to authorise such marriage.", "39. Finally, as the Court pointed out in the above-cited Malhous decision, human rights cases before the Court generally also have a moral dimension, which must be taken into account when considering whether the examination of an application after the applicant’s death should be continued – all the more so if the main issue raised by the case transcends the person and the interests of the applicant (see also Karner v. Austria, no. 40016/98, § 25, ECHR 2003-IX). The Court considers that the subject matter of the present application, that is to say the restrictions on the right to marry of persons placed under a legal protection regime, raises an important general question which transcends the person and the interests of the applicant and his heirs in that it may affect other persons (cf., mutatis mutandis, Malhous, cited above).", "40. The Court therefore considers that in the present case the conditions for striking a case out of the list as defined in Article 37 § 1 of the Convention have not been fulfilled, and that the examination of the application should continue on the basis of Article 37 § 1 in fine. It consequently rejects the Government’s request for the case to be struck out. For practical reasons, the present judgment will continue to use the word “applicant” even though that status is no longer assigned to Roger Delecolle but to his partner, M.S. (see, for example, Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999 ‑ VI, and Ergezen v. Turkey, no. 73359/10, § 30, 8 April 2014).", "II. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION", "41. The applicant complained that he had been unable to marry owing to the fact that his marriage was subject to the authorisation of his supervisor of the guardianship judge. He alleged a violation of Article 12 of the Convention, which provides:", "“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”", "A. Admissibility", "42. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "(a) The applicant", "43. The applicant submitted that the right to marry was a fundamental freedom guaranteed by Article 12 of the Convention and Article 23 of the International Covenant on Civil and Political Rights. In his view, Article 460 (1) of the Civil Code, which, in respect of the marriage of a person under a supervision order, required the authorisation of the supervisor, or failing that, of the guardianship judge, was contrary to the fundamental principle of freedom to marry, a strictly personal and private act the exercise of which should be guaranteed in all cases where the personal consent of an adult supervisee was shown to be genuine. The applicant pointed out that he had explicitly manifested a private and personal wish, motivated inter alia by religious considerations, to marry M.S.", "44. Relying on the judgments in the cases of Frasik v. Poland (no. 22933/02, ECHR 2010 (extracts) and Christine Goodwin v. the United Kingdom [GC] (no. 28957/95, ECHR 2002 ‑ VI), he argued that when the Court was determining a case under Article 12, it did not apply the “necessity” and the “pressing social need” criteria used in the framework of Article 8 of the Convention.", "45. He also considered that the only possibility granted to the supervisor for requesting annulment of the marriage was a measure geared to ensuring a better balance between the freedom to marry and the protection provided to the supervisee.", "46. Finally, the applicant also noted the inconsistency of domestic law in allowing supervisees freely to enter into a PACS.", "(b) The Government", "47. The Government argued that the provisions of Article 460 (1) of the Civil Code did not set forth a general ban on marriage but merely laid down an obligation to obtain the supervisee’s agreement in order to ensure the validity of his or her consent. Those requirements helped to safeguard the protected adults’ consent to marriage and also their interests, in order to prevent the risk of their inheritance being hijacked or their being exposed to psychological influence.", "48. As regards the instant case, the Government observed that several medical reports had been drawn up, both before the imposition of the supervision order and after the applicant had submitted his request for authorisation. The protective measure imposed on the applicant could not have lasted for more than five years, and that period could only be extended by a judge if his personal faculties deteriorated such as to preclude any likelihood of improvement according to the latest research relevant to his state of health. Furthermore, the guardianship judge, whose decisions were subject to appeal, could terminate the supervision order, amend it or replace it with a different measure, including less stringent options.", "49. The Government also emphasised that the applicant had availed himself of all the remedies available to him and been heard by the domestic courts on numerous occasions. The decisions given were duly reasoned and based on the state of health of the applicant, who could not have provided informed consent in view of the deterioration of his perception, his mental and cognitive capacities and his judgement. The domestic courts had also had regard to the extent of his property, the management problems which had emerged since he had started living with his partner, as well as the increasing numbers of unreasonable acts and instances of overspending, or again the drawing up of a will to the advantage of M.S., against the background of a heated dispute between the latter and the applicant’s daughter.", "2. The Court’s assessment", "50. The Court reiterates that Article 12 guarantees the fundamental right of a man and a woman to marry and to found a family. The exercise of this right gives rise to personal, social and legal consequences. It is subject, in both procedural and substantive terms, to the national laws of the Contracting States, but the limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired (see F. v. Switzerland, 18 December 1987, § 32, Series A no. 128; Christine Goodwin, cited above, § 99; and Frasik, cited above, § 88).", "51. In consequence, the matter of conditions for marriage in the national laws is not left entirely to Contracting States as being within their margin of appreciation. This would be tantamount to finding that the range of options open to a Contracting State included an effective bar on any exercise of the right to marry. The margin of appreciation cannot extend so far (ibid.).", "52. The Convention institutions have accepted that limitations on the right to marry laid down in the national laws may comprise formal rules, but also substantive provisions based on generally recognised considerations of public interest, in particular concerning capacity (see Frasik, cited above, § 89).", "53. Moreover, in contrast to Article 8 of the Convention, which sets forth the right to respect for private and family life, and with which the right “to marry and to found a family” has a close affinity, Article 12 does not include any permissible grounds for an interference by the State that can be imposed under paragraph 2 of Article 8 “in accordance with the law” and as being “necessary in a democratic society”, for such purposes as, for instance, “the protection of health or morals” or “the protection of the rights and freedoms of others”. Accordingly, in examining a case under Article 12 the Court would not apply the tests of “necessity” or “pressing social need” which are used in the context of Article 8 but would have to determine whether, regard being had to the State’s margin of appreciation, the impugned interference was arbitrary or disproportionate (see Frasik, cited above, § 90).", "54. The Court first of all observes that persons under supervision are not deprived of the right to marry. On the other hand, their right to marry is subject to prior authorisation, owing to the restriction on their legal capacity, which is one of the substantive grounds whose relevance is acknowledged by case-law.", "55. The Court notes that in the present case the imposition of a supervision order on the applicant corresponds to the requirements set out in the Court’s case-law (see Lashin v. Russia, no. 33117/02, § § 80 ‑ 81, 22 January 2013). Indeed, two specialist medical reports were produced before the measure was imposed. Furthermore, while the applicant appealed to the Regional Court against his placement under supervision (which appeal was dismissed on 18 December 2009), he did not lodge an appeal on points of law (see paragraph 9 above).", "56. As regards the subsequent decision denying the applicant’s right to marry, it was first of all taken by the supervisor, after hearing both the applicant and M.S. (see paragraph 11 above). The guardianship judge then adjudicated, after, first of all, a social inquiry, which highlighted a financial stake at the heart of a major family dispute that had apparently involved little consideration of the applicant’s interests and well-being, and secondly, a psychiatric examination (see paragraphs 12 to 17 above). The psychiatrist appointed by the judge found that the applicant suffered from intellectual disorders, and, while concluding that the applicant had capacity to consent to marriage, he considered him incapable of dealing with the consequences of his consent in terms of his property and finances.", "57. The Court notes that, drawing on those two reports and the hearing of the applicant, the guardianship judge refused the applicant the right to marry, on the grounds that such a step was not in his interest. It further notes that the decision given on 24 June 2010 is fully reasoned and that the applicant was able to appeal against it. The judgment of the Paris Court of Appeal, which was also reasoned, was delivered following a hearing during which the applicant, who was present and accompanied by his lawyer, was able to make submissions.", "58. The Court observes that the applicant subsequently appealed on points of law, availing himself of the option of putting a “QPC” concerning the alleged infringement of the principle of freedom to marry owing to the requirement for an adult under a supervision order to seek the authorisation of the supervisor, or failing that, of the guardianship judge. In its decision of 29 June 2012, the Constitutional Council noted that Article 460 (1) of the Civil Code did not prohibit marriage but rather permitted it with the supervisor’s authorisation, the withholding of which could be brought before a court, which then had to organise adversarial proceedings. The court found that, having regard to the personal and pecuniary obligations stemming from marriage, the latter was an important civil act with which the said restrictions on freedom of marriage did not disproportionately interfere (see paragraph 20 above). The Court of Cassation, for its part, had dismissed the applicant’s appeal on points of law, firstly by citing the Constitutional Council’s decision and secondly by ruling that the Paris Court of Appeal had lawfully reasoned its decision by analysing not only the relevant medical certificates but also the other documents on file, thus enabling it to deduce that the applicant was incapable of consenting in an informed manner to his own marriage (see paragraph 21 above).", "59. Most of the violations of Article 12 of the Convention previously found by the Court concerned individuals with full legal capacity (see, in particular, F., cited above; B. and L. v. the United Kingdom, no. 36536/02, 13 September 2005; and O’Donoghue and Others v. the United Kingdom, no. 34848/07, ECHR 2010). In the Court’s view, the fact that the applicant’s right to marry had been restricted by the national authorities meant that his situation was different, and that the present case thus concerns a different hypothesis, that is, a restriction imposed on a person who lacks full legal capacity.", "60. The Court considers that both the impugned legal provisions and the refusal, in the instant case, to authorise the applicant’s marriage, fall within the margin of appreciation afforded to the respondent Government. Unlike in situations where individuals are deprived of the right to marry under any circumstances (see, for example, Christine Goodwin, cited above, § 103), the obligation placed on the applicant to request prior authorisation for his marriage had been based on the fact that he was under a legal protection order, that is to say an enhanced supervision order. Accordingly, the authorities had a margin of appreciation, enabling them to provide him with effective protection depending on the circumstances, and thus to anticipate consequences liable to be detrimental to his interests. As regards Article 460 (1) of the Civil Code, the Court notes that that provision in fact preserves the right to marry, as confirmed by the Constitutional Council. It is true that some restrictions are laid down. However, the Court observes that those restrictions are properly regulated, with remedies under which restrictions on the right to marry can be subjected to judicial review, in the framework of adversarial proceedings. That was the situation for the applicant in the present case, since he availed himself of the remedies provided in domestic law and was able to make submissions in adversarial proceedings in order to contest the impugned decision (see paragraphs 62 and 63 above). Moreover, as stated by the Constitutional Council, the supervision system is aimed at protecting the interests of the supervisee and promotes the latter’s autonomy as far as possible (decision no. 2012-260 QPC, cited above, § 5).", "61. Finally, in connection with the applicant’s argument that a person under a supervision order is free to conclude a PACS (and not marriage) (see paragraph 50 above), the Court notes, on the one hand, that the matter of concluding a PACS, which is regulated differently from marriage, is extraneous to the facts of the present case, and on the other, that at any event domestic law makes the conclusion of such a pact conditional upon the assistance of the supervisor (see paragraph 33 above).", "62. Having regard to the foregoing considerations, and in the light of the circumstances of the case and of the margin of appreciation available to the domestic authorities, the Court holds that the restrictions on the applicant’s right to marry did not limit or reduce that right in an arbitrary or disproportionate manner. There was therefore no violation of Article 12 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The applicant was born in 1978 and lives in Dällikon ( Canton of Zürich). By his own account, he is a lorry driver.", "11. On 14 March 1997 a military doctor declared him unfit for military service as he was suffering from type 1 diabetes ( diabetes mellitus ).", "12. On 22 February 1999 the applicant was also exempted from the civil protection service.", "13. On 8 September 2000 that exemption was lifted and in October that year the applicant was assigned to the Dübendorf Civil Protection Reserve in the Canton of Zürich. According to the Government, it is unclear from the file whether the applicant was given any tasks to carry out in a civil protection capacity. The applicant alleges that he volunteered on several occasions, but because of staff cutbacks in the Canton of Zürich he was never called to do any civil protection duty.", "14. On 9 August 2001 the Zürich cantonal authorities responsible for the military - service exemption tax sent him an order to pay the tax for 2000, in the amount of 716 Swiss francs (CHF) (approximately 477 euros (EUR)), based on his taxable income that year ( CHF 35,800 – approximately EUR 23, 866).", "15. In a letter of 11 September 2001, the applicant challenged the tax demand, considering that he was being discriminated against. He pointed out that he had always stated his readiness to do military service.", "16. On 20 September 2001 the federal tax authorities informed the applicant that all Swiss men who did not suffer from a “major” disability were required to pay a tax in order to be exempted from military service. They explained that a disability was considered “major” if the degree of physical or mental disability was at least 40%. They considered that further examinations were needed in order to determine whether the applicant ’ s disability met that requirement.", "17. When he examined the applicant on 14 May 2002, a doctor from the Zürich University Hospital found that in most cases the type of diabetes the applicant suffered from did not make people unfit for work.", "18. In another expert medical examination on 5 May 2003, a military doctor found the applicant ’ s physical disability to be less than 40%.", "19. By a decision of 15 July 2003, the Zürich cantonal authorities responsible for the military - service exemption tax decided, based on the findings of the medical examination and the expert examination of 14 May 2002, that the applicant did not qualify for exemption from the tax as his degree of invalidity was less than 40%. The applicant challenged that decision and the authorities confirmed it on 5 August 2003.", "20. The Federal Tax Appeals Board for the Canton of Zürich upheld that decision on 7 November 2003. It considered that in adopting the criteria set out in section 4 ( 1 ) (a) of the Federal Military - Service Exemption Tax Act of 12 June 1959 (see “Relevant domestic law and practice”, paragraph 30 below ) Parliament ’ s intention had not been to generally exempt all people with disabilities from the obligation to pay the tax in question. In the applicant ’ s case the medical examination of 14 May 2002 had shown that his disability was not a major one and that his condition was highly unlikely to be an obstacle in his future career. Thanks to medical progress, patients with the applicant ’ s type of diabetes could live quite normal lives these days and practise almost any line of work. That being so, the people concerned were not considered to have disabilities for the purposes of section 4 ( 1 ) (a) of the Federal Military - Service Exemption Tax Act. The Board further found that the applicant had failed to demonstrate that his condition, and in particular the need to administer himself four insulin injections a day, prevented him from working. Lastly, the Board did not consider that the distinction between major disabilities and other types of disability amounted, as the applicant alleged, to discrimination.", "21. On 19 December 2003 the applicant filed an administrative complaint with the Federal Court. He claimed, in particular, that he was a victim of discriminatory treatment in so far as, on the one hand, he had been required to pay the exemption tax and, on the other, he had not been allowed to do his military service even though he had always stated his readiness to do it.", "22. On 5 February 2004, when invited by the Federal Court to submit observations on the admissibility and merits of the complaint, the federal tax authorities recommended its rejection.", "23. In a judgment of 9 March 2004, the Federal Court rejected the complaint. Based on the findings of the expert examination of 14 May 2002, it held that the applicant did not have a major physical or mental disability within the meaning of section 4 ( 1 ) ( a) of the Federal Military - Service Exemption Tax Act. Accordingly, he did not qualify for exemption from the tax. The Federal Court also pointed out that although the medical examination showed that the type of diabetes the applicant had was unlikely to prevent him from holding a normal job, the particular constraints of military service nevertheless obliged the authorities to declare him unfit.", "24. The Federal Court explained that the aim of the law was to provide a system of compensation between those citizens who did their military service and those who were exempted from it for whatever reason. The tax in issue was meant to replace the effort and inconvenience of military service. As to the complaint of discrimination, the court explained that it was for reasons of equality that the law did not provide for a blanket exemption for all people with disabilities.", "25. The Federal Court considered that the cantonal authorities had merely correctly applied the law and that it was not the court ’ s role to change the law.", "26. It also held that the fact that the applicant had always declared his willingness to do military service and felt fit to do it as a professional driver did not make any difference, as the law provided for no alternative for someone in his situation but to pay the exemption tax." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Domestic law and practice", "1. The obligation to serve and the exemption tax in Swiss law", "27. Article 59 § 1 of the Federal Constitution provides the foundation for compulsory military service in Switzerland. It reads as follows :", "Article 59: Military service and substitute service", "“ 1. All men of Swiss nationality shall do military service. The law provides for substitute civilian service.", "2. Swiss women may serve in the army on a voluntary basis.", "3. All men of Swiss nationality who do not do military service or substitute civilian service shall pay a tax. The tax shall be paid to the Confederation and fixed and levied by the cantons.", "... ”", "28. Conscripts go to a training school for 18 to 21 weeks at the age of 19 or 20, followed by six or seven 19-day refresher courses staggered over several years. It is also possible to do the full 300 days ’ service in one uninterrupted stretch. Under section 42 of the Federal Army and Military Administration Act of 3 February 1995, ordinary servicemen must do 330 days ’ training. For ordinary servicemen and non-commissioned officers, military - service obligations end at the end of the year of their 30th birthday or, if they have not completed their full training time, at the end of the year during which they reach the age of 34 ( section 13 ( 2 ) ( a) of the same Act ).", "29. The Federal Military - Service Exemption Tax Act of 12 June 1959 imposes a tax on those who do not do all or part of their military service. Section 2 of the Act identifies the persons subject to the tax :", "Section 2: Persons subject to the tax", "“ The persons subject to the tax are men, resident in Switzerland or abroad, who are eligible for service and who, in the course of a calendar year ( the year in which the tax is applicable ):", "( a ) for more than six months are not incorporated into an army corps or called upon to do civilian service;", "...", "( c ) do not do the military or civilian service required of them as men eligible for service.", "The tax shall not be levied on any man who, in the course of the year in which the tax is applicable, effectively did military service, even though he was not conscripted for the whole year ... ”", "30. Section 4 of the same Act lists the categories of people who are exonerated from paying the tax :", "Section 4: Exoneration from the tax", "“ Shall be exonerated from the tax those persons who, in the course of the year in which the tax is applicable :", "( a) because of a major physical or mental disability, have a taxable income which, after deduction of the insurance benefits mentioned in section 12 ( 1 ) ( c), and of the cost of support made necessary by the disability, does not exceed by more than 100 % the minimum subsistence income for the purposes of debt recovery law;", "( a) bis are considered unfit for military service because of a major disability and receive a disability benefit or allowance from the federal disability insurance or accident insurance scheme;", "( a) ter are considered unfit for military service because of a major disability and do not receive a disability benefit or allowance, but meet one of the two minimum requirements to qualify for such an allowance;", "...", "( d) have reached the age - limit at which ordinary servicemen and non-commissioned officers, except higher - ranking non-commissioned officers, are released from their military obligations;", "...”", "31. This last provision indicates that the obligation to pay the tax lasts until the year in which the person concerned reaches the age - limit at which ordinary servicemen and certain non-commissioned officers are freed from military obligations, that is to say from the age of 19 or 20 to the end of the year of their 30th birthday ( according to the applicant, under section 13 of the Federal Army and Military Administration Act he would be subject to the tax until the age of 34; see paragraph 28 above ).", "32. Under the legislation governing direct federal taxes, the military - service exemption tax is levied on the person ’ s total net income. As a result, for a bachelor the income on which the exemption tax is based is the taxable income under the law governing direct federal taxes. The exemption tax is 2 % of that income ( but no less than CHF 200). According to the Government that method of calculating the tax has the advantage of sparing the person concerned the trouble of filling in an additional tax declaration for the exemption tax.", "33. In its earlier wording the criterion adopted in section 1 ( 1 ) of the order of 30 August 1995 on the military - service exemption tax to determine whether a disability should be considered “ major ” for the purposes of the Federal Military - Service Exemption Tax Act was the degree of disability used for disability insurance. However, in a judgment of 27 February 1998 (ATF 1 24 II 241), the Federal Court explained that the notion of “major” physical or mental of disability within the meaning of section 4 ( 1 ) (a) of the Federal Military - Service Exemption Tax Act should be understood in the medical sense, not the disability insurance sense. Ruling on the merits of the case, it held that the disability caused by amputation of the leg at the knee was a “major” disability, corresponding to 40% on the disability scale ( Appendix 3 to the order of 20 December 1982 on accident insurance ).", "34. In a judgment of 22 June 2000 ( Archiv für Schweizerisches Abgaberecht 69, p. 668), the Federal Court decided that in order to determine whether a disability was “major” for the purposes of exemption from the tax, what should be taken into consideration were the tables used by the Swiss National Insurance Fund in the event of an accident to calculate compensation for bodily harm in accordance with the federal law on accident insurance. The court also considered that the authorities could base their decision on the federal tax authorities ’ “ Instructions concerning exoneration from the tax because of a major physical, mental or psychological disability”, which were based on those tables and could be considered to have the value of a presumption of law in so far as they were sufficiently relevant to the particular case.", "2. Substitute service in Swiss law", "35. According to the parties there is no “alternative” to military service under Swiss law.", "36. Civilian service is a substitute service for people eligible for military service who cannot reconcile the obligation to do military service with their conscience. It is regulated by the Federal Civilian Service Act of 6 October 1995. The formal condition for eligibility for civilian service is fitness for military service.", "37. Article 61 of the Federal Constitution provides separate regulations governing civil protection. The obligation to do civil protection service is unrelated to the obligation to serve in the army, so military service cannot be replaced by time spent in the civil protection service. Nor is there any possibility of choosing between military service and civil protection. On the other hand, all the training and work done in civil protection can be taken into account in the calculation of the exemption tax.", "B. International law and practice", "38. The Office of the United Nations High Commissioner for Human Rights presented a report to the United Nations Economic and Social Council on best practices in relation to conscientious objection to military service, which described the wide range of substitute services available ( ECOSOC, Commission on Human Rights, Civil and Political Rights, Including the Question of Conscientious Objection to Military Service, Doc. E/CN.4/2006/51, 27 February 2006, available on the Internet). In this report the Office of the High Commissioner addressed the question of paying a tax instead of doing military service :", "“53. An issue related to conscientious objector status, or more broadly exemption from or a reduction of compulsory military service for any reason, is the payment of a special tax. Although this is not widespread, it has been reported to occur in a number of countries. Switzerland, for example, levies a tax on earned income for all male citizens who cannot perform their compulsory military service for whatever reason. Other types of taxes relating to exemption or reduction in the period of military service have been reported to occur or to have occurred in countries such as Albania, Ecuador, Georgia, Turkey and Uzbekistan. ”", "39. The non-governmental organisation Conscience and Peace Tax International, which has special consultative status with the United Nations, submitted observations to the former Commission on Human Rights of the United Nations Economic and Social Council ( ECOSOC, Commission on Human Rights, Written Statement submitted by Conscience and Peace Tax International, Doc. E/CN.4/2006/NGO/108, 18 February 2006 ), in which it stated ( p. 2 ) :", "“ ... a surprising number of States continue to accept financial contributions in lieu of military service. In Colombia, Ecuador, Bolivia and Switzerland all or most of those excused military service for whatever reason – including those who are willing but physically incapable – are required to pay a special military tax. In other countries there is legal provision that exemption ( Albania, Georgia, Mongolia ) or ( Iran, Uzbekistan ) the commutation of military service to a brief period of training may be purchased for cash ... ”", "C. Statistical data concerning reductions in the Swiss army and the exemption tax", "40. Staff reductions in the army, in particular on the occasion of the “Army 95” and “Army XXI” reforms, went hand in hand with a decrease in the length of military service. When the “Army 95” reform was introduced the age by which compulsory military service had to be completed was lowered from 50 to 42 years for most people, and that age was further lowered by the “Army XXI” reform to 30 or 34 years.", "41. For the years 2001 and 2002 79.8% of the population eligible for conscription (56,380 out of 70,634 people ) were found fit for military service. During the subsequent training school approximately 22% of those dropped out for medical reasons, so about 58% of the eligible population completed the training.", "42. In 2004 there were 27, 766 conscripts, 17, 445 (62. 8%) of whom were found fit for service; in 2005 conscripts numbered 33, 036, of whom 20, 155 (61%) were found fit for service; and in 2006 24,134 out of 37, 377 conscripts (64. 6%) were found fit for service. In 2004, 4, 457 people (that is to say 1 6 % of the people actually conscripted that year and 1 0 % of those found fit for military service) were released from the obligation to do military service while in training school for medical reasons ( the corresponding figures for 2005 were 3, 071 people or 9. 3% and 5. 7% respectively; and for 2006, 2, 668 people or 9.3% and 6% respectively ). According to statements made to the press on 6 January 2008 by Major General Lupi, Surgeon General of the Swiss Army, 34% of conscripts were declared unfit for military service during the 2007 recruitment campaign and another 6% would very probably be declared unfit for military service during or after training school ( figures taken from the Neue Zürcher Zeitung of 7 January 2008, p. 8).", "43. According to the Government, these figures show that in recent years between 52 % and 58% of conscripts completed training school.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8", "A. Admissibility", "44. The applicant claimed that he was the victim of discriminatory treatment because he was prevented from doing his military service although he was willing to serve and, instead, he was obliged to pay the exemption tax because his disability was considered a minor one by the competent authorities. This complaint must accordingly be examined under Article 14 of the Convention, which reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "45. According to the Court ’ s well-established case-law, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to the “enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not necessarily presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one of the latter provisions ( see, for example, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 71, Series A no. 94 ).", "46. The Court has said on many occasions that Article 14 comes into play whenever “the subject matter of the disadvantage ... constitutes one of the modalities of the exercise of a right guaranteed” (see National Union of Belgian Police v. Belgium, 27 October 1975, § 45, Series A no. 19 ), or the measures complained of are “linked to the exercise of a right guaranteed” (see Schmidt and Dahlström v. Sweden, 6 February 1976, § 39, Series A no. 21 ).", "47. In that connection, the Court is aware that the applicant, who was not represented by counsel before the domestic authorities, did not explicitly rely on any other substantive provision of the Convention or its Protocols.", "48. However, since it is master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I ), the Court considers it appropriate to examine whether the military - service exemption tax falls within the ambit of Article 8 of the Convention, which reads as follows :", "“ 1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "1. The parties ’ submissions on the admissibility of the case", "49. The Government argued that the applicant suffered not from a disability but from an illness. His health was not seriously affected and his personal development and physical and mental integrity had not been impaired by the measure in issue, namely the payment of the exemption tax. The Government admitted, on the other hand, that his medical condition should not be underestimated and that it required permanent supervision and regular therapeutic measures, such as insulin injections several times a day. However, the purely financial disadvantage suffered, which in this case had been tailored to his financial means, had not adversely affected the applicant ’ s private life. In fact, there was no direct link between the measure concerned and the applicant ’ s private life. The Government accordingly submitted that Article 8 was not applicable and that the application should be rejected as incompatible ratione materiae with the Convention, as Article 14 had no independent existence and could not be taken into account.", "50. Furthermore, the Government considered that the applicant had not raised the question of health-based discrimination contrary to Article 14 taken in conjunction with Article 8 before the domestic courts, or even before the Court. In particular, he had not demonstrated to what extent his private life had been affected by the impugned decision. Nor had he shown how he had been discriminated against in his private life as a result of it. The Government accordingly considered that the applicant had not exhausted the domestic remedies in respect of his complaint under Article 14 of the Convention taken in conjunction with Article 8.", "51. The applicant maintained that the Government themselves had admitted that his health was affected. He found it incomprehensible, even contradictory, that the Government should arrive at the conclusion that such an illness would have no impact on his personal development and physical integrity. However, in spite of his illness, which allegedly made him unfit for military or civilian service, the applicant had had to pay the military - service exemption tax. In this way Swiss law sought to benefit from a medical condition for which the applicant was not responsible. In his view such a measure clearly interfered with his private and family life. That being so, the applicant considered that Article 14 should be taken into account.", "2. The Court ’ s assessment", "52. The Court reiterates that the concept of “private life” is a broad term not susceptible to exhaustive definition ( see, for example, Hadri-Vionnet v. Switzerland, no. 55525/00, § 51, 14 February 2008, and Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III ). On several occasions the Court has admitted that private life covers the physical integrity of the person ( see, among other authorities, Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247 ‑ C, and X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91 ).", "53. The Court also reiterates that the Convention and its Protocols must be interpreted in the light of present-day conditions ( see Marckx v. Belgium, 13 June 1979, § 41, Series A no. 31, and many subsequent cases, such as Vo v. France [GC], no 53924/00, § 82, ECHR 2004 - VIII, and Emonet and Others v. Switzerland, no. 39051/03, § 66, 13 December 2007 ). It notes that the present case concerns possible discrimination against a person with a physical disability, even though it is only considered a minor disability by the domestic authorities. It also considers that there is a European and worldwide consensus on the need to protect people with disabilities from discriminatory treatment ( see, for example, Recommendation 1592 (2003) towards full social inclusion of people with disabilities, adopted by the Parliamentary Assembly of the Council of Europe on 29 January 2003, or the United Nations Convention on the Rights of Persons with Disabilities, which entered into force on 3 May 2008).", "54. The Court considers that a tax collected by the State which has its origin, as in the present case, in unfitness to serve in the army for health reasons – that is, a factor outside the person ’ s control – clearly falls within the scope of Article 8 of the Convention, even if the consequences of the measure are above all pecuniary ( for cases concerning the “family” aspect of Article 8, see, for example, mutatis mutandis, Marckx, cited above, § 31; Pla and Puncernau v. Andorra, no. 69498/01, § 55, ECHR 2004 ‑ VIII; Petrovic v. Austria, 27 March 1998, § 29, Reports 1998 ‑ II; and Merger and Cros v. France, no. 68864/01, § 46, 22 December 2004; in this last case the Court declared that “ family life ” did not include only social, moral or cultural relations, but also comprised interests of a material kind ).", "55. In addition, the Court reiterated the principle that the complaint to be submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits ( see Ankerl v. Switzerland, 23 October 1996, § 34, Reports 1996 ‑ V ). In the instant case it considers that the applicant did raise the substance of the complaint of a violation of Article 14 taken in conjunction with Article 8 before the domestic authorities when he affirmed that he had been required to pay the exemption tax and prevented from doing his military service even though he had always maintained that he was willing to do it. He had thus exhausted the domestic remedies.", "56. The Court notes that the complaint under Article 14 of the Convention taken in conjunction with Article 8 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "( a) The Government", "57. The Government pointed out that the competent authorities had considered that it would have been objectively dangerous and irresponsible to declare the applicant fit for military service. That decision had been reached based on his illness and the special constraints linked to military service, including limited access to health care and medicines, strong physical exertion and considerable psychological pressure.", "58. They also explained that the possibility of doing civilian service instead was restricted solely to those who objected to military service on grounds of conscience.", "59. Furthermore, the Government were convinced that the Federal Military - Service Exemption Tax Act pursued a legitimate aim, which was to restore a degree of equality between those who actually did military or civilian service and those who, for whatever reason, were exempt. The tax was meant to make up for the efforts and obligations which those exempt from serving were spared.", "60. In so far as the applicant argued that the distinction made between people with different degrees of disability was discriminatory, the Government pointed out that the legislation was framed so as to avoid exonerating everyone unfit for military service because of a disability from paying the tax, and to limit such exoneration to those persons mentioned in section 4 of the Federal Military - Service Exemption Tax Act. Paragraph 1 ( a) of section 4 laid down three conditions for a person unfit for military service as a result of a disability to be exonerated from the tax: a “major” disability; income that did not exceed the minimum subsistence income; and a causal link between that income and the disability. The provision thus took into account the degree of physical or mental disability of the person concerned as well as their financial situation. A general exemption from the tax for all people with disabilities, of the type referred to by the applicant, would deny the very nature of the tax and would be incompatible with the principle of equal treatment.", "61. With regard to physical disabilities, the Federal Court found, in keeping with legal opinion in Switzerland, that the prohibition of discrimination should be limited to people with disabilities of a certain gravity. The deciding factor was the risk of stigmatisation, denigration and social exclusion because of the disability. According to the Government the Federal Military - Service Exemption Tax Act made distinctions based on these principles. The obligation to pay the exemption tax did not apply to people with major disabilities, that is, precisely those people who ran a risk of stigmatisation. In the Government ’ s opinion the applicant ran no such risk as he was only slightly inconvenienced in his everyday life. In the normal course of things his disability was not even noticeable and there was no reason why anyone but a limited circle of people should have known about it. The exemption tax did not change that, as no-one but the person concerned knew about it. For people with more severe disabilities, on the other hand, especially clearly visible disabilities, special arrangements were justified, and exonerating them from paying the tax was a means of not adding to the exclusion they suffered.", "62. Accordingly, the distinction made between people unfit for military service whose disability had only limited repercussions on their working lives and those for whom it had more serious repercussions could not be said to be discriminatory. On the contrary, it was based on objective and reasonable considerations.", "63. As regards the instant case, the Government pointed out that the applicant suffered from type 1 diabetes. The table used by the Swiss National Insurance Fund in the event of an accident did not settle the question of whether this disease should be considered as a major disability within the meaning of section 4 ( 1 ) ( a) of the Federal Military - Service Exemption Tax Act. Based on the medical certificate drawn up by a diabetes specialist from Zürich University Hospital on 14 May 2002, the federal tax authorities rated the applicant ’ s disability at less than 40%. This meant that it could not be considered as a major disability for the purposes of the Act in question in so far as, although it made him unfit for military service, it did not prevent him from working in various other capacities.", "64. In short, the Government considered that the Swiss legislation was designed to treat different situations differently. The distinctions made in the law were based on objective and reasonable considerations. In this particular case the Swiss authorities had correctly applied the law and could not, in the Government ’ s submission, be considered to have violated Article 14 of the Convention. On the contrary, they argued, discrimination much more serious than that which the applicant complained of would have resulted had he been exempted from paying the tax. It was true that a possible discrimination between people based on the seriousness of their disability would be eliminated, but the result would be that whatever the reason for exempting people from military service, and in particular where they were found to be unfit, they would be under no obligation to pay the exemption tax. This in turn would amount to discrimination against all those people who did do their compulsory military service.", "( b) The applicant", "65. The applicant disagreed with the Government. He argued that a person with a slight disability could conceivably do civilian service instead, which was less physically and psychologically demanding than military service. It was discriminatory, he alleged, to allow conscientious objectors to do substitute service but not people declared unfit for military service because of a disability. In the circumstances, the applicant considered that he had in fact been penalised – as he had suffered a financial loss – when in fact he had been prevented against his will from doing his military service and had not been allowed to do civilian service instead. In his opinion there was no valid justification for such discrimination against people suffering from minor disabilities compared with people who were allowed to freely choose, such as conscientious objectors.", "66. The applicant considered it unfair that people with disabilities should be treated differently depending on the level of disability, especially when the person concerned was willing to do substitute service, which would have entitled him to an allowance for loss of income. Furthermore, and contrary to what the Government had submitted, the army had not considered his disability to be a minor one, otherwise he would have been declared fit for service, with certain restrictions for example, or they would have assigned him to a unit less exposed to physical effort.", "67. According to the applicant the Government had also failed to demonstrate that the 40 % disability rate used to distinguish between people liable to pay the tax and those who were exempt was justified and not discriminatory. The applicant considered that neither the law nor the case-law provided clear guidance. The decision not to exonerate him from paying the exemption tax was based on the fact that his disability was less than 40%. That percentage was based on a single previous case concerning a person who had lost a leg – hardly a situation comparable to his own. It was therefore a discriminatory decision.", "68. According to the applicant the discrimination against people with minor disabilities could not be justified : it was neither fair nor in the public interest. On the contrary, it was in the public interest for these people to be included as much as possible in normal life and not burdened with heavy, unfair financial charges.", "69. The applicant added that the problems mentioned were further aggravated and appeared all the more disproportionate because people with disabilities did not usually have very high incomes and the exemption tax was not a progressive tax.", "70. Lastly, he pointed out that over the previous fifteen years the Swiss army had considerably reduced its numbers, by more than 50% compared with 1989. A corollary of that decrease in numbers was that an increasing number of men were being declared unfit for service. It was all too tempting, he argued, to declare men with minor disabilities unfit for service and make them pay the exemption tax.", "2. The Court ’ s assessment", "( a) Applicable principles", "71. The Court reiterates that Article 14 of the Convention affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, not every difference in treatment will amount to a violation of this Article. Instead, it must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment, and that this distinction is discriminatory ( see, for example, National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 88, Reports 1997 ‑ VII, and Zarb Adami v. Malta, no. 17209/02, § 71, ECHR 2006 -VIII ).", "72. According to the Court ’ s case-law a difference of treatment is discriminatory within the meaning of Article 14 if it has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim and the effects of the measure concerned and the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down by the Convention must not only pursue a legitimate aim: Article 14 will also be violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised ( see, for example, Zarb Adami, cited above, § 72; Stec and Others v. the United Kingdom [GC], no. 65731/01, § 51, ECHR 2006-VI; Petrovic, cited above, § 30; and Lithgow and Others v. the United Kingdom, 8 July 1986, § 177, Series A no. 102 ).", "73. In other words, the notion of discrimination includes, in general, cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention ( see Abdulaziz, Cabales and Balkandali, cited above, § 82). Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention (see, among other authorities, G.M.B. and K.M. v. Switzerland (dec.), no. 36797/97, 27 September 2001, and Zarb Adami, cited above, § 73).", "74. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and the background ( see Fretté v. France, no. 36515/97, § 40, ECHR 2002 ‑ I; Stec and Others, cited above, § 52; Rasmussen v. Denmark, 28 November 1984, § 40, Series A no. 87; and Inze v. Austria, 28 October 1987, § 41, Series A no. 126 ).", "75. Since the Convention is first and foremost a system for the protection of human rights, the Court must, however, have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved. One of the relevant factors in determining the scope of the margin of appreciation left to the authorities may be the existence or non-existence of common ground between the laws of the Contracting States ( see Rasmussen, cited above, § 40, and, mutatis mutandis, The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 59, Series A no. 30 ).", "76. The Convention and its Protocols must be interpreted in the light of present-day conditions ( see Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26; Airey v. Ireland, 9 October 1979, § 26, Series A no. 32; and Vo, cited above, § 82). Lastly, the Court reiterates the principle, well established in its case-law, that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective ( see, for example, Artico v. Italy, 13 May 1980, § 33, Series A no. 37 ).", "( b) Application of these principles to the present case", "( i ) Whether there was a difference of treatment between people in comparable situations", "77. The applicant complained that, having been considered, under the legislation in force and the case-law of the Federal Court, as having a minor disability, he was obliged, unlike people with more serious disabilities, to pay the military - service exemption tax, even though he had always expressed his willingness to do military service.", "78. He also felt that he had been treated in a discriminatory manner in so far as the substitute civilian service provided for under Swiss law, which would have exempted him from paying the tax, was open only to conscientious objectors.", "79. The Court reiterates that the applicant did not do his military service because he was declared unfit by the competent military doctor. As a result, he was required to pay the exemption tax, like everyone else in the same situation, except for those with a major disability and those who did the substitute civilian service instead. However, only conscientious objectors could opt for civilian instead of military service. This is the situation the applicant complained of in the present application.", "80. The Court considers that this case presents a dual example of differential treatment of people in comparable situations. As the list of grounds of distinction given in Article 14 is not exhaustive ( “ or other status”; see Stec and Others, cited above, § 50), there is no doubt that the scope of this provision includes discrimination based on disability. It remains to be seen whether the reasons for the difference of treatment were objective and reasonable.", "( ii ) Whether there was objective and reasonable justification", "( α ) Objective justification", "81. According to the Government the distinction pursued a legitimate aim, which was to re-establish a sort of equality between people who actually did military or civilian service and those who were exempted from it. The tax in question was meant to replace the efforts and obligations from which people exempted from serving were dispensed. The applicant disagreed.", "82. The Court takes note of the aim of Swiss law to establish a form of equality between people who do their military or civilian service and those who are exempted from it. It must therefore consider whether there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. For this the Court must examine whether the Swiss authorities and courts struck a fair balance between the protection of the interests of the community and respect for the applicant ’ s rights and freedoms safeguarded by the Convention.", "( β) Reasonable justification", "The margin of appreciation afforded to the authorities", "83. The Court observes that Switzerland collects a tax from all male citizens who are unable, for any reason, to do their compulsory military service and do not do the substitute civilian service instead, with the exception of those with a severe disability. While aware that this fact alone is not decisive for its examination of the complaint under Article 14 of the Convention, the Court notes that this type of tax, imposed even on men unfit for military service because of a physical disability, does not seem to exist in other countries, at least in Europe ( see paragraph 53 of the report of the United Nations High Commissioner for Human Rights, and the observations of the non-governmental organisation Conscience and Peace Tax International to the former Commission on Human Rights of the United Nations Economic and Social Council, paragraphs 3 8 and 3 9 above ).", "84. The Court also considers that obliging the applicant to pay the disputed tax after denying him the opportunity to do his military (or civilian ) service might prove to be in contradiction with the need to prevent discrimination against people with disabilities and foster their full participation and integration in society. That being so, the margin of appreciation the States enjoy in establishing different legal treatment for people with disabilities is considerably reduced.", "The interests in issue", "The public interests of the respondent State", "85. The Court then has to weigh up the interests in issue. First of all, as regards the legitimate interest of the Government in collecting an exemption tax, the Court notes at the outset that the only reason advanced by the Government for the legislation concerned is to maintain a certain equality between people who do their military or civilian service and those who are exempt. In the instant case, however, the person concerned was declared unfit for service by the authorities even though he had always expressed his willingness to serve. In such a situation the Court is not convinced that it is in the interest of the community to oblige the man to pay a tax to compensate for not having done his military service. The Court does not consider that the financial contribution in question in this case serves any important compensatory purpose ( see, mutatis mutandis, Karlheinz Schmidt v. Germany, 18 July 1994, § 28, Series A no. 291 ‑ B ).", "86. In view, inter alia, of the staff reductions in the Swiss army in recent years ( see paragraph 40 above; see also, for example, the Federal Council ’ s report of 7 June 1999 to the Federal Assembly on Switzerland ’ s security policy, pp. 58 and 70), the Court also considers that the tax has no major deterrent role to play either. Clearly it does not serve to ensure that a sufficient number of people do their military service, as at the material time there were plenty of people ready and able to do military service. The Court also observes the recent tendency for European States to do away with conscription altogether in favour of regular armies ( for example, Spain (2002), Portugal (2004), Hungary and the Czech Republic (2005), Bosnia and Herzegovina and Slovakia (2006), and Romania, Italy and Latvia (2007) ). The need to guarantee the country ’ s defence and security by means of the tax is therefore not really established.", "87. On the other hand, in the light of the figures supplied by the parties ( see paragraphs 41-43 above ), it appears that over 40 % of all men were eventually declared unfit for military service in recent years. According to the information in the Court ’ s possession, the percentage of people receiving disability benefits was small at the relevant time and a large majority of those persons declared unfit for service were obliged to pay the exemption tax. The Court accordingly considers it likely that the revenue generated by the exemption tax is not negligible.", "The applicant ’ s personal interest", "88. The Government suggested that the tax did not place a substantial financial burden on people with less than 40% disability.", "89. The Court observes that the exemption tax the applicant was required to pay for the year 2000 amounted to CHF 716 ( approximately EUR 477 ). While it is true that this sum represents only 2% of the applicant ’ s salary, it cannot be said to be insignificant considering the relatively modest level of his taxable income. Furthermore, it must be borne in mind that the tax in question is levied every year, for as long as the military obligations last, that is to say, from the person ’ s 20th to the end of their 30th or even their 34th year (see paragraphs 28 and 31 above ). That being so, the Court cannot consider the financial incidence of the tax on the applicant to be merely symbolic.", "How the authorities assessed the applicant ’ s disability level and the amount of the exemption tax", "90. The other factor to be taken into account is the applicant ’ s disability, which led the competent authorities to declare him unfit for military service. In calculating the tax to be paid, Swiss law takes into account the degree of disability, exempting those persons who suffer from major disabilities. The Federal Court has defined the meaning of a “major” disability. In a 1998 judgment it ruled that it should be understood in the medical sense, not the disability insurance sense. It held that the disability caused by amputation of the leg at the knee was a “major” disability, corresponding to 40% on the disability scale ( see paragraph 33 above ). In a judgment of 2000, the Federal Court decided that what should be taken into consideration were the tables used by the Swiss National Insurance Fund, in the event of an accident, to calculate compensation for bodily harm in accordance with the federal law on accident insurance. According to the Government, the intention behind section 4 ( 1 ) (a) of the Federal Military - Service Exemption Tax Act was apparently not to generally exempt people with minor disabilities – and therefore capable of working and earning a normal salary – from the obligation to pay the tax.", "91. The Court is well aware that it is in the first place for the national authorities, notably the courts, to interpret and apply the domestic law ( see Winterwerp v. the Netherlands, 24 October 1979, § 46, Series A no. 33 ). It nevertheless considers that the manner in which the relevant domestic authorities proceeded in the present case was questionable. First of all they simply compared the applicant ’ s illness – which did not prevent him from working – with the case of a person whose leg had been amputated following an accident, and concluded that his disability was a minor one because it did not attain the 40% threshold. In the Court ’ s opinion, in taking only one criterion into consideration, based on a precedent which scarcely bore comparison, the Swiss authorities failed to give sufficient consideration to the applicant ’ s individual situation.", "92. The second, subsidiary, criterion in section 4 ( 1 ) (a) of the Federal Military - Service Exemption Tax Act is the applicant ’ s income. Once his disability had been declared to be a minor disability, the applicant had no possibility of challenging the presumption – based on that provision and on the above- mentioned case-law of the Federal Court – that a person with only a minor disability was not placed at a disadvantage in the working world. In other words, the applicant could not claim that his income was relatively modest and that, accordingly, the obligation to pay the exemption tax was disproportionate in his case.", "93. Lastly, the Court notes the lack of any possibility of exemption from the tax in issue for those whose disability was considered to be less than 40% but who, like the applicant, had a relatively modest salary. On the contrary, the law fixed a minimum payment of CHF 200 per year ( see paragraph 32 above ). As a result, even people whose annual income was not high enough for them to pay income tax were not exempted from paying the tax in issue here.", "The lack of alternatives to the tax", "94. The Court considers that in order for a measure to be considered proportionate and necessary in a democratic society, there must be no other means of achieving the same end that would interfere less seriously with the fundamental right concerned. In this regard the Court notes that the applicant always expressed his willingness to do his military service but that he was declared unfit for service by the military doctor. According to the Government, that finding was based on the fact that he had to give himself an insulin injection four times a day. The Court is fully aware that where the organisation and operational effectiveness of the armed forces are concerned the States enjoy a certain margin of appreciation (see, mutatis mutandis, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 89, ECHR 1999 ‑ VI). It nevertheless wonders what prevented the authorities from setting in place special forms of service for people in a situation comparable to that of the applicant. For example, activities which, although carried out within the armed forces, required less physical effort and could therefore be performed by people like the applicant. In certain States the law provides for alternative forms of military service, in the armed forces, for people with partial disabilities. In practice these people are recruited to posts suited to their degree of disability and their occupational skills.", "95. It is not in dispute that the applicant was also willing to do the substitute civilian service instead of military service. Under Swiss law, however, that option is open only to conscientious objectors, based on the idea that civilian service requires the same physical and mental qualities as military service. The Court cannot accept that argument. It is true that in a large majority of the States substitute service is open only to conscientious objectors, as it is in Switzerland ( for the Swedish approach, which appears to be an exception, see paragraph 34 of the report by the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe entitled “ Exercise of the right of conscientious objection to military service in Council of Europe member States ”, 4 May 2001, Doc. 8809 revised, available on the Internet). The Court is convinced, however, that special forms of civilian service tailored to the needs of people in the applicant ’ s situation are perfectly envisageable ( for the wide range of substitute services outside the armed forces open to conscientious objectors, see, mutatis mutandis, paragraph 35 of the above-mentioned Parliamentary Assembly report, and paragraphs 43-46 of the report of the Office of the United Nations High Commissioner for Human Rights, mentioned in paragraph 38 above ).", "Conclusion", "96. In conclusion, the Court considers that in the present case the domestic authorities failed to strike a fair balance between the protection of the interests of the community and respect for the Convention rights and freedoms of the applicant, who was not allowed to do his military service, or civilian service instead, but was nevertheless required to pay the exemption tax. It takes into account the particular circumstances of the case, including : the amount payable – which was not a negligible sum for the applicant – and the number of years over which it was charged; the fact that the applicant was willing to do military or civilian service; the lack of provision under Swiss law for forms of service suitable for people in the applicant ’ s situation, and the minor role the tax plays nowadays in terms of preventing or compensating for the avoidance of compulsory national service.", "97. In the light of the aim and the effects of the tax in question, the objective reasons given to justify the distinction made by the domestic authorities, notably between people declared unfit for service and exonerated from paying the tax and those declared unfit for service but nevertheless obliged to pay it, do not appear reasonable in relation to the principles which normally prevail in democratic societies.", "98. That being so, the applicant has been the victim of discriminatory treatment and there has been a violation of Article 14 of the Convention taken in conjunction with Article 8.", "II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION", "99. Relying on Article 7 of the Convention, the applicant alleged that that the decision of the Swiss authorities to set the degree of disability required for exoneration from the military - service exemption tax at 40% had no basis in law.", "100. The Court considers that the impugned decision does not fall within the scope of that provision ratione materiae, in so far as no “ penalty ” within the meaning of Article 7 § 1 of the Convention was imposed on the applicant (see, for example, Welch v. the United Kingdom, 9 February 1995, §§ 26-36, Series A no. 307 ‑ A, and Jamil v. France, 8 June 1995, §§ 26-33, Series A no. 317 ‑ B ).", "101. It follows that this complaint must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "102. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "103. The Court notes that the applicant submitted no claim in respect of pecuniary or non-pecuniary damage.", "B. Costs and expenses", "104. The applicant ’ s counsel claimed a total of 12,256.70 Swiss francs (CHF) (approximately 8,171 euros (EUR) ) for the costs and expenses incurred before the Court.", "105. The Government pointed out that the applicant had been represented by counsel only at an advanced stage of the proceedings, and that the proceedings had raised no particularly complex legal issues. They accordingly considered that an award of CHF 2,000 (approximately EUR 1,333) for costs and expenses would be fair.", "106. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4, 5 00 for the proceedings before the Court.", "107. Consequently, after deduction of the sum of EUR 850 which he has already received in legal aid for the proceedings before it, the Court awards the applicant the sum of EUR 3,650 for costs and expenses, plus any tax that may be chargeable to the applicant on that amount.", "C. Default interest", "108. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1989 and lives in Istanbul.", "6. On 15 June 2004 she applied to take part in the entrance competition for the Turkish National Music Academy attached to İstanbul Technical University (“ the Music Academy ” ) for the 2004-2005 academic year.", "7. On 21 and 31 August 2004 she took the practical selection tests performing on the bağlama [1].", "8. On 7 September 2004 the music section of the Academy administration published a list of successful candidates in the entrance examination, which included the applicant.", "9. The applicant immediately applied to a medical board at Büyükçekmece Public Hospital for a medical report certifying her fitness to study at the Music Academy.", "10. On 9 September 2004 that medical board drew up a report stating that the applicant had been diagnosed with hypermetropia with nystagmus and severe bilateral amblyopia. The Board concluded that the applicant should be referred to a higher medical authority.", "11. On 16 September 2004 a medical board at the Bakɪrköy Research and Training Hospital ( “ Bakɪrköy Hospital ” ) prepared a medical report finding that the applicant could receive education and instruction in the sections of the Music Academy where eyesight was unecessary.", "12. On the same day the Director of the Music Academy sent a letter to the applicant stating the following :", "“ As we have explained on several occasions to your mother, your father and yourself, since you have failed to provide a report from a fully equipped public hospital ( tam teşekküllü devlet hastanesi [2] ) confirming that you can study at the Music Academy ... we have been unable to enrol you ... We look forward to receiving your report from a public hospital mentioning your admission to the Music Academy as a student as soon as possible ... ”", "13. On 20 September 2004 the applicant ’ s father wrote to the Director of the Music Academy to inform him that the medical report had been forwarded to the Music Academy that same day, as requested.", "14. Also on the same day, the Director of the Music Academy wrote to the Chief Medical Officer of Bakɪrköy Hospital. Referring to the report issued by that hospital ’ s Medical Board on 16 September 2004, he informed the Chief Medical Officer that none of the seven sections of the Music Academy could be deemed not to require eyesight. The letter stated that in order to be able to be educated in any section of the Academy, a student had to submit a medical report stating that he or she was fit for the task. The Director of the Music Academy asked the Chief Medical Officer to prepare a fresh medical report taking account of the fact that no section of the Music Academy could be considered as not necessitating eyesight, and accordingly to specify whether or not the applicant was capable of being educated in the Music Academy.", "15. On an unspecified date the Music Academy rejected the applicant ’ s request for enrolment.", "16. On 24 September 2004 the applicant ’ s parents, acting in her name and on her behalf, lodged with Istanbul Administrative Court ( “the Administrative Court” ) an action against the administration of Istanbul Technical University to set aside the Music Academy ’ s decision not to enrol their daughter. That action was accompanied by a request for a stay of execution of the impugned decision. In his pleadings, counsel for the applicant argued that his client had passed the entrance examination to the Music Academy on 21 August 2004, appearing before a panel of eight teachers, and that on 31 August 2004 she had passed the final entrance competition with full marks, appearing before a panel of twenty teachers. Quoting the criteria for admission to the Music Academy, that is to say being under the age of fifteen, holding a certificate of primary education, having the requisite physical abilities for playing the chosen instrument in respect of which enrolment has been requested, not having a physical disability such as to prevent her from receiving an education in the chosen section, and passing the talent and technical standard competition. Counsel for the applicant submitted that she had satisfied all those criteria. Her enrolment in the Music Academy had been refused on the sole ground that she was blind, which was contrary to law and the equality principle. In support of her application, counsel for the applicant relied on Article 42 of the Constitution, Articles 4, 7, 8 and 27 of Basic Law No. 1739 on national education ( “ Act No. 1739 ” ) and Article 9 of Legislative Decree No. 573 on specialised education. He also cited the names of former blind students who had graduated from the same Music Academy.", "17. In a statement of defence of 12 October 2004 the administration of Istanbul Technical University submitted that when filing her application for enrolment the applicant ’ s father had provided no document referring to her blindness. It contended that he had concealed that fact, had behaved as if his child were disability-free and had therefore attempted to deceive the enrolment office. It stated that Article 4 of the principles governing admissions and enrolment in the Music Academy set out the “ no disability ” criterion. Furthermore, the applicant had failed to provide a medical report certifying that she could study at the Music Academy, which requirement applied to all applicants for admission. The statement therefore affirmed that the refusal to enrol the applicant had not been due to her blindness but stemmed from her failure to submit all the requisite documents for her enrolment, within the stipulated time-limit. It added that even though the medical report submitted by the applicant had stated that she could study in the sections of the Academy where eyesight was unnecessary, there were in fact no such sections. Finally, it pointed out that in the absence of appropriate facilities and teaching staff with the requisite expertise, the Music Academy was not in a position to provide education for blind students, or indeed for persons with any kind of disability. In that connection it explained that in 1976, when it had opened, the Music Academy had hoped to introduce facilities for teaching blind students, but the lack of teachers with a command of braille had forced it to abandon those efforts.", "18. On 14 October 2004 the Administrative Court dismissed the request for a stay of execution of the decision on the grounds that the conditions set out in section 27 § 2 of Act No. 2577 on Administrative Procedure ( “ Act No. 2577 ” ) as amended by Act No. 4001 had not been met.", "19. On 26 October 2004, acting in her name and on her behalf, the applicant ’ s parents appealed against that decision to the Istanbul Regional Administrative Court. They argued that pursuant to section 27 § 2 of Act No. 2577, there had been two preconditions for obtaining a stay of execution : the existence of damage which was irreparable or difficult to repair, and the apparent unlawfulness of the administrative Act in question. The parents stated that under the circumstances of the present case it was obvious that the refusal to enrol their daughter in the Music Academy would cause her damage which would be difficult to repair. They also submitted that such refusal was unlawful. Their memorial pointed out that the applicant held a primary school certificate and, apart from her blindness, had all the requisite physical capacities for playing the bağlama. Furthermore, she had passed the entrance examination for the Music Academy, and a medical report had established that she had no disability such as to prevent her from receiving education in the music department. They submitted that the merits of that medical report could not be contested, that other students had provided medical reports from institutions similar to that which had drawn up the applicant ’ s report, and that the Music Academy had accepted those reports. In their view, the fact that the report had not specifically mentioned that the applicant could study at the Academy could not invalidate it. Moreover, they argued that the respondent administration ’ s argument that the medical report had not been submitted in time was fallacious, as that report had been submitted to the Music Academy on Monday 20 September 2004, that is to say on the first working day after receipt of the letter from the Academy requesting the report. The parents further affirmed that the applicant had met all the conditions for enrolment and submitted the requested documents within the stipulated time- limits. The only reason for the refusal of enrolment had been her blindness. In reply to the respondent administration ’ s plea that the Music Academy had no sections where eyesight was not required, the applicant ’ s parents provided the names of four blind graduates of the Music Academy. Those former students had asserted that blindness was no obstacle to playing a musical instrument, that there were many blind musicians and that the Music Academy ’ s argument that none of the teachers knew braille was invalid in the light of advanced technology and computer systems capable of converting braille. Finally, the applicant ’ s parents submitted that the impugned measure was contrary to the constitutional principle of equality and all the relevant international legal instruments.", "20. On 28 October 2004 the Istanbul Regional Court Administrative dismissed that appeal on the grounds that the conditions for a stay of execution set out in section 27 § 2 of Act No. 2577 had not been fulfilled since the execution of the impugned decision was not such as to cause damage which was irreparable or difficult to repair and was not unlawful.", "21. On 29 November 2004 the Chief Medical Officer of Bakɪrköy Hospital wrote to the administration of the Music Academy to inform it that the medical report du 16 September 2004 had been revised. The original sentence “ can receive education and instruction in the sections of the Music Academy where eyesight is unnecessary” had been replaced by : “ cannot receive education or instruction ”.", "22. On 11 March 2005, acting in the applicant ’ s name and on her behalf, her parents submitted a complaint to the Bakɪrköy State Prosecutor against the Bakɪrköy Research and Training Hospital, its Chief Medical Officer and the other doctors who had amended the medical report of 16 September 2004, accusing them of abuse of office. They argued that the doctors had amended the medical report arbitrarily, without examining their daughter. They affirmed that the purpose of the amendments had been to ensure that the proceedings against the administration of Istanbul University concluded in the latter ’ s favour.", "23. On the same day they applied to the Istanbul Medical Association for an inquiry into the events in question.", "24. On 23 May 2005 the Health Department attached to the Istanbul Governor ’ s Office adopted a decision refusing to authorise the prosecution of the Chief Medical Officer in question. That decision mentioned that the findings of the report had been amended at the request of the administration of the Music Academy and that there had been no wrongdoing or abuse of office.", "25. On 4 July 2005 the applicant ’ s parents, acting in her name and on her behalf, appealed to the Istanbul Regional Administrative Court to set aside that decision and authorise proceedings against the Chief Medical Officer in question. That appeal was unsuccessful.", "26. On 18 July 2005 they lodged an appeal with the Istanbul Court Administrative requesting the setting aside of the decision not to enrol the applicant. They relied on section 15 of Act No. 5378 of 1 July 2005 on persons with disabilities ( “ Act No. 5378 ” ), which had, in their view, put an end to all forms of discrimination in the educational sphere.", "27. On 14 October 2005 the Administrative Court dismissed the applicant ’ s appeal. The relevant sections of the court ’ s reasoning read as follows:", "“ ...", "The principles governing entrance competitions and enrolments at the Turkish National Music Academy attached to Istanbul University were adopted by the University Senate ... at the request of the section assembly, after having been debated in the Music Academy assembly and deemed lawful by the University ’ s Educational Board. ... Those principles include the condition that applicants who have passed the competition for enrolment in the Music Academy should not suffer from any physical disability impeding education in the section [ to which they have been admitted ]. Furthermore, that condition is mentioned on the form distributed to applicants listing the documents required for final enrolment. The submission of a report drawn up by a fully equipped hospital and stating ‘ is capable of studying at the Music Academy ’ is mandatory.", "It transpired from the assessment of the application that [ the applicant ] passed the entrance examination and secured the right to be enrolled. However, whereas the report prepared by Büyükçekmece Public Hospital had concluded that a report should be requested from a higher medical board, she requested a report from an equivalent medical board, namely Bakɪrköy Research and Training Hospital. It transpires from the defence of the respondent administration that in the 1970 s, when the Music Academy was set up, it had enrolled a number of blind students on a trial basis, but, in the absence of teaching staff conversant with the braille alphabet and having regard to the various difficulties encountered, that experiment was discontinued. No further blind students were admitted. It has been established that the administration wrote to the Chief Medical Officer of Bakɪrköy Hospital requesting information on the interpretation of the medical report which it had issued and that the conclusions of that report had subsequently been amended. The respondent administration ’ s decision to refuse to enrol the applicant was not unlawful as she had been unable to provide a report drawn up by a fully equipped public hospital and stating that she was capable of studying at the Music Academy. The applicant ’ s allegations to the contrary are ill-founded ... ”", "28. The Administrative Court adopted that decision on a majority vote, contrary to the recommendation of the President of the court, who adopted a dissenting opinion stating, with reference to Article 42 of the Constitution and Act No. 1739, that no one could be deprived of his or her right to education and instruction. In his view, it was beyond doubt that it was incumbent on government departments to put in place an environment conducive to education and instruction and meeting the needs of blind persons. Referring to the defence put forward by the respondent administration, which had attempted to incorporate blind students in 1976, he noted that it had been possible at the time to provide blind persons with musical education. He emphasised that there were many famous blind musicians. To deprive individuals of their right to education was incompatible with a social and democratic State governed by the rule of law. He consequently held that the impugned administrative measure had been unlawful.", "29. On 9 November 2005 the Governing Board of the Istanbul Medical Association wrote a letter to the applicant ’ s father in reply to his request of 11 March 2005 (see paragraph 23 above). The relevant parts of the letter read as follows :", "“ 1. The two reports covered by the inquiry are similar in content.", "2. However, the hospital administration ’ s failure to defend the initial report and its decision to make the requested amendments, on the instructions of the administration of the Music Academy ... cannot be considered as an appropriate attitude.", "3. The letter of 22.10.2004 ( no. 5821 ) sent by the administration of the Music Academy ... to the Chief Medical Officer of the hospital ... states that ‘ inasmuch, moreover, as the teaching administered in those sections is intended for sighted students, we have no suitable educational environment for blind students ( in terms of resources, equipment, technical facilities or teachers ). For those reasons it is out of the question for sighted and blind students to follow common courses ’.", "... Having regard to the relevant international agreements and legislative provisions, the course of action expected of the administration was not to force through amendments to a report drawn up by a hospital, thus impeding a blind citizen ’ s right to education ... In conclusion, the Chief Medical Officer amended the form of the report, [ but ] its content remained the same, such that he cannot be accused of negligence. The available administrative and judicial remedies should be used to aasert the right in question ... ”", "30. On 18 April 2006 the applicant ’ s parents, acting in her name and on her behalf, lodged an appeal on points of law with the Council of State against the 14 October 2005 decision of the Administrative Court ( see paragraph 27 above ). They submitted that that decision was contrary to the Constitution, to Act No. 1739, to Act No. 5378 and to several international instruments and declarations. They submitted that the respondent administration ’ s defence plea that eyesight was required in all the sections of the Music Academy was fallacious, citing the names of blind former music students who held diplomas from the Academy. They requested the invalidation of the first-instance decision in accordance with the arguments set out in the opinion of the President of the Administrative Court.", "31. On 4 January 2007 the administration of Istanbul Technical University filed its defence. It submitted that the applicant ’ s medical report had mentioned that she could study in the sections of the Music Academy which did not require eyesight, but that in fact the Academy had no such sections. Lastly, it affirmed that the applicant had not met all the requisite conditions for enrolment.", "32. By judgment of 19 February 2008, served on counsel for the applicant on 28 April 2008, the Council of State dismissed the appeal on points of law and upheld the impugned decision, having found that the latter had fallen within the jurisdiction of the administrative court, had not been unlawful and had complied with the procedural rules. Moreover, it transpired from the judgment of the Council of State that the reporting judge had come down in favour of admitting the appeal on points of law. In his opinion on the appeal on points of law, the State Prosecutor with the Council of State, referring to Article 42 of the Constitution and sections 4, 7 and 8 of Act No. 1739, also stated that educational establishments were required to take into account persons who required specialist teaching and to adopt the necessary measures to guarantee their education. In the circumstances of the present case, he considered that the decision not to enrol the applicant – who had passed the entrance examination for the Music Academy and met all the legal conditions – flouted the relevant constitutional and legislative provisions and should therefore be set aside.", "33. According to information transmitted to the Court by the applicant, after the rejection of her application to the Music Academy, she continued her education in an ordinary school before joining the Music Department of the Arts Faculty of Marmara University.", "..." ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 2 OF PROTOCOL No. 1", "39. The applicant complained of an infringement of her right to education. She contested the argument that eyesight was required for enrolment in the Music Academy, submitting that such a requirement was incompatible with the right to education. She further argued that the State had not honoured its positive obligation to provide persons with disabilities with the same opportunities as everyone else. She relied on Article 2 of Protocol No. 1, which provides :", "“ No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. ”", "40. The applicant also alleged that she had suffered discriminatory treatment on account of her blindness, in breach of Article 14 of the Convention, which provides :", "“ The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. ”", "41. The Government contested those allegations.", "A. Applicability of Article 2 of Protocol No. 1", "42. In the instant case the Government submitted that the college in which the applicant had wished to enrol held the status of an institution of higher education attached to the National Music Academy and provided four-year courses of higher education. Furthermore, the Music Academy taught such subjects as mathematics, physics and history, as well as providing optional courses; the Government therefore accepted that Article 2 of Protocol No. 1 might apply to the present case.", "43. The Court sees no reason to depart from this finding. Although Article 2 of Protocol No. 1 cannot be interpreted as requiring the Contracting States to set up or subsidise special education establishments, any State which does have such establishments has an obligation to provide effective access to them. In other words, access to educational institutions which exist at a given time is an integral part of the right set out in the first sentence of Article 2 of Protocol No. 1 (see Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04, 8252/05 and 18454/06, § 137, ECHR 2012 (extracts), with the case-law references therein). Moreover, that provision also applies to the primary, secondary and higher levels of education ( see Leyla Şahin v. Turkey [GC], no. 44774/98, §§ 134-136, ECHR 2005 ‑ XI). The fact that the college at issue primarily provides education in the arts sphere is no ground for excluding the assessment of the conditions for access to it from the scope of Article 2 of Protocol No. 1. Consequently, the applicant ’ s complaint does indeed fall within the ambit of that provision.", "...", "C. Merits", "1. The parties ’ submissions", "a. The applicant ’ s submissions", "45. The applicant submitted that by refusing to enrol her in the Music Academy on the sole ground of her blindness the administration had treated her in an unfair and discriminatory manner. The Government ’ s affirmations that there had been no suitable infrastructures in 2004-2005 to provide education for blind persons and that her enrolment would have been finalised if she had supplied all the requested documents ( see paragraphs 48-51 below ) were contradictory.", "46. The applicant also stated that she had provided all the requisite documents within the stipulated time-limits. The medical report presented to the Music Academy had stipulated that she could receive education in the sections of the Music Academy that did not require eyesight. She submitted that other students had been enrolled even though their medical reports had merely stated “can attend college”, “can be enrolled at university” or “can study at the Music Academy”, such that the refusal to enrol her had not been based on sound reasons but solely on the fact of her blindness, which proved that there had been discrimination.", "47. She affirmed that the essence of her right to education had been flouted by the Government. She further submitted, as regards the Music Academy ’ s past efforts to provide education for blind persons, that by omitting to provide educational opportunities for blind persons between 1976 and 2004 the Government had also failed to provide equal opportunities to all members of society, thus failing in their positive obligations in that regard.", "b. The Government ’ s submissions", "48. Having cited the case-law of the Court ( Case “ relating to certain aspects of the laws on the use of languages in education in Belgium” ( merits ), 23 July 1968, §§ 3-5, Series A no. 6; Golder v. the United Kingdom, 21 February 1975, 38, Series A no. 18; Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, §§ 21 and 52, Series A no. 23; Campbell and Cosans v. the United Kingdom, 25 February 1982, § 41, Series A no. 48; Yanaşɪk v. Turkey, no. 14524/89, Commission decision of 6 January 1993, Decisions and Reports (DR) 74, p. 14; Costello-Roberts v. the United Kingdom, 25 March 1993, § 27, Series A no. 247 ‑ C; Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294 ‑ B; and, mutatis mutandis, Podkolzina v. Latvia, no. 46726/99, § 36, ECHR 2002 ‑ II), the Government explained that the rules on conditions for admission and registration for the entrance examination to the instrumental music department required “ the specific physical capacities for playing the chosen instrument for which enrolment has been requested ” and “ no physical disabilities such as to impede education in the [ chosen ] section ”. Drawing on those provisions, the administration of the Music Academy had asked the applicant to provide a medical report in order to enrol her. However, the applicant had not provided a report stating that she was “qualified to study at the Music Academy”.", "49. According to the Government the rules in question had been legitimate and foreseeable, as the Music Academy admitted gifted students and persons with specific talents. Furthermore, the aforementioned criteria had been published and were accessible to the public. Nor did the regulations comprise any provisions explicitly excluding blind persons constituting manifest discrimination against such persons.", "50. The Government considered that the rejection by the administration of the Academy of the report provided by the applicant stating that she was capable of taking courses in a section which did not require eyesight should be assessed in such a way as to determine whether, and to what extent, it infringed the essence of the applicant ’ s right to education and diminished the effectiveness of such right.", "51. The Government further submitted that in 2004 the Music Academy had had neither the infrastructure ( in terms of resources, equipment and teaching staff ) for students with disabilities nor any regulations on matters relating to disability. As regards the allegation that the applicant had suffered discriminatory treatment, the Government pointed out that discrimination meant treating differently, without an objective and reasonable justification, persons in similar situations. “No objective and reasonable justification” meant that the distinction in issue did not pursue a legitimate aim or that there was not a reasonable relationship of proportionality between the means employed and the aim sought to be realised ( see Sejdić and Finci v. Bosnia -Herzegovina [GC], nos. 27996/06 and 34836/06, § 42, ECHR 2009, and Ali v. the United Kingdom, no. 40385/06, § 53, 11 January 2011). They also cited the case-law of the Court regarding the margin of appreciation enjoyed by States (see Andrejeva v. Latvia [GC], no. 55707/00, § 82, ECHR 2009). The Government concluded by stating that they were well informed of the Court ’ s case-law relating to the applicant ’ s complaints and that they respected the Court ’ s decision to intervene.", "2. The Court ’ s assessment", "a. General principles", "52. As regards the right to education, the Court reiterates that it has already had occasion to point out that in a democratic society that right is indispensable to the furtherance of human rights and plays a fundamental role ( see Velyo Velev v. Bulgaria, no. 16032/07, § 33, ECHR 2014 [ extracts ] ). In that connection, while repeating that education is one of the most important public services in a modern State, the Court acknowledges that it is an activity that is complex to organise and expensive to run, whereas the resources that the authorities can devote to it are necessarily finite. It is also true that in deciding how to regulate access to education, a State must strike a balance between, on the one hand, the educational needs of those under its jurisdiction and, on the other, its limited capacity to accommodate them. However, the Court cannot overlook the fact that, unlike some other public services, education is a right that enjoys direct protection under the Convention (ibid. ).", "53. The Court reiterates that in interpreting and applying Article 2 of Protocol No. 1, account must also be taken of any relevant rules and principles of international law applicable in relations between the Contracting Parties and that the Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part ( see Catan and Others, cited above, § 136). The provisions on the right to education set out in such instruments as the European Social Charter or the United Nations Convention on the Rights of Persons with Disabilities should therefore be taken into consideration. Lastly, the Court emphasises that the object and purpose of the Convention, as an instrument for the protection of individual human beings, requires that its provisions be interpreted and applied so as to make its safeguards practical and effective (ibid. ).", "54. As regards the prohibition of discrimination, the Court reiterates that discrimination means treating differently, without an objective and reasonable justification, persons in similar situations, and that “no objective and reasonable justification” means that the distinction in issue does not pursue a “legitimate aim” or that there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” ( see Sejdić and Finci, cited above, § 42). However, Article 14 of the Convention does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article ( see, among other authorities, D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007 ‑ IV). The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment ( see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 76, ECHR 2013 ([ extracts ] ).", "b. Application of those principles to the present case", "55. The Court considers that the possibly discriminatory treatment of the applicant is central to her complaint. It therefore takes the view that the case should be assessed first of all under Article 14 of the Convention in conjunction with Article 2 of Protocol No. 1 ( see, for a similar approach, Oršuš and Others v. Croatia [GC], no. 15766/03, §§ 143-145, ECHR 2010). The Court reiterates that it has already held that the scope of Article 14 includes discrimination based on disability ( see Glor v. Switzerland, no. 13444/04, § 80, ECHR 2009).", "56. In the present case, the applicant submitted that the rejection of her application for enrolment in the Music Academy had been discriminatory because it had been based on her blindness. In that regard, the Court observes that various legislative provisions in force at the material time confirmed the right to education of children with disabilities, without discrimination ...", "57. That being the case, the Court also notes that the conditions for enrolment in the Music Academy included the requirement to provide a medical certificate of physical fitness for receiving education in that establishment. Accordingly, the initial grounds for withholding access to education in the Music Academy from the applicant lay not in the law but in the Academy ’ s regulations. In that connection the Court further notes from the defence case submitted to the domestic courts by the administration of Istanbul Technical University ( see paragraph 17 above ) that the Music Academy was unable to admit persons with any kind of disability.", "58. In the instant case, therefore, the Court must ascertain whether, the State having decided to provide specialist musical education, access to such education could be withheld from a group of persons in particular because the discrimination includes cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention ( see Glor, cited above, § 73).", "59. Clearly, as the Government submitted ( see paragraph 49 above ), the regulations on enrolment in the Music Academy contained no provisions geared to excluding blind persons. It is also true that all applicants for enrolment in the Music Academy are required to provide a medical certificate concerning their physical fitness. Nevertheless, the Court cannot overlook the effects of such a requirement on persons such as the applicant who have a physical disability, having regard, in particular, to the manner in which the Academy in question interprets that requirement.", "60. The Court observes that the applicant did indeed provide the administration of the Academy with a medical report on her physical fitness, albeit with one reservation concerning her blindness ( see paragraph 11 above ). However, the Music Academy rejected that report, going so far as to demand amendments to it by the medical officer who had drawn it up ( see paragraphs 14 and 29 above ). Consequently, even though the Academy attempted to justify its refusal to enrol the applicant with her failure to comply with the requisite administrative formalities, and in particular the absence of a medical report prepared by a fully equipped hospital, the Court considers, having regard to all the foregoing considerations and to the letter from the Director of the Music Academy to the Chief Medical Officer of Bakɪrköy Hospital ( see paragraph 29 above ), that there can be no doubt that the applicant ’ s blindness was the sole reason for that refusal.", "61. Moreover, in view of the ease with which the Music Academy secured the amendment of the medical report originally prepared by the Chief Medical Officer of Bakɪrköy Hospital ( see paragraph 21 above ), the Court holds that the applicant would in any event have been unable to meet the physical fitness requirement, since the definition of the latter was apparently left to the Academy ’ s discretion. In that connection the Court also refers to the criticism voiced on that matter by the Governing Board of Istanbul Medical Association ( see paragraph 29 above ).", "62. The Court observes that the Government justified the rules governing enrolment in the Music Academy first of all with the fact that the Academy was designed to admit only students with special talents ( see paragraph 49 above ). Although the Court considers that the domestic authorities undeniably had a margin of appreciation in defining the qualities required of applicants to the Music Academy, that argument cannot stand up in the particular circumstances of the present case. If the Music Academy aims to provide education for specially gifted students, since the applicant had passed the entrance examination prior to any application for enrolment ( see paragraphs 16 and 32 above ), she demonstrated that she possessed all the requisite qualities in that regard.", "63. The Government then argued that at the material time the Music Academy had lacked appropriate infrastructures to admit students with disabilities.", "64. The Court reiterates that the Convention is intended to guarantee rights that are practical and effective and not theoretical and illusory ( see, among other authorities, Del Río Prada v. Spain [GC], no. 42750/09, § 88, ECHR 2013, and Dvorski v. Croatia [GC], no. 25703/11, § 82, 20 October 2015; see also paragraph 54 above ). In the context of the present case, the Court also reiterates that it must have regard to the changing conditions of international and European law and respond, for example, to any emerging consensus as to the standards to be achieved ( see, mutatis mutandis, Konstantin Markin v. Russia [GC], no. 30078/06, § 126, ECHR 2012 [extracts ], and Fabris v. France [GC], no. 16574/08, § 56, ECHR 2013 [ extracts ] ). In that connection, it notes the importance of the fundamental principles of universality and non-discrimination in the exercise of the right to education, which are enshrined in many international texts ( ... see Catan and Others, cited above, §§ 77-81). It further emphasises that those international instruments have recognised inclusive education as the most appropriate means of guaranteeing the aforementioned fundamental principles.", "65. The Court considers that Article 14 of the Convention must be read in the light of the requirements of those texts regarding reasonable accommodation – understood as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case ” – which persons with disabilities are entitled to expect in order to ensure “the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms” ( Article 2 of the Convention on the Rights of Persons with Disabilities ... ). Such reasonable accommodation helps to correct factual inequalities which are unjustified and therefore amount to discrimination ( see paragraph 54 above ).", "66. The Court is not unaware that every child has his or her specific educational needs, and this applies particularly to children with disabilities. In the educational sphere, the Court acknowledges that reasonable accommodation may take a variety of forms, whether physical or non-physical, educational or organisational, in terms of the architectural accessibility of school buildings, teacher training, curricular adaptation or appropriate facilities. That being the case, the Court emphasises that it is not its task to define the resources to be implemented in order to meet the educational needs of children with disabilities. The national authorities, by reason of their direct and continuous contact with the vital forces of their countries, are in principle better placed than an international court to evaluate local needs and conditions in this respect.", "67. However, the Court takes the view that it is important for the States to be particularly careful in making their choices in this sphere, having regard to the impact of the latter on children with disabilities, whose particular vulnerability cannot be overlooked. It consequently considers that discrimination on grounds of disability also covers refusal to make reasonable accommodation.", "68. In the instant case, the Court notes from the case-file that the relevant domestic authorities at no stage attempted to identify the applicant ’ s needs or to explain how her blindness could have impeded her access to a musical education. Nor did they ever consider physical adaptations in order to meet any special educational needs arising from the applicant ’ s blindness (cf. McIntyre v. the United Kingdom, no. 29046/95, Commission decision of 21 October 1998, not published ). The Court can only note that since 1976 the Music Academy has made no attempt to adapt its teaching methods in order to make them accessible to blind children.", "69. Having regard to all the foregoing considerations, the Court observes that the refusal to enrol the applicant in the Music Academy was based solely on the fact that she was blind and that the domestic authorities had at no stage considered the possibility that reasonable accommodation might have enabled her to be educated in that establishment. That being the case, the Court considers that the applicant was denied, without any objective and reasonable justification, an opportunity to study in the Music Academy, solely on account of her visual disability. It therefore finds that there has been a violation of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1.", "..." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1969 and lives in Samobor.", "A. Background to the case", "7. The applicant owned a flat in Zagreb situated on the third floor of a residential building, where he lived with his wife and two children.", "8. In 2003, three years after he had bought the flat, the applicant ’ s wife gave birth to their third child. The child was born with multiple physical and mental disabilities.", "9. After the birth the child underwent a number of medical treatments and his condition was under the constant supervision of the competent social care services. In April 2008 an expert commission diagnosed him with incurable cerebral palsy, grave mental retardation and epilepsy. In September 2008 the social services declared the child 100% disabled.", "10. In the meantime, in September 2006, the applicant bought a house in Samobor, and in October 2008 he sold his flat. According to the applicant, the reason for buying the house was the fact that the building in which his flat was situated had no lift and for that reason did not meet the needs of his disabled child and his family. In particular, it was very difficult to take his son out of the flat to see a doctor, or to take him for physiotherapy and to kindergarten or school, and to meet his other social needs.", "B. Proceedings concerning the applicant ’ s request for tax exemption", "11. On 19 October 2006, after he had bought the house in Samobor, the applicant submitted a tax exemption request to the tax authorities. He relied on section 11(9) of the Real Property Transfer Tax Act, which provided for the possibility of tax exemption for a person who was buying a flat or a house in order to solve his or her housing needs, if he or she, or his or her family members, did not have another flat or house meeting their housing needs (see paragraph 24 below). In his request the applicant argued that the flat which he owned did not meet the housing needs of his family since it was very difficult, and in fact becoming impossible, to take his disabled child out of the flat from the third floor without a lift, given that he was in a wheelchair. The applicant therefore submitted that he had bought the house in order to cater for his son ’ s needs.", "12. On 6 May 2009 the Samobor Tax Office ( Ministarstvo Financija – Porezna uprava, Područni ured Zagreb, Ispostava Samobor ) dismissed the applicant ’ s request, giving the following reasons.", "“Section 11(9) of the Real Property Transfer Tax Act ... provides for tax exemption for citizens who are buying their first real property in order to meet their housing needs, under conditions which must be cumulatively satisfied, including the requirement that the taxpayer in question, or his or her family members, do not have another flat or a house meeting their housing needs. During the proceedings it was established that the taxpayer Joško Guberina had owned a flat measuring 114.49 square metres, in Zagreb ..., which he had sold on 25 November 2008 ... Given that the surface of that real property, and in view of the number of the taxpayer ’ s immediate family members (five), satisfied the housing needs of the taxpayer and his immediate family, within the meaning of section 11(9.3) of the Real Property Transfer Tax Act, and given that it satisfied all housing needs in terms of hygiene and technical requirements as well as the basic infrastructure (electricity, water and [access to] other public utilities), under section 11(9.5) of the Real Property Transfer Tax Act, the taxpayer does not meet the cumulative conditions provided under section 11(9) of the Real Property Transfer Tax Act. It was therefore decided as noted in the operative part [of the decision].”", "13. The Samobor Tax Office ordered the applicant to pay 83,594.25 Croatian kunas (HRK) (approximately 11,250 euros (EUR)) in tax.", "14. The applicant appealed against the above decision to the Finance Ministry ( Ministarstvo Financija, Samostalna služba za drugostupanjski upravni postupak – “the Ministry”), and on 6 July 2009 the Ministry dismissed his appeal as ill-founded, endorsing the reasoning of the Samobor Tax Office. The relevant part of the decision reads as follows.", "“Section 11(9) of the Real Property Transfer Tax Act (Official Gazette, nos. 69/07-153/02) provides for tax exemption for citizens who are buying their first real property in order to meet their housing needs. It further lays down conditions which the citizen must meet in order to demonstrate that he or she is buying his or her first real property in order to meet his or her housing needs. In this connection, one of the conditions laid down under subsection (9.5) is that the citizen and the members of his or her immediate family must not have another real property (flat or house) meeting their housing needs; and subsection (9.6) also provides that the citizen and the members of his or her immediate family must not own a flat, a holiday house, or property of a significant value (other property of a significant value can include a piece of land where construction is allowed) or a business premises where the citizen or his or her immediate family members do not exercise a registered [business] activity, whereby the value of the real property is similar to that of the real property (flat or house) which the citizen is purchasing.", "Given the rationale of the cited provisions and the facts of the case as established beyond doubt during the proceedings, [the Ministry] considers that the first-instance authority was justified in rejecting the appellant ’ s request for tax exemption ... The right to tax exemption exists if the citizen, or his or her immediate family members, at the time of purchase [of the real property], do not own, or did not own, another real property meeting their housing needs or a flat, a holiday house or other real property of a significant value. As this is not the situation in the present case, given that the appellant, at the time of purchase [of the house], owned a flat in Zagreb ... larger than the real property he was buying and in respect of which he sought tax exemption, it cannot be said that by buying the house the appellant was purchasing his first real property in order to meet his housing needs.”", "15. On 7 September 2009 the applicant lodged an administrative action with the High Administrative Court ( Visoki upravni sud Republike Hrvatske ), arguing that in their decisions the lower bodies had ignored his specific family situation and, in particular, his child ’ s disability and therefore the housing needs of his family. In the applicant ’ s view, it was necessary to recognise that in his particular case the availability of a lift in the building was an infrastructural requirement on the same level as access to water and electricity in general. He also emphasised that the house was the first real property in respect of which he had sought a real property transfer tax exemption.", "16. On 21 March 2012 the High Administrative Court dismissed the applicant ’ s administrative action as ill-founded, endorsing the reasoning of the lower administrative bodies. The relevant part of the judgment reads as follows.", "“Given that the surface area of the flat [which the applicant owned] satisfied the needs of five members of the plaintiff ’ s family (subsection (9.3)) and that the flat in issue was equipped with the basic infrastructure and hygiene and technical requirements, the defendant correctly concluded that the plaintiff, in the given case, did not meet the conditions for a tax exemption set out in section 11(9) of the Real Property Transfer Tax Act.", "The arguments regarding the administrative action are ineffective in changing the decision in this administrative matter, and therefore the court considers that the impugned decision did not breach the law to the plaintiff ’ s detriment.”", "17. On 25 May 2012 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ) relying on Article 14 of the Constitution, contending, inter alia, that, given the specific accommodation needs of his family due to his child ’ s disability, he had been discriminated against by unfair application of the relevant tax legislation. He argued, in particular, that the competent administrative authorities had failed to correct the factual inequality inherent in his particular situation with regard to the ordinary meaning of the term basic infrastructural requirements meeting the housing needs of his family.", "18. On 26 September 2012 the Constitutional Court, endorsing the reasoning of the lower bodies, dismissed the applicant ’ s constitutional complaint as ill-founded on the ground that there was no violation of his constitutional rights. In particular, having examined his complaints from the angle of the right to a fair trial, the Constitutional Court held that no issue arose with regard to the other complaints relied upon by the applicant.", "19. The decision of the Constitutional Court was served on the applicant ’ s representative on 11 October 2012.", "C. Other relevant information", "20. The Government provided a report by the Ministry of Social Policy and Youth ( Ministarstvo socijalne politike i mladih ) of 6 November 2013, according to which the applicant ’ s child had been in receipt of monthly monetary allowances of HRK 1,000 (approximately EUR 130) in the period between 19 January 2006 and 10 September 2012, and allowances of HRK 625 (approximately EUR 80) from 11 September 2012 onwards. In addition, he had taken part in various therapeutic and social-assistance activities, and for the period between 29 June 2010 and 2 October 2011 the applicant ’ s wife had been granted special status related to her child ’ s disability and had received, inter alia, monthly payments of HRK 2,500 (approximately EUR 300).", "21. According to the applicant, the annual expenses relating to his son ’ s special needs amounted to some HRK 80,000 (approximately EUR 10,400). This included HRK 28,800 for physiotherapy, HRK 4,500 for speech therapy, HRK 900 for a child neurologist, HRK 7,200 for drugs, HRK 21,175 for a wheelchair (with additional State support of HRK 8,900); HRK 7,200 for swimming therapy; and HRK 9,150 for daily transport to the day-care centre for ten months.", "III. Basic elements of accessibilitySection 7", "“The basic elements of accessibility are:", "A. the elements of accessibility for overcoming differences in height,", "...”", "Section 9", "“In order to overcome differences in height in the premises used by persons with reduced mobility, the following elements of accessibility can be used: ... a lift ...”", "Section 12 Lifts", "“A lift shall be used as an element of accessibility for overcoming height differences, and must be used for overcoming height differences of more than 120 centimetres inside or outside the building.", "...”", "5. Prevention of Discrimination Act", "26. The relevant parts of the Prevention of Discrimination Act ( Zakon o suzbijanju diskriminacije, Official Gazette no. 85/2008) provide the following.", "Section 1", "“(1) This Act ensures the protection and promotion of equality as the highest value of the constitutional order of the Republic of Croatia; creates conditions for equal opportunities and regulates protection against discrimination on the basis of race or ethnic origin or skin colour, gender, language, religion, political or other conviction, national or social origin, state of wealth, membership of a trade union, education, social status, marital or family status, age, health, disability, genetic inheritance, gender identity, expression or sexual orientation.", "(2) Discrimination within the meaning of this Act means putting any person in a disadvantageous position on any of the grounds under subsection (1) of this section, as well as his or her close relatives.", "...”", "Section 8", "“This Act shall be applied in respect of all State bodies ... legal entities and natural persons ...”", "Section 16(1)", "“Anyone who considers that, owing to discrimination, any of his or her rights has been violated may seek protection of that right in proceedings in which the determination of that right is the main issue, and may also seek protection in separate proceedings under section 17 of this Act.”", "Section 17", "“(1) A person who claims that he or she has been a victim of discrimination in accordance with the provisions of this Act may bring a claim and seek:", "1. a ruling that the defendant has violated the plaintiff ’ s right to equal treatment or that an act or omission by the defendant may lead to the violation of the plaintiff ’ s right to equal treatment (claim for an acknowledgment of discrimination);", "2. a ban on (the defendant ’ s) undertaking acts which violate or may violate the plaintiff ’ s right to equal treatment or an order for measures aimed at removing discrimination or its consequences to be taken (claim for a ban or for removal of discrimination);", "3. compensation for pecuniary and non-pecuniary damage caused by the violation of the rights protected by this Act (claim for damages);", "4. an order for a judgment finding a violation of the right to equal treatment to be published in the media at the defendant ’ s expense.”", "27. In 2009 the Croatian Government Office for Human Rights ( Ured za ljudska prava Vlade Republike Hrvatske ) published a “Manual on implementation of the Prevention of Discrimination Act” ( Vodič uz Zakon o suzbijanju diskriminacije – “the Manual”). The Manual explains, inter alia, that section 16 of the Prevention of Discrimination Act provides two alternative avenues which an individual can pursue. Accordingly, an individual may raise his or her complaint of discrimination in proceedings concerning the main subject matter of a dispute, or he or she may opt for separate civil proceedings, as provided under section 17 of the Act.", "6. Administrative Disputes Act", "28. The relevant provision of the Administrative Disputes Act ( Zakon o upravnim sporovima, Official Gazette nos. 20/2010, 143/2012 and 152/2014) provides the following.", "Section 76", "“(1) Proceedings terminated by a judgment shall be reopened at the party ’ s request:", "1. if, in a final judgment, the European Court of Human Rights has found a violation of fundamental rights and freedoms in a manner differing from the [Administrative Court ’ s] judgment,", "...”", "B. Relevant practice", "1. Relevant practice concerning discrimination", "29. On 9 November 2010, in case no. U-III-1097/2009, the Constitutional Court declared a constitutional complaint of discrimination under a Parliamentary decision regarding the political affiliation of a deputy inadmissible for non-exhaustion of legal remedies. The Constitutional Court found that the appellant had failed to pursue both the relevant administrative remedies and the remedies provided under the Prevention of Discrimination Act. However, it declined to determine what the relationship between several possible avenues in a case concerning allegations of discrimination was, on the ground that it was primarily for the competent courts to determine that matter.", "30. In its decisions nos. U-III-815/2013 of 8 May 2014 concerning alleged discrimination in obtaining social benefit, and U-III-1680/2014 of 2 July 2014 concerning alleged discrimination in employment, the Constitutional Court confirmed its case-law as to the availability of remedies under the Prevention of Discrimination Act.", "31. The Government referred to the judgments of the Supreme Court, nos. Gž -41/11-2 of 28 February 2012, Gž -25/11-2 of 28 February 2012 and Gž -38/11-2 of 7 March 2012, which had accepted actions under the Prevention of Discrimination Act alleging discrimination on the ground of sexual orientation.", "2. Relevant practice concerning the application of tax legislation", "32. The Government also cited case-law of the Administrative Court ( Upravni sud Republike Hrvatske ) and the High Administrative Court by which they dismissed actions challenging the refusal of a real property transfer tax exemption on the ground of the appellants ’ failure to cumulatively meet the requirements under section 11(9.5) and (9.6) of the Real Property Transfer Tax Act (judgments in cases nos. Us-4028/2009-4 of 1 June 2011, Us-14106/2009-4 of 16 May 2012, and Us ‑ 3042/2011-4 of 19 September 2013; and a judgment of the High Administrative Court, no. Usž -269/2012-4 of 23 January 2013, by which it upheld a decision on tax exemption under section 11(9.3), (9.5) and (9.6) of the Real Property Transfer Tax Act).", "33. In each of these cases the administrative authorities conducted a thorough assessment of the comparable values of properties when deciding whether the appellant had a real property of significant value within the meaning of section 11(9.6) of the Real Property Transfer Tax Act." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Relevant domestic law", "1. The Constitution", "22. The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows.", "Article 14", "“Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.", "All shall be equal before the law.”", "Article 34", "“The home is inviolable.", "... ”", "Article 35", "“Everyone has the right to respect for and legal protection of his or her private and family life, dignity, reputation and honour.”", "Article 48", "“The right of ownership shall be guaranteed.", "...”", "2. Constitutional Court Act", "23. The relevant part of section 62 of the Constitutional Court Act ( Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002) reads as follows.", "Section 62", "“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that an individual act on the part of a State body, a body of local or regional self-government, or a legal person with public authority, concerning his or her rights and obligations or a suspicion or accusation of a criminal deed, has violated his or her human rights or fundamental freedoms or his or her right to local or regional self-government guaranteed by the Constitution (hereinafter ‘ a constitutional right ’ ).", "2. If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used.", "...”", "3. Real Property Transfer Tax Act", "24. The relevant provisions of the Real Property Transfer Tax Act ( Zakon o porezu na promet nekretnina, Official Gazette nos. 69/1997, 26/2000, 127/2000 and 153/2002) at the material time read as follows.", "Section 11", "“The real property transfer tax shall not be paid by:", "...", "(9) a citizen who is buying his or her first real property (flat or house) in order to meet his or her housing needs provided that:", "...", "(9.3) the surface area of the real property, depending on the number of members of the citizen ’ s immediate family, does not surpass:", "...", "– for five persons, up to 100 square metres,", "...", "(9.5) the citizen, or members of his or her immediate family, do not have other real property (a flat or a house) which meets their housing needs. Such real property (a flat or a house) meeting housing needs includes any accommodation which has basic infrastructure and satisfies hygiene and technical requirements. ...", "(9.6) the citizen and the members of his or her immediate family do not own a flat, a holiday house and other real property of a significant value. Another property of a significant value is a piece of land where construction is allowed and business premises where the citizen or his or her immediate family members do not perform a registered [business] activity, and the value of the real property is similar to the value of the real property (flat or house) which the citizen is buying.", "...", "(15) the citizens who have already used their right to a real property transfer tax exemption under subsections (9), (11) and (13) [of this section] do not have a right to another real property transfer tax exemption.”", "4. By-law on the accessibility of buildings for persons with disabilities and reduced mobility", "25. The relevant provisions of the by-law on the accessibility of buildings for persons with disabilities and reduced mobility ( Pravilnik o pristupačnosti građevina osobama s invaliditetom i smanjene pokretljivosti, Official Gazette nos. 151/2005 and 61/2007) provide the following.", "Section 1", "“This by-law lays down the conditions for and the manner of securing unobstructed access, mobility, stay and work for persons with disabilities and reduced mobility (hereafter, ‘ accessibility ’ ) as well as [the manner of] improving the accessibility of buildings for ... residential ... purposes ...”", "Section 2", "“The accessibility, improvement of accessibility and the [methods for] conforming to the accessibility of buildings referred to in section 1 of this by-law shall be secured by mandatory building design and construction of the buildings so as to secure the elements of accessibility and/or to conform to the conditions of use of [mobility] devices for persons with disabilities ... as laid down in this by-law.”", "III. RELEVANT INTERNATIONAL MATERIAL", "A. United Nations", "1. Convention on the Rights of Persons with Disabilities", "34. The relevant parts of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), 24 January 2007, UN Doc. A/RES/61/106, ratified by Croatia on 15 August 2007, provide as follows:", "Article 2 Definitions", "“For the purposes of the present Convention:", "...", "‘ Reasonable accommodation ’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;", "...”", "Article 3 General principles", "“The principles of the present Convention shall be:", "...", "(b) Non-discrimination;", "...", "(f) Accessibility;", "...”", "Article 4 General obligations", "“1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake:", "(a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention;", "(b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;", "(c) To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes:", "(d) To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention;", "(e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise;", "...", "2. With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of these rights, without prejudice to those obligations contained in the present Convention that are immediately applicable according to international law.", "...”", "Article 5 Equality and non-discrimination", "“1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.", "2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.", "3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.", "4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.”", "Article 7 Children with disabilities", "“1. States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.", "2. In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.", "...”", "Article 9 Accessibility", "“1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:", "(a) Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces;", "(b) Information, communications and other services, including electronic services and emergency services.", "...”", "Article 19 Living independently and being included in the community", "“States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:", "(a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;", "(b) Persons with disabilities have access to a range of in-home residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;", "...”", "Article 20 Personal mobility", "“States Parties shall take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities, including by:", "(a) Facilitating the personal mobility of persons with disabilities in the manner and at the time of their choice, and at affordable cost;", "(b) Facilitating access by persons with disabilities to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost;", "...”", "Article 28 Adequate standard of living and social protection", "“1. States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.", "...”", "2. Practice of the United Nations Committee on the Rights of Persons with Disabilities (“the CRPD Committee”)", "35. In its General Comment No. 2 (2014) on Article 9: Accessibility, 22 May 2014, UN Doc. CRPD/C/GC/2, the CRPD Committee noted the following.", "“1. Accessibility is a precondition for persons with disabilities to live independently and participate fully and equally in society. Without access to the physical environment, to transportation, to information and communication, including information and communications technologies and systems, and to other facilities and services open or provided to the public, persons with disabilities would not have equal opportunities for participation in their respective societies.", "...", "29. It is helpful to mainstream accessibility standards that prescribe various areas that have to be accessible, such as the physical environment in laws on construction and planning, transportation in laws on public aerial, railway, road and water transport, information and communication, and services open to the public. However, accessibility should be encompassed in general and specific laws on equal opportunities, equality and participation in the context of the prohibition of disability-based discrimination. Denial of access should be clearly defined as a prohibited act of discrimination. Persons with disabilities who have been denied access to the physical environment, transportation, information and communication, or services open to the public should have effective legal remedies at their disposal. When defining accessibility standards, States parties have to take into account the diversity of persons with disabilities and ensure that accessibility is provided to persons of any gender and of all ages and types of disability. Part of the task of encompassing the diversity of persons with disabilities in the provision of accessibility is recognizing that some persons with disabilities need human or animal assistance in order to enjoy full accessibility (such as personal assistance, sign language interpretation, tactile sign language interpretation or guide dogs). It must be stipulated, for example, that banning guide dogs from entering a particular building or open space would constitute a prohibited act of disability-based discrimination.”", "3. Practice of the United Nations Committee on Economic, Social and Cultural Rights (CESCR)", "36. In its General Comment No. 5: Persons with Disabilities, 9 December 1994, UN Doc. E/1995/22 the CESCR noted the following.", "“ 3. The obligation to eliminate discrimination on the grounds of disability", "15. Both de jure and de facto discrimination against persons with disabilities have a long history and take various forms. They range from invidious discrimination, such as the denial of educational opportunities, to more ‘ subtle ’ forms of discrimination such as segregation and isolation achieved through the imposition of physical and social barriers. For the purposes of the Covenant, ‘ disability-based discrimination ’ may be defined as including any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights. Through neglect, ignorance, prejudice and false assumptions, as well as through exclusion, distinction or separation, persons with disabilities have very often been prevented from exercising their economic, social or cultural rights on an equal basis with persons without disabilities. The effects of disability-based discrimination have been particularly severe in the fields of education, employment, housing, transport, cultural life, and access to public places and services.”", "37. The CESCR reaffirmed its General Comment No. 5 in its General Comment No. 20: Non-discrimination in economic, social and cultural rights, 2 July 2009, UN Doc. E/C.12/GC/20, in the following terms.", "“ B. Other status", "27. The nature of discrimination varies according to context and evolves over time. A flexible approach to the ground of ‘ other status ’ is thus needed in order to capture other forms of differential treatment that cannot be reasonably and objectively justified and are of a comparable nature to the expressly recognized grounds in article 2, paragraph 2. These additional grounds are commonly recognized when they reflect the experience of social groups that are vulnerable and have suffered and continue to suffer marginalization. ...", "Disability", "28. In its general comment No. 5, the Committee defined discrimination against persons with disabilities as ‘ any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights ’. The denial of reasonable accommodation should be included in national legislation as a prohibited form of discrimination on the basis of disability. States parties should address discrimination, such as prohibitions on the right to education, and denial of reasonable accommodation in public places such as public health facilities and the workplace, as well as in private places, e.g. as long as spaces are designed and built in ways that make them inaccessible to wheelchairs, such users will be effectively denied their right to work.”", "B. Council of Europe", "1. Committee of Ministers Recommendation Rec(2006)5", "38. The relevant parts of Recommendation Rec(2006)5 of the Committee of Ministers to member States on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006-2015, of 5 April 2006, read as follows.", "“ 1.2. Fundamental principles and strategic goals", "1.2.1. Fundamental principles", "Member states will continue to work within anti-discriminatory and human rights frameworks to enhance independence, freedom of choice and the quality of life of people with disabilities and to raise awareness of disability as a part of human diversity.", "Due account is taken of relevant existing European and international instruments, treaties and plans, particularly the developments in relation to the draft United Nations international convention on the rights of persons with disabilities.", "...", "1.3. Key action lines", "...", "People with disabilities should be able to live as independently as possible, including being able to choose where and how to live. Opportunities for independent living and social inclusion are first and foremost created by living in the community. Enhancing community living (No. 8) requires strategic policies which support the move from institutional care to community-based settings, ranging from independent living arrangements to sheltered, supportive living in small-scale settings. It also implies a co-ordinated approach in the provision of user-driven, community-based services and person-centred support structures.", "...", "2.7. Fundamental principles", "The fundamental principles which govern this Action Plan are:", "– non-discrimination;", "– equality of opportunities;", "– full participation in society of all persons with disabilities;", "...", "4.3. People with disabilities in need of high level of support", "...", "4.4. Children and young people with disabilities", "The needs of children with disabilities and their families must be carefully assessed by responsible authorities with a view to providing measures of support which enable children to grow up with their families, to be included in the community and local children ’ s life and activities. Children with disabilities need to receive education to enrich their lives and enable them to reach their maximum potential.", "Quality service provision and family support structures can ensure a rich and developing childhood and lay the foundation for a participative and independent adult life. It is important therefore that policy makers take into account the needs of children with disabilities and their families when designing disability policies and mainstream policies for children and families.”", "2. Parliamentary Assembly Resolution 1642(2009) on access to rights for people with disabilities and their full and active participation in society, reaffirmed by Parliamentary Assembly Recommendation 1854 (2009) of 26 January 2009", "39. The relevant parts of Parliamentary Assembly Resolution 1642(2009) on access to rights for people with disabilities and their full and active participation in society read as follows.", "“8. The Assembly considers that in order to enable the active participation of people with disabilities in society, it is imperative that the right to live in the community be upheld. It invites member states to:", "...", "8.2. provide adequate and sustained assistance to families, above all through human and material (particularly financial) means, to enable them to support their disabled family member at home;", "...", "12. The Assembly considers that the creation of a society for all implies equal access for all citizens to the environment in which they live. ...”", "C. European Union", "40. The relevant provisions of the Charter of Fundamental Rights of the European Union (2000/C 364/01) read as follows.", "Article 21 Non-discrimination", "“1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.", "2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.”", "Article 26 Integration of persons with disabilities", "“The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.”", "41. On 17 July 2008, in its judgment in S. Coleman v. Attridge Law and Steve Law (C-303/06, ECLI:EU:C:2008:415), the Grand Chamber of the European Court of Justice (ECJ) addressed the question whether Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, should be interpreted as prohibiting direct discrimination on grounds of disability only in respect of an employee who is himself disabled, or whether the principle of equal treatment and the prohibition of direct discrimination applied equally to an employee who is not himself disabled but who is treated less favourably by reason of the disability of his child, for whom he is the primary provider of the care required by virtue of the child ’ s condition. In this connection, the ECJ concluded as follows.", "“56. ... Directive 2000/78, and, in particular, Articles 1 and 2(1) and (2)(a) thereof, must be interpreted as meaning that the prohibition of direct discrimination laid down by those provisions is not limited only to people who are themselves disabled. Where an employer treats an employee who is not himself disabled less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination laid down by Article 2(2)(a).”", "42. On 16 July 2015, in its judgment in CHEZ Razpredelenie Bulgaria AD v. Komisia za zashtita ot diskriminatsia (C ‑ 83/14, ECLI:EU:C:2015:480), the Grand Chamber of the ECJ addressed the question of indirect discrimination on the grounds of ethnic origin relating to the interpretation of Directive 2000/43/EC of 29 June 2000, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, and the Charter of Fundamental Rights of the European Union, in particular whether the principle of equal treatment should benefit only persons who actually possess the racial or ethnic origin concerned or also persons who, although not being of the racial or ethnic origin in question, nevertheless suffer less favourable treatment on those grounds. The relevant part of the judgment reads as follows.", "“56. ... the Court ’ s case-law, already recalled in paragraph 42 of the present judgment, under which the scope of Directive 2000/43 cannot, in the light of its objective and the nature of the rights which it seeks to safeguard, be defined restrictively, is, in this instance, such as to justify the interpretation that the principle of equal treatment to which that directive refers applies not to a particular category of person[s] but by reference to the grounds mentioned in Article 1 thereof, so that that principle is intended to benefit also persons who, although not themselves a member of the race or ethnic group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of those grounds (see, by analogy, judgment in Coleman, C ‑ 303/06, EU:C:2008:415, paragraphs 38 and 50).”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION", "43. The applicant complained of alleged discrimination occasioned by the unfair application of domestic tax legislation. He relied on Article 14 of the Convention and Article 1 of Protocol No. 1, which read as follows:", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 1 of Protocol No. 1", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. Admissibility", "1. The parties ’ submissions", "44. The Government argued that the applicant had failed to raise his complaint of discrimination during the proceedings before the administrative authorities concerning the adoption of the decision on his request for tax exemption. In particular, he had not relied on the provisions of the Prevention of Discrimination Act in his appeal against the first-instance decision, nor had he raised the matter in his administrative action before the High Administrative Court. Moreover, he could have instituted separate civil proceedings for damages under the Prevention of Discrimination Act but had failed to avail himself of that opportunity. He had thus failed to use the effective domestic remedies concerning the allegations of discrimination. The Government conceded that the Constitutional Court had not declared the applicant ’ s constitutional complaint inadmissible for non-exhaustion of remedies, but they considered, without elaborating further on the matter, that the provision on exhaustion of remedies under the Constitutional Court Act had a different scope and meaning from the rule on exhaustion of remedies under the Convention. The Government also pointed out that in his constitutional complaint the applicant had failed to cite the exact provision of the Constitution guaranteeing the right to property.", "45. The applicant submitted that he had properly exhausted remedies before the administrative authorities and the Constitutional Court. In particular, his complaints at the domestic level concerning the alleged discrimination by dint of unfair application of the tax legislation had not been so different as to require a separate examination of the discrimination from the property complaint. Accordingly, by properly exhausting the administrative remedies he had not been required to pursue any other remedy under the Prevention of Discrimination Act with the same objective since it was the Court ’ s well-established case-law that in the case of several potentially effective remedies an applicant was only required to use one of them. At all events, the Constitutional Court had not declared his constitutional complaint inadmissible for non-exhaustion of domestic remedies, which suggested that he had properly exhausted the relevant remedies before the administrative authorities. The applicant also emphasised that he had properly raised his complaints before the Constitutional Court, complaining in substance of a discriminatory violation of his property rights related to an unfair application of the tax legislation.", "2. The Court ’ s assessment", "46. The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with an application after all domestic remedies have been exhausted. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 70-71, 25 March 2014, and Gherghina v. Romania (dec.) [GC], no. 42219/07, § 85, 9 July 2015).", "47. Article 35 § 1 also requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Vučković and Others, cited above, § 72).", "48. However, in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999; Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004-V; Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005-XII; and Jasinskis v. Latvia, no. 45744/08, § 50, 21 December 2010).", "49. The Court notes at the outset that it is undisputed between the parties that the Prevention of Discrimination Act provides two alternative avenues through which an individual can seek protection from discrimination. In particular, an individual may raise his or her complaint of discrimination in the proceedings concerning the main subject matter of a dispute, or he or she may opt for separate civil proceedings, as provided under section 17 of that Act (see paragraphs 26-27 above).", "50. In the instant case, the applicant contended during the administrative proceedings that the competent tax authorities had failed to treat his situation differently when determining the question of tax exemption for solving his housing needs given the disability of his child and the needs of his family. However, the High Administrative Court considered those arguments irrelevant and declined to give any ruling to that effect (see paragraphs 15-16 above). The Court finds that the applicant thereby raised in substance his discrimination complaint concerning his property rights in these administrative proceedings (compare Glor v. Switzerland, no. 13444/04, § 55, ECHR 2009). He was therefore not required to pursue another remedy under the Prevention of Discrimination Act with essentially the same objective in order to meet the requirements of Article 35 § 1 of the Convention (see paragraph 48 above).", "51. In any case, the Court notes that the Constitutional Court did not declare the applicant ’ s constitutional complaint inadmissible for non-exhaustion of legal remedies, as was its practice in other cases concerning discrimination complaints where the appellants had not properly exhausted remedies before the lower domestic authorities (see paragraphs 29-30 above). Accordingly, the Court has no reason to doubt the applicant ’ s proper use of remedies before the administrative and judicial authorities (see Vladimir Romanov v. Russia, no. 41461/02, § 52, 24 July 2008; Bjedov v. Croatia, no. 42150/09, § 48, 29 May 2012; and Zrilić v. Croatia, no. 46726/11, § 49, 3 October 2013).", "52. As to the Government ’ s argument that the applicant had failed to cite the exact provision of the Constitution guaranteeing the right to property in his constitutional complaint, the Court notes that the applicant expressly relied on Article 14 of the Constitution, guaranteeing protection from discrimination, and complained of discrimination by the allegedly unfair application of the relevant tax legislation (see paragraph 17 above). By explicitly raising his discrimination complaint, which was in substance related to his property rights, he thereby provided the Constitutional Court with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention of putting right the violations alleged against them (see, among many other authorities, Gäfgen v. Germany [GC], no. 22978/05, §§ 144-46, ECHR 2010; Lelas v. Croatia, no. 55555/08, § 51, 20 May 2010; Karapanagiotou and Others v. Greece, no. 1571/08, § 29, 28 October 2010; Bjedov, cited above, § 48; Tarbuk v. Croatia, no. 31360/10, § 32, 11 December 2012; and Jaćimović v. Croatia, no. 22688/09, §§ 40-41, 31 October 2013).", "53. The Court therefore rejects the Government ’ s objection. It also notes that the applicant ’ s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "54. The applicant submitted that the domestic authorities had established his liability to pay the tax on the basis of an imprecise and unforeseeable provision and without a proper assessment of the particular circumstances of his case. Moreover, they had failed to make any assessment of proportionality of the interference with his property rights. The applicant therefore considered that the refusal to grant him the tax exemption imposed an excessive individual burden on him, contrary to Article 1 of Protocol No. 1. While the applicant accepted that the domestic authorities enjoyed a wide margin of appreciation in matters of taxation, he pointed out that according to the Court ’ s well-established case-law their discretion could not be exercised in a manner incompatible with Article 14 of the Convention.", "55. The applicant pointed out that the reason for the rejection of his request for tax exemption was the fact that, under the domestic authorities ’ understanding of section 11(9.5) of the Real Property Transfer Act, the flat which he had owned had been suitable for the housing needs of his family, in view of its surface area (section 11(9.3) of the Real Property Transfer Act) and other infrastructural requirements. Further conditions, such as value of the previously owned property (section 11(9.6) of the Real Property Transfer Act), had had no bearing in the domestic authorities ’ assessment of his case. This had suggested that in a case such as his, where an individual had already owned a real property, the relevant law envisaged the assessment of the suitability of the previously owned property as the central element for deciding on requests for tax exemption when buying a new real property suitable for living. However, in the applicant ’ s view, the domestic authorities had failed to conduct a proper assessment of the circumstances of his case and thus obviously deprived him of adequate procedural means for the protection of his rights.", "56. The applicant also pointed out that he had not sought any preferential status but had merely requested the authorities to exempt him from the obligation to pay tax due to the particular circumstances of his case. To the applicant, it was obvious that he had not sought tax exemption so as to become unjustly enriched, since he had sold his old flat in order to buy a smaller real property adapted to the his family ’ s needs in relation to his son ’ s disability.", "57. The applicant further argued that accessibility, as a fundamental feature of housing, qualified as a basic infrastructure to be provided equally for all. Thus, any difference in treatment in that respect would imply discrimination. Moreover, in the light of the principle of reasonable accommodation, the decisions of the domestic authorities, which failed to adapt the definitions they had used with regard to the particular needs of persons with disabilities, suggested indirect discrimination or discrimination by failure to treat differently people whose situations significantly differed.", "58. In the applicant ’ s view, the reason for the discrimination was disability by association vis-à-vis the needs of his son, which had been ignored by the competent domestic authorities. In particular, their assessment of the basic infrastructural requirements for appropriate housing had been conducted with regard to the needs of able-bodied people, ignoring the fact that the existence of a lift for a disabled person was a fundamental and indispensable feature for housing necessary for easy and unencumbered access. The authorities had thus discriminated against him by failing to interpret the term “property that satisfies a family ’ s housing needs” in a way that took into consideration the accessibility of the property in question. This discriminatory treatment, in the applicant ’ s view, had no reasonable justification, particularly given that the problem of accessibility impeded his son ’ s ability to leave the flat, thereby restricting all his other rights, such as those to adequate health treatment, education and personal development. That consequently affected the entire family, which had had to cope with the problem of accessibility and also to bear a significant financial burden related to the son ’ s disability.", "(b) The Government", "59. The Government accepted that there had been an interference with the applicant ’ s property rights, but considered that such interference had been lawful, that it had pursued a legitimate aim of securing public finances and that it had been proportionate. Specifically, the Government stressed that the State enjoyed a wide margin of appreciation in tax matters and that the domestic authorities had been best placed to assess individual cases. In the applicant ’ s case, the domestic authorities had sufficiently taken into account his personal situation but had considered that he could not be exempted from taxation as he had not met the requirements under the relevant domestic law.", "60. In particular, the Government submitted that section 11 of the Real Property Transfer Act clearly stated that a tax exemption could be granted only if the conditions under that provision had been cumulatively met. In the case in issue, the applicant had failed to meet two conditions. Firstly, the flat he had owned at the time when he had bought the house objectively satisfied the requirements for adequate housing for him and his family. It had basic infrastructure and satisfied hygiene and technical requirements, and the tax authorities had no discretion in assessing the term “housing needs”. In the Government ’ s view, the tax authorities were neither equipped nor competent to objectively assess the numerous specific housing needs of persons who sought tax exemption. With regard to the second condition, the Government submitted that the applicant had not met the value requirement in that he had owned a flat of significant value. Therefore, the fact that the building was not equipped with a lift had been irrelevant. It was in fact the intention of the relevant domestic law to provide tax exemption in order to assist individuals who were buying their first real property, and in particular those without property of significant value. In the case in issue, the domestic authorities had acted within their margin of appreciation, and had accordingly assessed that the applicant did not need any such financial assistance, which had led them to dismiss his request for tax exemption. Accordingly, in the Government ’ s view, no excessive individual burden had been imposed on the applicant.", "61. The Government also argued that there had been no discriminatory treatment of the applicant in relation to his child ’ s disability because the reason for the dismissal of his tax-exemption request was his financial situation. This had an objective and reasonable justification in that the State had sought to protect financially disadvantaged individuals. The applicant did not belong to that category of persons since he had owned a satisfactory flat.", "62. The Government further stressed that the State, as a Party to the Convention on the Rights of Persons with Disabilities (CRPD), had implemented a number of positive measures aimed at ensuring accessibility for disabled people, and that almost seventy per cent of public buildings in Zagreb had been adapted for that purpose. Moreover, a recent visit to Croatia by the United Nations Special Rapporteur on Disability had commended those efforts expended by the State. With regard, in particular, to the tax exemptions set out in the Real Property Transfer Act, the Government stressed that the positive measures implemented by the State were primarily aimed at financially disadvantaged individuals and that they could not address the needs of all vulnerable groups. However, the State had put in place various tax benefits for disabled persons relating, for instance, to income and health-services taxation. Moreover, in harmonising its activities with the relevant international standards, the State had adopted a National Strategy to Secure Equal Opportunities for Persons with Disabilities 2007-2015, and was actively implementing various measures at national and local levels in order to meet the needs of disabled people.", "(c) The third-party interveners", "63. The third-party interveners submitted that the Court should have regard to the relevant standards of the CRPD, particularly those concerning the concepts of accessibility, non-discrimination and reasonable accommodation, in assessing the State ’ s compliance with its Convention obligations concerning people with disabilities. They emphasised the intimate link between accessibility and reasonable accommodation, which were both ultimately geared to ensuring the effective enjoyment and exercise of the rights of such people on an equal footing with others. There were, however, differences between the two concepts, in that the general accessibility requirement should be met in anticipation of the accessibility needs of the disabled population, whereas reasonable accommodation included specific measures for a particular disabled individual, which had to be implemented immediately.", "64. The third-party interveners further pointed out that international human rights law now demanded the prohibition of discrimination by association, which concerned cases of discrimination against an individual on the grounds not of his or her own characteristics but of his or her relation to someone else with the relevant characteristics. This principle was well established in several jurisdictions across Europe, and was also set out in the Croatian Prevention of Discrimination Act. Moreover, international human rights mechanisms had been increasingly calling for positive State action to ensure access to housing by persons with disabilities. National jurisdictions, particularly within the European Union, had started to implement the relevant measures, which also included tax rebates or exemptions.", "65. The third-party interveners also argued that persons with disabilities had to be able to exercise their rights without discrimination. Moreover, living in inaccessible homes impeded participation in the life of the community and led to isolation and the segregation of disabled individuals and their entire families. In particular, they emphasised that failure to provide reasonable accommodation amounted to discrimination based on disability.", "2. The Court ’ s assessment", "(a) General principles", "66. The Court notes that the central tenet of the applicant ’ s complaint is his alleged discriminatory treatment in the application of the relevant tax legislation, contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. The Court will therefore address his complaint in this respect on the basis of the relevant principles flowing from its case-law under Article 14 of the Convention.", "67. The Court has consistently held that Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of them. The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide (see, among many other authorities, E.B. v. France [GC], no. 43546/02, §§ 47-48, 22 January 2008, and Carson and Others v. the United Kingdom [GC], no. 42184/05, § 63, ECHR 2010).", "68. The Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or status, are capable of amounting to discrimination within the meaning of Article 14 (see Eweida and Others v. the United Kingdom, nos. 48420/10 and 3 others, § 86, ECHR 2013).", "69. Generally, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (see X and Others v. Austria [GC], no. 19010/07, § 98, ECHR 2013). However, not every difference in treatment will amount to a violation of Article 14. A difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Fabris v. France [GC], no. 16574/08, § 56, ECHR 2013; Weller v. Hungary, no. 44399/05, § 27, 31 March 2009; and Topčić-Rosenberg v. Croatia, no. 19391/11, § 36, 14 November 2013).", "70. Moreover, Article 14 does not prohibit Contracting Parties from treating groups differently in order to correct “factual inequalities” between them. Indeed, the right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different ( see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV; Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006 ‑ VI; and Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 44, ECHR 2009).", "71. The Court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group, and that discrimination potentially contrary to the Convention may result from a de facto situation (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007 ‑ IV, and Kurić and Others v. Slovenia [GC], no. 26828/06, § 388, ECHR 2012). This is only the case, however, if such policy or measure has no “objective and reasonable” justification, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see S.A.S. v. France [GC], no. 43835/11, § 161, ECHR 2014).", "72. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and the background. The same is true with regard to the necessity to treat groups differently in order to correct “factual inequalities between them” (see Stummer v. Austria [GC], no. 37452/02, § 88, ECHR 2011).", "73. On the one hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy, for example (see Hämäläinen v. Finland [GC], no. 37359/09, § 109, ECHR 2014). This also includes measures in the area of taxation. However, any such measures must be implemented in a non-discriminatory manner and comply with the requirements of proportionality (see R.Sz. v. Hungary, no. 41838/11, § 54, 2 July 2013). On the other hand, if a restriction on fundamental rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, then the State ’ s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question. The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice could entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs. The Court has already identified a number of such vulnerable groups that suffered different treatment on account of their characteristic or status, including disability (see Glor, cited above, § 84; Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010; and Kiyutin v. Russia, no. 2700/10, § 63, ECHR 2011). Moreover, with regard to all actions concerning children with disabilities the best interest of the child must be a primary consideration (see paragraph 34 above; Article 7 § 2 of the CRPD). In any case, however, irrespective of the scope of the State ’ s margin of appreciation, the final decision as to the observance of the Convention ’ s requirements rests with the Court (see, inter alia, Konstantin Markin v. Russia [GC], no. 30078/06, § 126, ECHR 2012).", "74. Lastly, as regards the burden of proof in relation to Article 14 of the Convention, the Court has held that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified (see D.H. and Others v. the Czech Republic, cited above, § 177; Kurić and Others, cited above, § 389; and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 85, ECHR 2013).", "(b) Application of these principles to the present case", "(i) Whether the facts underlying the complaint fall within the scope of Article 1 of Protocol No. 1", "75. The Court notes that it is undisputed between the parties that the circumstances of the present case, concerning matters of taxation, fall within the scope of Article 1 of Protocol No. 1, rendering Article 14 of the Convention applicable. The Court sees no reason to hold otherwise (see, for example, Burden v. the United Kingdom [GC], no. 13378/05, § 59, ECHR 2008).", "(ii) Whether the disability of the applicant ’ s child brought the applicant ’ s situation within the term “other status” in Article 14 of the Convention", "76. The Court has already held that a person ’ s health status, including disability and various health impairments fall within the term “other status” in the text of Article 14 of the Convention (see Glor, cited above, § 80; Kiyutin, cited above, § 57; and I.B. v. Greece, no. 552/10, § 73, ECHR 2013).", "77. The present case concerns a situation in which the applicant did not allege discriminatory treatment related to his own disability but rather his alleged unfavourable treatment on the basis of the disability of his child, with whom he lives and for whom he provides care. In other words, in the present case the question arises to what extent the applicant, who does not himself belong to a disadvantaged group, nevertheless suffers less favourable treatment on grounds relating to the disability of his child (see paragraphs 41-42 above).", "78. In this connection the Court reiterates that the words “other status” have generally been given a wide meaning in its case-law (see Carson and Others, cited above, § 70) and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent (see Clift v. the United Kingdom, no. 7205/07, §§ 56-59, 13 July 2010). For example, a discrimination issue arose in cases where the applicants ’ status, which served as the alleged basis for discriminatory treatment, was determined in relation to their family situation, such as their children ’ s place of residence (see Efe v. Austria, no. 9134/06, § 48, 8 January 2013). It thus follows, in the light of its objective and nature of the rights which it seeks to safeguard, that Article 14 of the Convention also covers instances in which an individual is treated less favourably on the basis of another person ’ s status or protected characteristics.", "79. The Court therefore finds that the alleged discriminatory treatment of the applicant on account of the disability of his child, with whom he has close personal links and for whom he provides care, is a form of disability-based discrimination covered by Article 14 of the Convention.", "(iii) Whether there was a difference of treatment between persons in relevantly similar positions or a failure to treat differently persons in relevantly different situations", "80. The Court further observes that the applicant alleged discriminatory treatment in the application of the domestic real property tax legislation in comparison to other persons purchasing real property in order to meet their housing needs, under circumstances where the property which they owned fell short of the housing needs of their families. In particular, the applicant contended that by selling his flat, situated on the third floor of a residential building in Zagreb, and moving to a house in Samobor, he had for the first time created housing conditions suited to his family ’ s situation after the birth of his disabled child. This specifically relates to the fact that the residential building in which the flat was located was not equipped with a lift, making it increasingly difficult, as his son grew, for the applicant and his family to take him out of the flat to see a doctor, or to take him for physiotherapy and to kindergarten or school, and to meet his other social needs (see paragraph 10 above).", "81. The Court notes that it is undisputed between the parties that the applicant ’ s son was a person with profound and multiple disabilities and that he required full-time care and attention. This also conclusively follows from the report of the social care services which declared him 100% disabled (see paragraph 9 above). This raises the question whether the applicant ’ s flat could be considered as accommodation meeting the housing needs of his family after the birth of his disabled child.", "82. In the Court ’ s view, there can be no question that the applicant ’ s flat in Zagreb, which he had bought three years before the birth of his son, situated on the third floor of a residential building without a lift, severely impaired his son ’ s mobility and consequently threatened his personal development and ability to reach his maximum potential, making it extremely difficult for him to participate fully in the community and the educational, cultural and social activities available for children. The absence of a lift must have impaired the applicant ’ s family ’ s quality of life, particularly that of his son. The latter ’ s situation might be compared to that of an able-bodied person who, for example, had a flat on the third floor of a residential building without appropriate access to it, or had limited access to the necessary relevant public amenities.", "83. The Court therefore finds that in seeking to replace the flat in question by buying a house that was adapted to the needs of his family, the applicant was in a comparable position to any other person replacing a flat or a house by buying another real property equipped with, in the words of the relevant domestic tax legislation, basic infrastructure and technical accommodation requirements (see paragraph 24 above). His situation nevertheless differed with regard to the meaning of the term “basic infrastructure requirements” which, in view of his son ’ s disability and the relevant national and international standards on the matter (see paragraphs 25 and 34-42 above), necessitated access to facilities such as, in the instant case, a lift.", "84. However, the Court notes that the Samobor Tax Office considered that, given the surface area of the flat which the applicant had owned in Zagreb and the existence of infrastructure, such as electricity, water and access to other public utilities, it could not be said that the applicant had not had accommodation meeting the housing needs of his family. Accordingly, he was denied a tax exemption for the purchase of a property meeting the housing needs of his family, disregarding the applicant ’ s arguments concerning his family ’ s specific needs arising out of his child ’ s disability (see paragraphs 11-12 above).", "85. That decision was upheld by the Finance Ministry and the High Administrative Court, pointing out that it could not be said that in buying the house the applicant had bought a property to meet his housing needs, given that, in their view, the flat he had owned met the basic infrastructure requirements. Again, as with the Samobor Tax Office, no consideration was given to the specific needs of the applicant ’ s family in terms of his child ’ s disability. Moreover, the High Administrative Court dismissed his arguments to that effect as irrelevant (see paragraphs 15 ‑ 16 above). The Constitutional Court also refrained from addressing the matter (see paragraph 18 above).", "86. In view of the foregoing considerations, the Court finds that there is no doubt that the competent domestic authorities failed to recognise the factual specificity of the applicant ’ s situation with regard to the question of basic infrastructure and technical accommodation requirements to meet the housing needs of his family. The domestic authorities adopted an overly restrictive position on the applicant ’ s particular case, by failing to take into account the specific needs of the applicant and his family when applying the condition relating to “basic infrastructure requirements” to their particular case, as opposed to other cases where elements such as the surface area of a flat, or access to electricity, water and other public utilities, might have suggested adequate and sufficient basic infrastructure requirements.", "87. It remains to be seen whether treating the applicant in the same way as any other buyer of real property had an objective and reasonable justification (see paragraphs 70 and 74 above).", "(iv) Whether there was objective and reasonable justification", "88. In justifying the decisions of the domestic authorities, the Government advanced two arguments. They argued, firstly, that the relevant domestic law laid down objective criteria for establishing the existence of basic infrastructure requirements of adequate housing, which left the administrative tax authorities no room for interpretation in individual cases and, secondly, that the applicant had not met the financial requirements for a tax exemption in view of his financial situation.", "89. The Court cannot but observe that the first argument virtually amounts to a concession on the Government ’ s part that the relevant domestic authorities were not empowered to seek a reasonable relationship of proportionality between the means employed and the aim sought to be realised in the applicant ’ s particular case. Therefore, contrary to the requirements of Article 14 of the Convention, they were unable to provide objective and reasonable justification for their failure to correct the factual inequality inherent in the applicant ’ s case (see paragraph 60 above).", "90. Nevertheless, the Court, being well aware that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see Glor, cited above, § 91), notes that the relevant provision of the Real Property Transfer Act is couched in rather general terms referring merely to “basic infrastructure” and “hygiene and technical requirements” (see paragraph 24 above, section 11(9.5) of the Real Property Transfer Act).", "91. The Court further observes that other relevant provisions of domestic law provide some guidance with regard to the question of basic requirements of accessibility for persons with disabilities. Thus, for instance, the by-law on the accessibility of buildings for persons with disabilities and reduced mobility considers the existence of a lift as one of the basic elements of accessibility for persons with disabilities (see paragraph 25 above). However, there is nothing to suggest that any of the competent domestic authorities in the present case gave any consideration to such enactments in the relevant domestic law capable of complementing the meaning of terms under the Real Property Transfer Act.", "92. Moreover, the Court notes that by adhering to the requirements set out in the CRPD the respondent State undertook to take its relevant principles into consideration, such as reasonable accommodation, accessibility and non-discrimination against persons with disabilities with regard to their full and equal participation in all aspects of social life (see paragraphs 34-37 above), and in this sphere the domestic authorities have, as asserted by the Government, implemented certain relevant measures (see paragraph 62 above). In the case in question, however, the relevant domestic authorities gave no consideration to these international obligations which the State has undertaken to respect.", "93. It accordingly follows, contrary to the Government ’ s assertions, that the issue in the instant case is not the fact that the relevant domestic legislation left no room for an individual evaluation of the tax-exemption requests of persons in the applicant ’ s situation. The issue in the present case is rather that the manner in which the legislation was applied in practice failed to sufficiently accommodate the requirements of the specific aspects of the applicant ’ s case related to the disability of his child and, in particular, to the interpretation of the term “basic infrastructure requirements” for the housing of a disabled person (compare Topčić ‑ Rosenberg, cited above, §§ 40-49).", "94. Furthermore, according to the second argument advanced by the Government, the applicant was excluded from the beneficiaries of the real property transfer tax exemption on the ground of his financial situation, and in particular the value of the flat he had previously owned in Zagreb. The alleged reason for this was the fact that the tax exemption under the Real Property Transfer Act was intended to afford financial protection to disadvantaged persons which, in the Government ’ s view, the applicant was not (see paragraph 61 above).", "95. The Court finds that, in principle, the protection of financially disadvantaged persons by means of the relevant measures of tax exemption could be considered as an objective justification for the alleged discriminatory treatment. Indeed, it would appear that the question of the financial situation of an individual applying for a real property transfer tax exemption was cumulatively relevant together with other factors when assessing his or her tax obligation (see paragraph 32 above and also paragraph 24 above, section 11(9.5) and (9.6) of the Real Property Transfer Tax Act).", "96. However, as regards the applicant ’ s particular case, the Court notes that it follows from all the decisions of the competent domestic authorities that the reason for excluding the applicant from the scope of tax exemption was the fact that his flat in Zagreb was considered as meeting the basic infrastructure requirements for the housing needs of his family (see paragraphs 12, 14 and 16 above). The only reference to the financial aspect of the tax-exemption provision under the Real Property Transfer Act (see paragraph 24 above, section 11(9.6) of the Real Property Transfer Act) was made by the Finance Ministry (see paragraph 14 above). However, this was done without any concrete assessment of the relevant financial aspects of the applicant ’ s case, which was a well-established practice of the domestic authorities in other cases where that provision was relied upon (see paragraph 33 above).", "97. Accordingly, accepting the Government ’ s argument to this effect would require the Court to speculate on the concrete relevance of the applicant ’ s financial situation for his tax-exemption request, within the meaning of the relevant domestic law (contrast Glor, cited above, § 90). The Court is therefore unable to accept that the protection of financially disadvantaged persons was the reason justifying the impugned discriminatory treatment of the applicant.", "98. In view of the above, and in particular in the absence of the relevant evaluation of all the circumstances of the case by the competent domestic authorities, the Court does not find that they provided objective and reasonable justification for their failure to take into account the inequality inherent in the applicant ’ s situation when making an assessment of his tax obligation.", "99. The Court therefore finds that there has been a violation of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.", "100. This makes it unnecessary for the Court to consider separately the applicant ’ s complaint under Article 1 of Protocol No. 1 taken alone (see, for example, Zeman v. Austria, no. 23960/02, § 42, 29 June 2006).", "II. ALLEGED VIOLATION OF ARTICLES 8 AND 14 OF THE CONVENTION", "101. The applicant complained of a breach of the right to respect for his private and family life and his home related to the unfair and discriminatory application of domestic tax legislation. He relied on Articles 8 and 14 of the Convention.", "102. The Government contested those allegations.", "103. In the circumstances of the present case, the Court is of the view that the inequality of treatment of which the applicant claimed to be a victim has been sufficiently taken into account in the above assessment that has led to the finding of a violation of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1. Accordingly, it finds that – while this complaint is also admissible – there is no cause for a separate examination of the same facts from the standpoint of Articles 8 and 14 of the Convention (see, for example, Mazurek v. France, no. 34406/97, § 56, ECHR 2000 ‑ II, and Efe, cited above, § 55).", "III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 12", "104. The applicant further complained that he was discriminated against by the manner of application of the tax legislation which failed to distinguish his situation from the general situation falling under the relevant provisions on tax exemption. He relied on Article 1 of Protocol No. 12.", "105. The Government contested that argument.", "106. The Court has already found that the manner of application of the tax legislation which failed to distinguish the applicant ’ s situation from the general situation falling under the relevant provisions on tax exemption amounted to discrimination in breach of Article 14 taken in conjunction with Article 1 of Protocol No. 1.", "107. Having regard to that finding, the Court considers that it is not necessary to examine separately whether, in this case, there has also been a violation of Article 1 of Protocol No. 12 to the Convention (compare Sejdić and Finci, cited above, § 51, and Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, §§ 114-15, 9 December 2010).", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "108. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "109. The applicant claimed 11,010.00 euros (EUR) in respect of pecuniary damage concerning the amount of tax he had been obliged to pay, and EUR 10,000 in respect of non-pecuniary damage.", "110. The Government considered the applicant ’ s claim excessive, unfounded and unsubstantiated.", "111. As to the pecuniary damage claimed, the Court, having regard to its findings concerning Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 (see paragraph 99 above) concerning the discrimination against the applicant related to the application of the domestic tax legislation, considers that it cannot speculate on the extent of the applicant ’ s domestic tax obligations, particularly related to the question whether his financial situation justifies a tax exemption (see paragraphs 95 ‑ 97 above). Thus, being unable to assess the applicant ’ s claim for pecuniary damage, the Court refers to the opportunity available to the applicant to request the reopening of the proceedings in accordance with section 76 of the Administrative Disputes Act (see paragraph 28 above), which would allow for a fresh examination of his claim at the domestic level.", "112. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage which is not sufficiently compensated by the finding of a violation. Ruling on an equitable basis, it awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount.", "B. Costs and expenses", "113. The applicant also claimed EUR 11,652.49 and 4,900 pounds sterling (approximately EUR 6,800) for the costs and expenses incurred before the domestic courts and for those incurred before the Court.", "114. The Government considered the applicant ’ s claim unfounded and unsubstantiated.", "115. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 11,500 covering costs under all heads, plus any tax that may be chargeable.", "C. Default interest", "116. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "THE CIRCUMSTANCES OF THE CASE", "7. The applicants were born in 1962 and 1939 respectively and live in Armaçao dos Buzios ( Brazil ). The second applicant is the first applicant ’ s mother and guardian.", "8. The first applicant has been deaf since birth, speaks her mother tongue with great difficulty and has no capacity of discernment on account of a severe disability which has required comprehensive therapeutic provision throughout her life. She was granted an extraordinary invalidity insurance pension ( “ enhanced pension for congenitally disabled persons ” ) as from 1 September 1980, and a disability allowance as of 1 September 1997. From January 2009 to March 2010 (15 months ) the Cantonal Social Insurance Office of the Canton of Geneva granted the first applicant allowances to a total of CHF 39, 900 ( approximately 35, 400 euros at current rates ).", "9. The legal provisions applicable in this sphere state that beneficiaries of the extraordinary pension and the disability allowance, which are non- contributory benefits, must have a private address and their habitual residence in Switzerland ( see paragraphs 21 and 25 below ).", "10. During review proceedings brought in July 2009, the Geneva Canton Disability Insurance Office obtained information, in particular, from the second applicant and from Michel Belli, the first applicant ’ s divorced parents.", "11. In fact, the second applicant had decided to settle in Brazil with her new husband, a French national – with whom the applicants submit they have been living since 1982 – in order to purchase and run a hotel. The first applicant, who had been placed under the second applicant ’ s parental authority in summer 2009, had been living with her in Brazil for several years, visiting her father in Switzerland for about three weeks every three months.", "12. By decision of 3 December 2010, the Disability Insurance Office for Insured Persons Resident Abroad (OAIE) rescinded the first applicant ’ s entitlement to the extraordinary invalidity pension and the disability allowance with effect from 1 April 2010.", "13. On 5 October 2012 the Federal Administrative Court dismissed the applicants ’ appeal against that decision. In short, the court held that the first applicant was no longer entitled to the benefits in question because she did not have a private address or her habitual residence in Switzerland.", "14. Exercising their right to lodge a public -law appeal, the applicants invited the Federal Court to set aside the judgment of the Federal Administrative Court and the decision of 3 December 2010, and to order the OAIE to pay “uninterruptedly” to the first applicant, in respect of costs and expenses, the extraordinary invalidity pension and the disability allowance with 5% annual interest.", "The applicants submitted that the withdrawal of the benefits on the grounds that they were non- exportable amounted to a disproportionate and therefore unjustified interference with their private and family life, as well as their private home as protected by Article 8 of the Convention. If the withdrawal were upheld, the first applicant would be forced to return to Switzerland in order to receive the benefits which were necessary for her quality of life, which meant that either she would have to live separately from her mother or the latter would be obliged, in order to avert such separation, to return to Switzerland to live with her daughter, which would entail separation from her current husband. The right to respect for the home would also be affected, since the insured person would be forced to move to Switzerland. The applicants took the view that the said infringement was also discriminatory within the meaning of Article 14 of the Convention, read in conjunction with Article 8, because the benefits had been withdrawn for reasons linked to the nature of the insured person ’ s disability: she had been born with a health impairment and had therefore not been able to contribute to the disability insurance scheme before the disability had occurred.", "15. By judgment of 15 April 2013, notified on 26 April 2013, the Federal Court dismissed the appeal lodged by the two applicants. In short, the Federal Court found that the withdrawal of the right to an extraordinary invalidity pension and a disability allowance on account of the lack of a private address and residence in Switzerland did not fall within the ambit of Article 8 of the Convention. In that connection, the court emphasised that the benefits in question had not pursued the aim of protecting family life or intervening in personal or family relations.", "“ 4.1 ... Art. 8 para. 1 ECHR also protects the individual ’ s right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect of the home are not confined to concrete or physical breaches, such as unauthorised entry into a person ’ s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference ( see ECtHR judgment Moreno v. Spain, 16 November 2004, ECHR Reports 2004-X p. 307 § 53).", "4.2 According to the constant case-law of the ECtHR, Art. 8 ECHR does not give rise to direct entitlement to social insurance benefits. The Court has indeed acknowledged that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may, in certain circumstances, be positive obligations inherent in effective respect for private or family life (see, among other authorities, Botta, § 33). However, it has held that Art. 8 ECHR does not impose on the Contracting States any obligation to provide specific financial assistance or to guarantee a specific standard of living ( see Petrovic v. Austria, 27 March 1998, Reports 1998-II p. 579 § 26 et seq., and the inadmissibility decision in Pancenko v. Latvia, 28 October 1999). That provision places no restriction on the Contracting States ’ freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme ( see Stec and Others v. the United Kingdom, 12 April 2006, ECHR Reports 2006-VI p. 159, § 53). The ECtHR has thus considered that a refusal to grant a parental leave allowance cannot amount to a failure to respect family life, since Article 8 of the Convention does not impose any positive obligation on States to provide the financial assistance in question ( see Petrovic, § 26).", "Consequently, given that Art. 8 ECHR does not give rise to entitlement to a specific standard of living or to a positive obligation to provide a social insurance benefit, the withdrawal of the benefits in question owing to the insured person ’ s departure from Switzerland does not amount to an interference with private or family life. Nor does this measure impinge on the necessary respect for the home within the meaning of Art. 8 ( 1 ) ECHR and the European Court ’ s case-law, which the appellants have interpreted broadly, as it does not involve any practical infringement of the area in which their private and family life develops. Furthermore, it is plain that the appellants were not impeded by the Swiss authorities in their choice of way of life and the development of their family relations in Switzerland or abroad; in particular, they were not prevented from maintaining family and social relations in this country, from settling in it or leaving it as they wished.", "It should be pointed out here that in all cases where the European Court has considered a denial of specific social insurance benefits in the light of the rights secured under the ECHR, it has relied on Protocol No. 1 of 20 March 1952 to the ECHR, as, for example, in Moskal v. Poland, 15 September 2009, § § 93 et seq ., cited by the appellants ( see also Stec and Others, § 53, and Koua Poirrez v France, 30 September 2003, ECHR Reports 2003-X p. 45 § § 43 et seq. ). Since Switzerland has not ratified that protocol, it is not bound by the Court ’ s case-law concerning the non- discriminatory granting of social security benefits based on Article 1 of the protocol.", "4.3 Contrary to the appellants ’ subsequent submissions, the withdrawal of the social insurance benefits in question does not, from a thematic perspective, fall within the scope of Art. 8 ECHR, which would enable them to pray in aid Art. 14 ECHR. That provision, which complements the other substantive provisions of the ECHR, can apply in the absence of an infringement of those provisions, provided that the facts of the case fall within the ambit of one or more of them (see, among many other authorities, Konstantin Markin v Russia, 22 March 2012, § 129 ...).", "Generally speaking, the insurance invalidity benefit provided for in Swiss law is a social insurance benefit designed to offset the loss of earnings sustained by an insured person on account of the effects of a health impairment on his or her ability to work, or to compensate for an inability to perform everyday actions as a result of a health problem. The extraordinary invalidity pension pursues the same aim for individuals who have been disabled since birth ( or have become disabled without having acquired entitlement to an ordinary pension ). As regards the invalidity allowance, it is awarded on the basis of a long-term need for assistance by others or for the personal supervision of the insured person concerned in performing ordinary everyday actions on account of a health impairment.", "Those social insurance benefits are paid regardless of the beneficiaries ’ lifestyle, that is, irrespective of whether they live alone, with family or in an institution ( with certain exceptions irrelevant to the present case: see, for example, section 42 ( 5 ) LAI and section 35bis ( 3 ) RAI). From that angle, the benefits are, precisely, intended to enable adult beneficiaries to lead as autonomous a life as possible, without having to depend on help and assistance from members of their families. They are not designed to promote family life or to intervene in personal or family relationships. Contrary to the examples cited by the appellants, and according to a legal opinion to which they refer (Matthias Kradolfer, op. cit., p. 73), to wit a parental leave allowance ( see Petrovic, § 27) and an ‘ assistance pension ’ paid to the parents of a disabled child ( see Moskal v Poland § 93), the Swiss extraordinary invalidity pension and disability allowance are not aimed at enabling one of the parents to remain at home in order to look after their (adult) child. Accordingly, the withdrawal of those benefits on account of the non-fulfilment of the criterion of ordinary residence in Switzerland laid down in domestic law does not fall within the scope of Article 8 ECHR. ”", "16. In declaring Article 8 of the Convention inapplicable in the instant case the Federal Court saw no need to assess the existence of discrimination within the meaning of Article 14 of the Convention.", "RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE", "A. Non - contributory benefits in Swiss law", "1. Preliminary remarks", "17. It should be pointed out at the outset that Switzerland has not concluded any international agreement with Brazil concerning disability benefits.", "18. One of the main differences between ordinary pensions and, as in the instant case, extraordinary pensions and the disability allowance, is that the latter are granted on the condition of having a private address and ordinary residence in Switzerland. It follows that ordinary invalidity pensions, as contributory benefits, can be exported to a foreign country ( under the exportation principle ) and extraordinary invalidity pensions and the disability allowance cannot. The Report published by the Federal Commission of Experts for the introduction of disability insurance on 30 November 1956 explained that extraordinary pensions, as non- contributory benefits, were not paid abroad because they were primarily funded from public monies, to which persons residing outside Switzerland do not contribute.", "19. Section 17 (2) of the Federal Law on Social Insurance ( general section ) (LPGA) of 6 October 2000 provides that :", "“ any long-term benefit granted pursuant to a decision which has become final shall, ex officio or on request, be increased or reduced accordingly, or else withdrawn, where the conditions for its grant have significantly changed. ”", "2. Functional disability allowance (Hilflosenentschädigung)", "20. Pursuant to section 9 of the LPGA, a person suffering from functional disability is anyone who, on account of a health impairment, needs permanent assistance from another person or personal supervision in order to perform ordinary everyday actions.", "21. Section 42 (1) of the Federal Law on Disability Insurance of 19 June 1959 (LAI) provides:", "“ insured persons suffering from functional disability ... who have their private address and ordinary residence ... in Switzerland are entitled to a functional disability allowance. ”", "22. Under section 77 (2) LAI, the functional disability allowance is funded exclusively by the Confederation. It is a non - contributory benefit.", "23. Entitlement to a functional disability allowance does not depend on whether or not the person concerned is in receipt of an invalidity insurance benefit. The allowance is a cash benefit assessed according to the person ’ s needs in terms of assistance and supervision, irrespective of actual costs and actual recourse to the services of third persons.", "3. Extraordinary disability insurance pension ( “ pension increased in respect of persons disabled from birth ” )", "24. Prior to 1 January 2008, a date which is decisive in the present case, persons with disabilities were eligible for an ordinary invalidity insurance pension if, at the onset of their invalidity, they had been contributing for at least one year. Persons who had not yet been subject to compulsory contributions for a full year were entitled to an extraordinary invalidity insurance pension.", "25. Section 39 LAI mentions that the entitlement of Swiss nationals to extraordinary pensions is governed by the provisions of the 20 December 1946 Federal Law on pension insurance and survivors (LAVS). Section 42 LAVS provides :", "“ 1 Swiss nationals having their private home and ordinary residence ... in Switzerland are entitled to an extraordinary pension if they have the same number of years ’ insurance as other persons in the same age bracket but are not entitled to an ordinary pension because they have not been subject to compulsory payment of contributions for at least one year. ....", "2 Any insured person who is granted a pension must personally satisfy the requirement of a private home and ordinary residence in Switzerland. ” ...", "26. As regards the “ ordinary residence” requirement, section 13 (2 ) LPGA provides that", "“ a person is deemed to have his or her ordinary residence at the place where he or she resides or has resided for a period of time, regardless of the length of that period of time. ”", "27. Section 13 (1) LPGA refers to the Swiss Civil Code of 10 December 1907, the relevant provisions of which provide :", "Article 23 CC : Private home ( domicile ) ( Definition )", "“ 1 A person ’ s private home is the place where he or she resides with the intention of settling there; residence in a training institution or accommodation in an educational institution, a nursing or old people ’ s home, a hospital or a detention centre does not per se constitute a private home.", "2 No one may have several private homes simultaneously. ... ”", "Article 26 CC: Private home of adults under general guardianship orders", "“ The private home of adults under general guardianship orders is the headquarters of the adult protection agency. ”", "B. Non-contributory benefits in international social security law", "28. Article 9 of the International Covenant on Economic, Social and Cultural Rights of 16 December 1966, which came into force in respect of Switzerland on 18 September 1998, enshrines the right to social security. Nevertheless, in its General Comment No. 19 of 4 February 2008 (E/C.12/GC/19), the Committee on Economic, Social and Cultural Rights notes the following as regards the international implementation of the obligations deriving from the right secured (italics added):", "“ 56. States parties should ensure that the right to social security is given due attention in international agreements and, to that end, should consider the development of further legal instruments. The Committee notes the importance of establishing reciprocal bilateral and multilateral international agreements or other instruments for coordinating or harmonizing contributory social security schemes for migrant workers. ... ”", "29. Article 32 (1) of ILO Convention No. 128 of 29 June 1967 concerning Disability, Old-Age and Survivors ’ Benefits, which came into force in respect of Switzerland on 13 September 1978, permits the suspension of", "“ a benefit to which a person protected would otherwise be entitled ... (a) as long as the person concerned is absent from the territory of the Member, except, under prescribed conditions, in the case of a contributory benefit. .... ” [ italics added ]", "30. Pursuant to Article 11 of the European Convention on Social Security of 14 December 1972, designed as an instrument coordinating the Council of Europe social security schemes ( Council of Europe Treaty Series (CETS ) no. 078, not ratified by the Swiss Confederation, the following are excluded from the scope of that convention ( italics added ):", "“ (a) special non-contributory benefits granted to invalids who are unable to earn a living; ( b ) special non-contributory benefits granted to persons not entitled to normal benefits; .... ”", "C. Non- contributory benefits under comparative law", "31. Comparison of legislation in thirty-four member States of the Council of Europe (Albania, Armenia, Austria, Belgium, Bosnia-Herzegovina, Bulgaria, Cyprus, Croatia, Estonia, France, Germany, Greece, Hungary, Ireland, Iceland, Italy, Liechtenstein, Lithuania, the former Yugoslav Republic of Macedonia, the Republic of Moldova, Monaco, the Netherlands, Poland, Portugal, Romania, the Russian Federation, San Marino, Serbia, Slovenia, Spain, Sweden, Turkey, Ukraine and the United Kingdom) and three non-member States (Canada, Hong Kong and the United States) led to the following conclusions.", "(1) The general rule in seventeen of the States compared is that contributory pensions are exportable, but that permanent residence is a precondition for entitlement to non- contributory benefits ( Albania, Armenia, Austria, Belgium, Canada, the United States, France, Germany, Hong Kong, Ireland, Italy, Lithuania, Poland, Portugal, San Marino, Turkey and Ukraine). Some of those States, however, lay down special rules on the exportability of non ‑ contributory benefits. In Austria and Germany, people with severe disabilities may apply for a “ severely disabled pass ” ( Schwerbehindertenausweis ) stating their degree of disability and facilitating the receipt of benefits. Foreign residents can also obtain this pass if there is a “sufficient link” with the State of origin. Italy allows beneficiaries of some benefits to retain them abroad, albeit only for six months or for serious medical reasons. Poland also permits the exportation of specific benefits in the event of a temporary absence from the country. Belgium and Ireland allow for derogations from the general rule of non- exportability, particularly in cases of extreme necessity. In Portugal, exportation is exceptionally possible where the disabled person is accompanying a close relative working abroad in the Portuguese national interest.", "(2) The general rule in eighteen of the States compared is that disability benefits are non- exportable, be they contributory or not ( Bosnia-Herzegovina, Bulgaria, Cyprus, Estonia, Greece, Hungary, Iceland, Liechtenstein, the former Yugoslav Republic of Macedonia, the Republic of Moldova, Monaco, the Netherlands, Romania, the Russian Federation, Serbia, Slovenia, Sweden and the United Kingdom ).", "(3) Two States fall into neither of those categories inasmuch as the exportability of a benefit is decided on a case -by- case basis, regardless of whether the benefit is contributory or not ( Croatia and Spain ).", "(4) Benefits may, however, be exportable if the State in question has concluded a bilateral international agreement on that subject.", "(5) Furthermore, EU Member States must comply with the relevant provisions of EU law set out below as regards the exportation of benefits within the European Union.", "D. Non-contributory benefits in European Union law", "32. Social security benefits are coordinated within the European Union. Such coordination is governed by the principle of the exportability of social welfare benefits between EU countries. However, European law does not address the matter of the exportability of benefits to third States, and the legislative powers in this field and competence to conclude international agreements with third States remain at the national level.", "33. The original texts on social security coordination in the European Union ( such as Regulation No. 1408/71/EEC of 14 June 1971 ) make no mention of special non-contributory cash benefits. Decisions were thus taken against a number of States which had refused to pay benefits to persons not residing in their territory. It was not until the enactment of Regulation No. 1247/92/EC that the category of special non- contributory cash benefits was created, specifying, within the ambit of Regulation No. 1408/71/EEC of 14 June 1971, that those benefits would not be exportable.", "34. The Court of Justice of the European Union subsequently developed case-law concerning the conditions under which a benefit qualified as a special non- contributory cash benefit. Those conditions have now been codified in Regulation No. 883/2004/EC of 29 April 2004 (Article 70 paragraph 2) :", "“ 2. For the purposes of this Chapter, ‘ special non-contributory cash benefits ’ means those which:", "(a) are intended to provide either:", "(i) supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in Article 3(1), and which guarantee the persons concerned a minimum subsistence income having regard to the economic and social situation in the Member State concerned;", "or", "(ii) solely specific protection for the disabled, closely linked to the said person ’ s social environment in the Member State concerned,", "and", "(b) where the financing exclusively derives from compulsory taxation intended to cover general public expenditure and the conditions for providing and for calculating the benefits are not dependent on any contribution in respect of the beneficiary. However, benefits provided to supplement a contributory benefit shall not be considered to be contributory benefits for this reason alone,", "and", "(c) are listed in Annex X. ”", "35. The Regulation also states that disability benefits are subject to it, pursuant to Article 3 § 1 (c) :", "Article 3", "“ Matters covered", "1. This Regulation shall apply to all legislation concerning the following branches of social security:", "(c) invalidity benefits; ... ”", "36. Article 70 (4) of the Regulation sets out the principle that special non - contributory cash benefits are not exportable :", "“ 4. The benefits referred to in paragraph 2 shall be provided exclusively in the Member State in which the persons concerned reside, in accordance with its legislation. Such benefits shall be provided by and at the expense of the institution of the place of residence. ”", "37. Member States of the European Union must list the benefits which they grant and which satisfy the conditions governing special non- contributory benefits set out in Annex X to Regulation No. 883/2004/ EC of 29 April 2004 in order to obtain any derogation to the exportability of benefits.", "38. However, the Court of Justice of the European Union does not verify whether the benefits listed in Annex X correspond to special non- contributory cash benefits. It transpires from its case-law that :", "(i) if the benefit is considered as a sickness cash benefit, it must be granted irrespective of the Member State in which the recipient is resident ( see CJEU, 5 May 2011, European Commission v. Federal Republic of Germany, C-206/10, para. 30); however,", "(ii) the grant of benefits closely linked with the social environment may legitimately be made subject to a condition of residence in the Member State concerned, for example if it is based on the minimum wage or the standard of living in that State (see CJEU, 5 May 2011, Ralph James Bartlett and Others v. Secretary of State for Work and Pensions, C-537/09, para. 38).", "39. The Court of Justice has also restricted the possibility of invoking the residence condition against an EU citizen in respect of a special non- contributory cash benefit in cases involving freedom of movement. In a case concerning a man who was in receipt of benefits in the Netherlands until he moved to Belgium, when they were no longer paid even though he continued to work in the Netherlands, where he had also retained all his economic and social ties, the Court considered that the implementation of the conditions set out in the European regulation should not impinge on the rights deriving from the freedom of movement of workers beyond what was required to attain the legitimate object pursued by national law (see CJCE, Grand Chamber, 11 September 2007, H. v. Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen, C-287/05, para. 56).", "E. Applicability of Regulation No. 883/2004/ EC to Switzerland", "40. Regulation No. 883/2004/ EC of 29 April 2004 has been applicable to Switzerland in its relations with the Member States of the European Union since 1 April 2012, in the framework of the Agreement on freedom of movement of persons between Switzerland and the European Union. The following Swiss benefits are listed in Annex X to the Regulation :", "“1. Supplementary benefits (Federal Supplementary Benefits Act of 6 October 2006 ) and similar benefits provided for under cantonal legislation.", "2. Pensions in the case of hardship under invalidity insurance (Article 28 sub-paragraph 1a of the Federal Invalidity Insurance Act of 19 June 1959, as amended on 7 October 1994).", "3. Non-contributory mixed benefits in the event of unemployment, as provided for under cantonal legislation.", "4. Non-contributory extraordinary invalidity pensions for disabled persons (Article 39 of the Federal Invalidity Insurance Act of 19 June 1959) who have not been subject, before their incapacity for work, to the Swiss legislation on the basis of an activity as an employed or self-employed person. ”", "41. In it judgment ATF 141 V 530 of 11 September 2015, the Federal Court pointed out that extraordinary invalidity pensions satisfied all the criteria to be considered as special benefits within the meaning of Article 70 § 2 of Regulation No. 883/2004.", "“ 7.3.3 In order to justify its position vis-à-vis the European institutions, the Swiss Confederation first of all observed that in order to be eligible for an ordinary disability insurance pension, insured persons had to have paid contributions for at least three years at the time when they became unfit for work. Persons who have been disabled since birth or childhood cannot fulfil that condition, given that they were unable to work before the age at which they would have begun to pay contributions. That is why such persons were entitled to a special pension corresponding to the amount of the minimum ordinary invalidity pension. That pension was granted to persons over the age of eighteen living in Switzerland ( see proposal of 28 June 2010 cited above, pp. 8 and 9).", "According to the explanations provided by the Swiss Confederation, it was justifiable to include the extraordinary invalidity insurance pension in the list of special non-contributory cash benefits, because it fulfilled all the criteria for being considered as a special non-contributory benefit within the meaning of Article 4 para. 2 bis of Regulation No. 1408/71 and the relevant CJEC case-law. It was first and foremost a mixed benefit : on the one hand it had specific social- security features in that the persons concerned had a clearly defined right to that benefit and it covered the invalidity risk; on the other hand it was also linked to social assistance in that it was not based on periods of work or contribution and was not aimed at mitigating a situation of need by providing a minimum living wage to a socially underprivileged group ( young persons with disabilities ). The extraordinary pension was also a special benefit, since it was an alternative allowance aimed at persons who did not fulfil the insurance conditions to obtain an ordinary invalidity pension; it was closely linked to the socio- economic situation in Switzerland, since it corresponded to the minimum pension in that State. Finally, the extraordinary pension was non- contributory, as it was not funded from contributions but exclusively by the Confederation ( see proposal of 28 June 2010 cited above, p. 8).”", "42. The Federal Court also confirmed that disability allowances ( section 42 ( 1 ) LAI) constitute special non - contributory cash benefits (ATF 142 V 2, 17 December 2015).", "F. United Nations Convention on the Rights of Persons with Disabilities", "43. The relevant provisions of the UN Convention on the Rights of Persons with Disabilities of 13 December 2006, ratified by Switzerland on 15 April 2014, read as follows :", "Article 2 ( 3 ) ( definitions )", "“ ‘ Discrimination on the basis of disability ’ ” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation ...", "Article 3: General principles", "The principles of the present Convention shall be:", "(a) Respect for inherent dignity, individual autonomy including the freedom to make one ’ s own choices, and independence of persons;", "(b) Non-discrimination;", "(c) Full and effective participation and inclusion in society;", "(d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;", "(e) Equality of opportunity;", "(f) Accessibility;", "(g) Equality between men and women;", "(h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.", "Article 5 : Equality and non-discrimination", "1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.", "2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. ...", "Article 19: Living independently and being included in the community", "States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:", "(a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;", "(b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;", "(c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.", "Article 28: Adequate standard of living and social protection", "1. States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.", "2. States Parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right, including measures:", "...", "b) To ensure access by persons with disabilities, in particular women and girls with disabilities and older persons with disabilities, to social protection programmes and poverty reduction programmes;", "...", "e) To ensure equal access by persons with disabilities to retirement benefits and programmes. ”" ]

[ "THE LAW", "ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH aRTICLE 8 OF THE CONVENTION", "44. The applicants complained of a violation of Article 14 taken in conjunction with Article 8 of the Convention, on the grounds that the requirement of a private home ( domicile ) in Switzerland was directly linked to the nature of the first applicant ’ s disability. They submitted that the decisive criterion for the first applicant to be eligible for the benefits in issue, that is to say having a private home in Switzerland, depended, in a discriminatory manner, on the type of disability – congenital – suffered by the applicant, since disabled persons who had been able to pay contributions were able to export their pensions. Those two provisions provided :", "Article 14", "“ The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.", "Article 8", "1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.", "2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. ”", "A. Admissibility", "45. The Government invited the Court to declare inadmissible the complaint under Article 14 read in conjunction with Article 8, as their main submission, as being incompatible ratione materiae with the Convention pursuant to Article 35 § 3 ( a) of the Convention, and in the alternative, as being manifestly ill-founded.", "46. The applicants considered the complaint admissible.", "47. The Court holds that the Government ’ s argument that Article 8 is not applicable to the present case, which would render the complaint under Article 14 inadmissible ratione materiae, goes to the merits of the case. It further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It should therefore be declared admissible.", "B. Merits", "1. Applicability of Article 14 read in conjunction with Article 8 of the Convention", "(a) The parties ’ submissions", "(i) The Government", "48. According to the Government, Article 8 of the Convention does not give rise to direct entitlement to social insurance benefits outside Switzerland.", "49. The Government acknowledged that the Court had not ruled out the possibility of certain social benefits falling within the scope of Article 8 of the Convention. The Government cited, in particular Petrovic v. Austria (27 March 1998, §§ 26 et seq ., Reports of Judgments and Decisions 1998 ‑ II), concerning a parental leave allowance, and Moskal v. Poland (no. 10373/05, § 93, 15 September 2009), concerning an early retirement pension for the parents of a disabled child, and submitted that the benefits at issue in the present case were not designed to enable one of the parents to remain at home to look after children or to promote family life: they were intended to allow adult beneficiaries to lead an autonomous, independent life.", "50. Referring to Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 53, ECHR 2006 ‑ VI, the Government emphasised that the Convention did not restrict the Contracting States ’ freedom to decide whether or not to put in place a given social security scheme. Furthermore, even if such a scheme existed, the Government submitted that the right to a social benefit was a pecuniary right for the purposes of Article 1 of Protocol No. 1 to the Convention, which was not binding on Switzerland since it had not ratified it.", "51. The Government further emphasised that the recruitment of a home-care nurse was not impossible given the current incomes of the second applicant and her husband, who had, moreover, defrayed the cost of medical provision thus far, having regard to the cost of living in Brazil.", "52. The Government took the view that since the facts of the case did not fall within the scope of any Convention provision, Article 14 of the Convention was also applicable to the present case.", "( ii ) The applicants", "53. The applicants submitted that Article 8 of the Convention was applicable to the present case because the measures taken by the State were jeopardising the first applicant ’ s life and health, both applicants ’ autonomy and private life, and also their overall family unity.", "54. The applicants denied invoking any right to live abroad; the second applicant, whom the first applicant needed because her father was unable to look after her, had followed her husband to Brazil out of financial necessity, in order to manage a hotel, which they were now attempting, without much success, to sell before returning to Switzerland.", "55. The applicants alleged in particular that they were facing serious difficulties in organising their daily private lives, given that the first applicant could no longer benefit from the help of a trained assistant and that healthcare had to be provided by the second applicant – an elderly woman – whose ability to manage her hotel was being restricted. The applicants, referring to Glor v. Switzerland, no. 13444/04, § 54, ECHR 2009, also argued that a decision with mainly pecuniary consequences stemming from a disability fell within the ambit of Article 8 of the Convention.", "56. The applicants, citing the judgments delivers in Petrovic v. Austria, cited above, §§ 27-29, and Moskal v. Poland, cited above, § 93, also submitted that family life was relevant because of the relationship of dependency between the first applicant, who had no capacity of discernment, and the second applicant, who held parental authority. The applicants added that the affective relationship between the first applicant and her stepfather was real and should be protected.", "(b) The Court ’ s assessment", "57. As regards protection against discrimination, it should be remembered that Article 14 only complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions ( see, among many other authorities, Sahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003-VIII). The application of Article 14 does not presuppose a breach of those provisions. It is necessary and sufficient that the facts at issue fall within the ambit of at least one of the provisions of the Convention or its Protocols (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 72, ECHR 2013 (extracts)).", "58. The Court also reiterates that the Convention does not guarantee, as such, the right to an old-age pension or any social benefit of a particular amount ( see Yuri Romanov v. Russia, no. 69341/01, § 45, 25 October 2005). Moreover, the Convention does not confer on an individual a right to enjoy any given standard of living ( see Vassilenkov v. Ukraine, no. 19872/02, § 18, 3 May 2005).", "59. As regards the “ family life” aspect of Article 8, the Court observes from the outset that that concept does not include only social, moral or cultural relations; it also comprises interests of a material kind ( see Merger and Cros v. France, no. 68864/01, § 46, 22 December 2004).", "60. As regards the “ private life ” aspect of Article 8, the Court has already had occasion to observe that it is a broad term which is not susceptible to exhaustive definition. It can sometimes cover the physical and social integrity of the person ( see Glor v. Switzerland, no. 13444/04, § 52, ECHR 2009; Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I; and Otgon v. the Republic of Moldova, no. 22743/07, 25 October 2016).", "61. The “private life” concept also covers the right to personal development and to establish and develop relationships with other human beings and the outside world ( see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ I). Finally, the Court has held that the notion of personal autonomy is an important principle underlying the interpretation of the guarantees of Article 8 ( see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III, and Haas v. Switzerland, no. 31322/07, § 51, ECHR 2011).", "62. In a recent case against Switzerland, the Court considered Article 8 applicable under its “private” aspect, in so far as that provision guarantees the right to personal development and personal autonomy. To the extent that the method of calculating the degree of disability used in the case placed individuals wishing to work part-time at a disadvantage compared with those in full-time paid work and those who did not work at all, the Court could not rule out that this method of calculating disability would limit persons falling into the first of these categories in their choice as to how to divide their private life between work, household tasks and childcare ( see Di Trizio v. Switzerland, no. 7186/09, § 64, 2 February 2016 ).", "63. As regards the present case, the Court acknowledges that Article 8 or the Convention clearly cannot be interpreted as imposing a positive obligation on States to continue to pay social benefits regardless of ordinary residence. On the other hand, the Court also reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see, among many other authorities, Kimlya and Others v. Russia, nos. 76836/01 and 32782/03, § 86, ECHR 2009, and Artico v. Italy, 13 May 1980, § 33, Series A no. 37). In other words, therefore, regard must be had to the specific features of the individual case, particularly the social and family situations in which the applicants find themselves.", "64. The applicants relied on respect for their private life, family unity and their autonomy. They argued that the first applicant needed the support of the second applicant, who is living in Brazil with her husband for professional reasons. Furthermore, the first applicant has been under the parental authority of the second applicant since 2009.", "65. The Court reiterates from the outset that although both applicants are adults, the first one has been deaf since birth, has difficulty speaking her mother tongue and has no capacity of discernment on account of a severe disability which has required comprehensive therapeutic provision throughout her life ( see paragraph 8 above ). The requisite care is, precisely, provided by the second applicant, who is not only her mother but also her guardian ( see paragraph 7 above ). Accordingly, the Court considers that in this situation involves “additional factors of dependence, other than normal emotional ties”, which exceptionally bring into play the guarantees that derive from the “family life” aspect of Article 8 between adults ( see, mutatis mutandis, Emonet and Others v. Switzerland, no. 39051/03, § 80, 13 December 2007, and Kwakye-Nti and Dufie v. the Netherlands (dec.), no. 31519/96, 7 November 2000).", "66. The Court considers that the refusal to pay the pension abroad was liable to affect the organisation of the applicants ’ family life ( see, to that effect, Di Trizio, cited above, § 62). Indeed, they face a situation which requires taking difficult decisions, all of which are likely to impact on their family life: either they decide to enjoy their family life in Brazil, where the second applicant is married, with the consequence of losing entitlement to the benefits; or they decide to retain their entitlement to the pension; in the latter hypothesis, the second applicant must choose between separation from her daughter, over whom she holds parental authority but who must of necessity live in Switzerland in order to receive the benefits, and separation from her husband, who cannot, for professional reasons, be expected to leave Brazil.", "67. Having regard to the foregoing considerations, the applicants ’ complaint falls within the ambit of Article 8. It follows that Article 14 of the Convention, read in conjunction with Article 8, is applicable in the present case.", "2. Whether there has been a violation of Article 14 read in conjunction with Article 8", "(a) The parties ’ submissions", "(i) The applicants", "68. Citing the judgment delivered in the case of Glor, the applicants alleged a violation of Article 14 of the Convention in relation to Article 8 : they argue that the infringement of their private and family life is discriminatory as compared with other disabled persons because the benefits in issue would not have been withdrawn if the first applicant, disabled from birth, had become disabled as the result of an accident sustained as an adult, after having contributed to the social insurance funds, such that in the latter case the applicants would not have been forced to remain in Switzerland on the basis of a “fiscal” criterion. In other words, the question was whether or not the disabled person in question had contributed to the funding of the social benefits. Persons unfortunate enough to have been born with a disability were obliged to retain their habitual residence in Switzerland.", "69. The applicants submitted that the ordinary pension was an insurance benefit, whereas the extraordinary pension granted to persons disabled from birth or to persons having become disabled before their 23 rd birthday was considered as a form of social aid funded exclusively by the Swiss Confederation rather than from insured persons ’ contributions. They noted that it had been a political decision based on purely financial considerations which had led the Swiss legislature to determine that only the ordinary pension would be exportable, in the face of opposition from organisations defending the rights of persons with disabilities. In particular, at the time of the 5 th revision of the LAI, whereas an initial draft had included the possibility of exporting the extraordinary pension, the final draft had dropped all mention of it.", "70. The applicants also alleged that the organisations protecting persons with disabilities had constantly emphasised that authorisation to export extraordinary pensions would relieve the financial burden on the public authorities. In view of the low level and high costs of treatment in Switzerland, beneficiaries of the pension usually had to have recourse to supplementary benefits financed by the ( Federal and / or Cantonal ) authorities. They added that authorising such exportation would help alleviate public finances.", "71. According to the first applicant, referring in particular to Covenant I ( see paragraph 28 above ), the European consensus was that special attention should be paid to disabled persons as a vulnerable category in order to promote their integration. They added that the recent social and legal progress in the Council of Europe, in the Court ’ s case-law and in the international texts towards enhanced protection of the dignity and autonomy of persons with disabilities, of their right to maintain control over their own lives and of their right to live in the community rather than in an institution, was beyond dispute.", "72. The applicants considered that the Swiss system, in principle and per se, created a discriminatory situation to the detriment of the freedom of movement, autonomy and the family life of persons disabled and powerless since birth, and, by extension, of their families, where they must leave Switzerland for family, economic and/ or administrative reasons. That amounted to a disproportionate interference with their family life, because a separation, an emotional abandonment would be required to enable the disabled person to retain the same quality of life, whereas that would not have been the situation if payment of the pensions had continued, as in the case of a person who had become disabled as a result of an accident.", "73. The applicants submitted that the decision, which had been based on financial reasons, not to allow exportation of the extraordinary pension created a difference of treatment devoid of any objective and reasonable justification for the purposes of Article 14 of the Convention, between persons disabled from birth and persons having become disabled after their 23 rd birthday.", "74. The applicants also alleged that their family ties and their social milieu were in Brazil and not in Switzerland. They further stated that the withdrawal of the pension and allowance was having a serious effect on their everyday lives. In the absence of the requisite funds, they could no longer call on the services of an outside assistant capable of providing for the first applicant. They explained that the cash benefits received by the first applicant had covered the costs of recruiting a homecare nurse and that without such income it was no longer possible to recruit such a nurse.", "75. Moreover, the applicants affirmed that they had had enormous difficulties in finding a buyer for their hotel in Brazil. They argued that until the second applicant and her husband found someone to take over the hotel, they would find it very risky and difficult to leave Brazil. They further complained that a forced departure would have extremely serious, nay grievous effects on both applicants in psychological terms. Furthermore, the first applicant would lose her independence and autonomy, being no longer able to live in a normal environment.", "76. Having regard to the foregoing considerations, the applicants considered that there had been a violation of Article 14 read in conjunction with Article 8 of the Convention.", "( ii ) The Government", "77. As regards Article 14 of the Convention read in conjunction with Article 8, the Government, noting the universal consensus on the necessity of protecting disabled persons against any form of discrimination, nevertheless considered, relying on the judgments delivered in the cases of Glor, cited above, and Montoya v. France ( no. 62170/10, 23 January 2014), that the situation of a beneficiary of an ordinary invalidity pension differed from that of the first applicant in that only in the former case had the person in question contributed to the Swiss social insurance scheme. However, should the Court decide the opposite, namely that the first applicant ’ s situation was comparable to that of a person having contributed to the insurance scheme, and even assume that the two types of pension (contributory/non-contributory) were not sufficiently different to justify different types of regulations, the Government considered that the different conditions applicable to the two types of pension were justified on grounds inherent in insurance law.", "78. As regards the objective justification of the unequal treatment, the Government considered that the aim of the distinction was to guarantee that disabled persons who did not satisfy the conditions for obtaining an ordinary pension could benefit from the solidarity of others and have the requisite means of subsistence to live in Switzerland. The preservation of that solidarity mechanism depended on the will and the trust of other people, which required it to be subject to certain limits. Thus the Government considered that the impugned legislation had pursued a legitimate aim, that is, the country ’ s economic well-being. They explained that the social security system was an extremely complex State construction which comprised a balanced and coordinated set of measures to protect the population against the vicissitudes of life. That system operated at considerable cost, which was defrayed by people living in Switzerland. Any change to the rules on the exportation of extraordinary pensions and disability allowances would upset the financial balance of disability insurance.", "79. The Government further emphasised that the Swiss social insurance system was based on the “ insurance principle ” and broadly underpinned by the equivalence between the payment of contributions and the right to benefits. Consequently, the Swiss social insurance system could not be expected to provide benefits outside its territory to persons who had not – albeit for reasons beyond their control – directly contributed to the funding of those benefits.", "80. The Government pointed out that the extraordinary pension constituted an alternative allowance for persons who did not meet the insurance conditions for entitlement to an ordinary invalidity pension, which meant that it was an instrument for broadening welfare protection. Without such an instrument, persons who had been disabled since birth or since childhood and who therefore did not satisfy the contribution condition would be dependent on social assistance.", "81. The Government also explained that not only were the conditions for entitlement to benefits different in the case of extraordinary pensions, but the benefits were also different. The amount of ordinary invalidity pensions granted depended, inter alia, on the insured person ’ s annual income. On the other hand, extraordinary invalidity pensions were, with some reservations, equal to the minimum amount of the corresponding full ordinary pensions, and they did not depend on any loss of earnings or average annual income, but corresponded to a lump sum, that is to say the minimum pension. Similarly, the amount of the disability allowance also did not depend on any loss of income.", "82. The Government added that the contributory or non- contributory nature of the pensions was also reflected in the funding of the benefits. Ordinary pensions were funded from social and public contributions. Conversely, extraordinary pensions and the disability allowance were financed exclusively by the Confederation.", "83. As regards reasonable justification for the unequal treatment, the Government submitted that Switzerland had a broad margin of appreciation in economic and social matters. They considered that Switzerland had not overstepped that margin, and had, on the contrary, complied with the internationally recognised principles in the sphere of coordination of social security schemes, to the effect that non- contributory benefits were not exported. The Government took the view that there was a consensus in the European countries that non- contributory benefits were not exportable and were therefore paid on the condition of residence in the paying country.", "84. In that connection, the Government noted that in the framework of the system for coordinating social security schemes implemented in the European Union and in relations between the EU and Switzerland (Regulation [EU] no. 883/2004, concerning the Agreement between the Swiss Confederation and the European Community and its Member States on the movement of persons [ALCP]), extraordinary invalidity pensions for disabled persons who had not been subject, before their unfitness of work, to Swiss legislation on the basis of an activity as an employed or self-employed person constituted “special non-contributory cash benefits” (Article 70 § 2 of the Regulation) (see paragraph 41 above). Furthermore, extraordinary disability-insurance pensions had been included on the list of that type of benefit (Annex X to Regulation no. 883/224/EC). Consequently, they were granted exclusively in the Member State ( Switzerland ) in which the person in question lived and in accordance with its legislation ( Article 70 § 2 of the Regulation ). The Government recalled, in that regard, that in judgment ATF 141 V 530 of 11 September 2015 the Federal had confirmed that extraordinary invalidity pensions met all the requisite criteria to qualify as special benefits within the meaning of Article 70 § 2 of Regulation no. 883/2004.", "85. In the light of the foregoing considerations, the Government submitted that the Swiss legislation making the grant of non-contributory benefits subject to having a private home and ordinary residence in Switzerland was not unreasonable, to the extent that it corresponded to current legislation in the other European countries and to the principles in force in international social security law, including the territoriality principle. It followed that the arrangements for paying the benefits in question, as recognised and accept by the States Parties to the ALCP in the light of the specific features of special non- contributory cash benefits, could not be deemed contrary to the Convention. The Government stated that the same reasoning also applied to the disability allowance (Article 42 ( 1 ) LAI), as the States Parties to the ALCP had recognised the close link with Switzerland on account of the non-contributory nature of that benefit ( see ATF 142 V 2, point 6, and paragraph 42 above ).", "86. The Government also submitted that the obligation on Switzerland to adopt social policy measures in order to comply with the international instruments to which it was a Party was of a territorial nature. In other words, Switzerland could not be expected to ensure that social welfare benefits which were funded exclusively from taxation were also paid abroad. The added that the benefits in issue were closely linked to the socio-economic context of Switzerland because they corresponded to the minimum pension payable in that country. Consequently, it was reasonable to restrict them to the Swiss territory.", "87. Balancing the competing interests, the Government argued that the first applicant still had the possibility of returning to Switzerland to benefit from the benefits in question. The loss of the benefits had been the consequence of the applicants ’ departure from Switzerland, whereas the legal situation had been clearly that the first applicant would lose her entitlement to an extraordinary invalidity pension and a disability allowance. The Government added that Brazil had ratified the International Covenant on Economic, Social and Cultural Rights and was therefore required to respect the rights set out therein.", "88. Having regard to the foregoing considerations, the Government considered that there had been no violation of Article 14 read in conjunction with Article 8 of the Convention.", "(b) The Court ’ s assessment", "(i) The applicable principles", "89. The Court reiterated that Article 14 of the Convention affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention. However, not every difference in treatment will amount to a violation of this Article. Instead, it must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment, and that this distinction is discriminatory ( see, for example, National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 88, Reports 1997-VII, and Zarb Adami v. Malta, no. 17209/02, § 71, ECHR 2006 ‑ VIII).", "90. According to the Court ’ s case-law, a difference of treatment is discriminatory within the meaning of Article 14 if it has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim of the impugned measure, having regard to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down by the Convention must not only pursue a legitimate aim: Article 14 will also be violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised ( see, for example, Zarb Adami, cited above, § 72; Stec and Others, § 51; Petrovic, cited above, § 30; and Lithgow and Others v. the United Kingdom, 8 July 1986, Series A no. 102, § 177).", "91. In other words, the notion of discrimination includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention ( see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 82, Series A n. 94). Indeed, Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention ( see, among other authorities, G.M.B. and K.M. v. Switzerland (dec.), no. 36797/97, 27 September 2001, and Zarb Adami, cited above, § 73).", "92. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background ( see Fretté v. France, no. 36515/97, § 40, ECHR 2002 ‑ I; Stec and Others, cited above, § 52; Rasmussen v. Denmark, 28 November 1984, § 40, Series A no. 87; and Inze v. Austria, 28 October 1987, § 41, Series A no. 126).", "93. Furthermore, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions in the respondent State and in Contracting States in general and respond, for example, to any emerging consensus as to the standards to be achieved. One of the relevant factors in determining the scope of the margin of appreciation left to the authorities may be the existence or non-existence of common ground between the laws of the Contracting States the Convention ( see Glor, cited above, § 75, and Sitaropoulos and Giakoumopoulos v. Greece [GC], no. 42202/07, § 66, ECHR 2012).", "94. A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of the society and its needs, the national authorities were better placed than the international judge to appreciate what was in the public interest in economic or social matters, and the Court will generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation” ( see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010, and Stec and Others, cited above, § 52).", "(ii) Application of the principles in the instant case", "(α) The existence of grounds for discrimination covered by Article 14", "95. The applicants, having moved to Brazil, are complaining of discrimination on account of the withdrawal of the first applicant ’ s right to social benefits of a non-contributory nature, payment of which is, by definition linked to permanent residence in Switzerland. They are being treated differently from persons who contributed to the social security system - for example because they only became disabled after having worked for a number of years – and who are entitled to the benefits even if they live abroad.", "96. Article 14 lists the precise constituent elements of a “ situation ”, such as race, national or social origin and birth. However, the list set out in this provision is indicative, and not limitative, in nature, as witness the expression “any ground such as” (“ notamment ” in the French version) (see Engel and Others v. the Netherlands, 8 June 1976, § 72; Carson and Others, cited above, § 70; and Biao v. Denmark [GC], no. 38590/10, § 89, 24 May 2016), as well as the expression in the list “any other status” (“ toute autre situation ” in the French version). The expression “ any other status ” has generally been regarded as a broad interpretation ( see Carson and Others, cited above, § 70, and Biao, cited above, § 89) which is not limited to different treatment based on characteristics which are personal in the sense that they are innate or inherent ( see Clift v. the United Kingdom, no. 7205/07, §§ 56-58, 13 July 2010, and Biao, cited above, § 89).", "97. The Court further specifies that the second applicant is not herself a disabled person, but instead states that she is the victim of unfavourable treatment on the grounds of the type of disability affecting her daughter ’ s, with whom she lives, whom she provides with healthcare and who is under her guardianship ( see paragraph 7 above ). Moreover, since her daughter has no capacity of discernment, the second applicant, as her guardian, necessarily originated the domestic proceedings to which both applicants were admitted as parties by the Swiss courts. The Court therefore considers that the second applicant can claim to be a victim, at least indirectly or by association ( see, to that effect, Guberina v. Croatia, no. 23682/13, §§ 76-79, 22 March 2016), of the alleged discrimination.", "98. Having regard to the foregoing considerations, the Court considers that the two applicants can rely on grounds of discrimination covered by Article 14. In the present case, the discrimination relates to the nature of the first applicant ’ s disability, in conjunction with the (contributory or non-contributory) type of the impugned benefits, and is accordingly covered by Article 14.", " In relevantly similar situations", "99. The Court reiterates that a difference in treatment may raise an issue from the point of view of the prohibition of discrimination as provided for in Article 14 of the Convention only if the persons subjected to different treatment are in a relevantly similar situation, taking into account the elements that characterise their circumstances in the particular context ( see Fábián v. Hungary [GC], no. 78117/13, § 121, 5 September 2017). It notes that the elements which characterise different situations, and determine their comparability, must be assessed in the light of the subject-matter and purpose of the measure which makes the distinction in question (ibid. ).", "100. As regards the field concerned, the Court observes that the case concerns the exportability of a invalidity pension. It raises therefore, on the one hand, issues of a general nature in the economic and social sphere, in which the State has a broad margin of discretion; on the other hand, it involves an allegation of discrimination against a severely disabled person, and therefore a particularly vulnerable group of persons who have suffered, and are still suffering, major inequalities.", "101. In connection with the purpose of the measure, the applicants consider that they have been discriminated against as compared to disable persons who, in particular following an accident or illness, are entitled to export their invalidity pensions. The Government submitted that the situation of a beneficiary of an ordinary invalidity pension differed from that of the first applicant in that only in the former case had the person in question contributed to the Swiss social insurance scheme. The Court considers that the aim of these two types of pension is to guarantee disability income in two different types of situation : in the case of the ordinary invalidity pension for persons having contributed to the invalidity insurance system, and in the case of the disability allowance and the extraordinary invalidity insurance pension for persons who have not contributed to the invalidity insurance system. The Court takes the view that as regards the comparability of these two situations, the mere fact that the applicants have not contributed to the system is not decisive. On the other hand, that fact will be taken into account in the reasons given for the unequal treatment, which will be examined below ( see paragraphs 104-114).", "102. The Court accordingly considers that although the situation of the first applicant, who has been disabled since birth and is the beneficiary of an extraordinary invalidity insurance pension and a disability allowance (which are not exportable) is not identical to that of a person benefiting from an (exportable) ordinary invalidity insurance pension, but is sufficiently comparable to the latter situation. The Court holds that she sustained unequal treatment. It remains to be seen whether the Government can advance any objective and reasonable justification for that state of affairs.", "γ) The existence of a justification for the unequal treatment", "103. The Government submitted that the fact that a person had or had not contributed to the invalidity insurance scheme was valid justification for differentiated treatment under Article 14. The Court agrees, and considers that contributing or not contributing to the scheme constitutes an objective justification for the unequal treatment, even though the differentiation is in fact based on the first applicant ’ s disability, in other words a condition over which she has no control.", "104. As regards the reasonableness of the justification for the unequal treatment, the Court emphasises from the outset that the applicants did not complain of discrimination as compared to non-disabled persons, but rather that they felt discriminated against as compared with persons who, having contributed to the invalidity insurance scheme, have become disabled and can export their pensions abroad.", "105. The applicants alleged that their family ties and their social relations were in Brazil and not in Switzerland, that the withdrawal of the pension and allowance had severely affected their everyday lives and that in the absence of the requisite funds, they could no longer call on the services of an outside assistant capable of providing medical care for the first applicant. They also mentioned their enormous difficulties in finding a buyer for their hotel in Brazil, and alleged that a forced departure would have extremely serious effects on both applicants in psychological and emotional terms.", "106. The Court is not convinced that those allegations were duly relied upon before the domestic authorities. At all events, it reiterates that those disadvantages originated in the decision freely taken by the second applicant to leave Switzerland, despite the clear legislation providing for the non- exportability of the extraordinary invalidity insurance pension and the disability allowance. The applicants ought therefore to have expected those benefits to be withdrawn. They do not argue that the legal bases for withdrawing the benefits were unforeseeable or inaccessible.", "107. It should also be remembered that the applicants, Swiss national, are perfectly entitled to resettle in Switzerland. Moreover, it transpires from the case file that the first applicant paid regular visits to her father in Switzerland. That being the case, it cannot be claimed that resettling in Switzerland, in which country they spent most of their lives, would pose insuperable problems for the applicants. On the contrary, contacts between the first applicant and her father, who lives in Switzerland, would even be made easier.", "108. As regards the interests of the respondent State, the Court does not regards it as incompatible with the Convention to link up the grant of the extraordinary invalidity insurance pension and the disability allowance with the ordinary residence criterion, in particular inasmuch as Article 8 does not secure entitlement to a pension or a social benefit of a specified amount.", "109. That is, in fact, confirmed by a comparison of the solutions used in other Council of Europe member States. The Court reiterates that it may examine the situation in other member States in respect of the issues at stake in a given case in order to assess whether there exists a “European consensus” or at least a certain trend among the member States ( see, mutatis mutandis, Naït ‑ Liman v. Switzerland [GC], no. 51357/07, § 175, ECHR 2018; Bayatyan v. Armenia [GC], no. 23459/03, § 122, ECHR 2011; and Hämäläinen v. Finland [GC], no. 37359/09, §§ 72-75, ECHR 2014).", "110. In that regard, the Court considers that the following conclusions may be drawn from the analysis of comparative law and of European Union law : first of all, it would appear that the distinction between contributory and non- contributory benefits is indeed confirmed in the Council of Europe member States ( see paragraph 31 above ) and represents the general rule in European law ( see paragraphs 32-39 above ). There is, therefore, nothing unusual or arbitrary about it. Secondly, the classification as “non- contributory benefits” of the two benefits in issue in the present case, to wit, an extraordinary invalidity pension and a disability allowance, is in conformity with the practice of Council of Europe member States and with EU law. Thirdly, it cannot be overlooked that the fact of making entitlement to non-contributory benefits subject to a condition of residence in the paying country is the general rule in almost all the member countries of the Council of Europe and in all three Council of Europe non-member States compared (see paragraph 31 above). That solution was also adopted by the European Union in Regulation 883/2004/ EC of 29 April 2004 ( see paragraph 36 above ).", "It follows that the approach adopted in the instant case by the Swiss authorities tallies with the solutions used in the Council of Europe and the European Union.", "111. Having regard to the foregoing considerations, the first applicant ’ s interest in receiving the impugned benefits under the same conditions as persons having contributed to the system must yield to the public interest of the respondent State, consisting in guaranteeing the principle of social insurance solidarity, which is particularly important in the case of a non- contributory benefit, even if the reason why the first applicant never contributed to the system was completely beyond her control or influence. In that regard, the Court considers particularly relevant the Government ’ s argument to the effect that a non-contributory benefit is supposed to guarantee that disabled persons who did not satisfy the conditions for obtaining an ordinary pension could benefit from the solidarity of others and have the requisite means of subsistence to live in Switzerland. However, it is not contrary to the Convention to hold that the preservation of that solidarity mechanism depends on the will and the trust of other people, which requires the grant of benefits to be subject to certain conditions, for example requiring beneficiaries to have their ordinary residence in Switzerland. It is reasonable for a State granting non-contributory benefits not to wish to pay them abroad, particularly if the cost of living in the foreign country in question is considerably lower.", "112. Having regard to the broad margin of appreciation in the economic and social spheres and to the principle that the Court respects, a priori, the State ’ s judgment as to what is in the general interest, the Court concludes that the justification for the unequal treatment put forward by the Government is not unreasonable.", "113. It follows that there has been no violation of Article 14 read in conjunction with Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE", "Admissibility", "1. The parties ’ submissions", "114. The applicants also alleged a violation of Article 8 taken alone.", "115. As regards the existence of the interference, the applicants submitted that they shared extremely strong family ties and that the lack of benefits would force the first applicant to return to Switzerland, far from her next-of-kin; if the second applicant had to follow her, she would have to leave her husband behind in Brazil.", "116. As regards the legitimate aim of the interference, the applicants stated that the well-being of the domestic economy should be less important than the deprivation of the personal autonomy of the first applicant, who would have to be provided for in an expensive institution should she de return to Switzerland alone.", "117. For the reasons cited under Article 14, they considered that the impugned measure had not been necessary in a democratic society.", "118. The Government invited the Court to declare the complaint under Article 8 inadmissible, as principal submission, for incompatibility ratione materiae with the Convention pursuant to Article 35 § 3 ( a) of the Convention, and in the alternative, as being manifestly ill- founded.", "119. The Government submitted that Switzerland had in no way interfered with the decision of the second applicant and her husband, accompanied by the first applicant, to settle in Brazil in order to manage their hotel; furthermore, the applicants were free to resettle in Switzerland in order to regain entitlement to the impugned benefits.", "120. The Government considered that the measure geared to maintaining the solidarity mechanism underpinning the system – which is well known in the system for coordinating social security schemes – of non-exportable non- contributory benefits funded from tax resources, protected the country ’ s economic well-being and the rights and freedoms of others.", "121. The Government further noted that it had not been established that departure from Brazil would be extremely unsafe; in the event of a return to Switzerland, even though no country could be expected to protect people from all the vicissitudes of life, the first applicant would be surrounded by her father and her family, which ruled out automatic institutionalisation and loss of autonomy.", "2. The Court ’ s assessment", "122. Having regard to the applicability of Article 14 read in conjunction with Article 8 ( see paragraphs 57-67 above ), the Court has noted that the applicants ’ complaint falls within the ambit of Article 8. For essentially the same reasons, it considers that that provision is applicable to the present complaint.", "123. The Court considers that the refusal to pay the benefits abroad amounts to an interference with the applicants ’ rights as secured under Article 8 in so far as the impugned pensions are liable to have repercussions on the organisation of the two applicants ’ family life, as explained in the section on the applicability of Article 14 of the Convention ( see paragraphs 65-66 above ).", "124. On the other hand, it considers that the interference was prescribed by law, in particular under the LPGA and the LAI ( see paragraphs 19-27 above ) and that it pursued a legitimate aim, that is to say social insurance solidarity, which is relevant to the protection of the rights of others and the economic well-being of the country within the meaning of Article 8 § 2 of the Convention. The Court also holds that the interference was necessary in a democratic society and was proportionate to the aims sought to be achieved. As regards this latter factor, the Court does not consider it unreasonable to make the payment of non-contributory benefits subject to ordinary residence in Switzerland.", "125. It follows from the foregoing considerations that this complaint is manifestly ill- founded and must be rejected pursuant to Article 35 §§ 3 ( a) and 4 of the Convention." ]

[ "2. A list of the applicants is set out in the appendix, as are the applicants’ personal details, the date of introduction of their applications before the Court and the information regarding their legal counsel, respectively.", "3. The Government were represented by their Agent, Ms Zorana Jadrijević Mladar.", "4. The relevant facts of the case, as submitted by the parties, may be summarised as follows.", "The applicants’ medals and the national sporting achievements recognition and rewards system", "5. Between 1961 and 1992 the applicants won a number of medals for Yugoslavia, as part of the national team, at the Blind Chess Olympiads. The highest achievement of the fourth applicant, Mr Dragoljub Baretić, in this competition was a gold medal, while the highest achievements of the first, second and thirds applicants, Mr Branko Negovanović, Mr Sretko Avram and Mr Živa Markov, respectively, were silver medals.", "6. In 2006 the respondent State enacted the Sporting Achievements Recognition and Rewards Decree which provided, under specified circumstances, for a national recognition and rewards system consisting of an honorary diploma, a lifetime monthly cash benefit, and a one-time cash payment (see paragraphs 24-34 below).", "The requests adDressed to the administrative authorities", "7. On an unspecified date in 2007 the Serbian Chess Federation ( Šahovski savez Srbije ) recommended that a number of chess players who had won medals in international competitions, including the applicants, be formally proposed to the Government ( Vlada Republike Srbije ) by the Ministry of Education and Sport ( Ministarstvo prosvete i sporta ) as persons entitled to the national sporting recognition awards for their achievements (see paragraph 33 below).", "8. Since, unlike the sighted chess players with similar accolades, the applicants had not been formally proposed as persons entitled to such recognition and awards, on 27 February 2007 the Serbian Blind Persons Federation ( Savez slepih Srbije ) sent a letter to the said ministry urging it to treat blind chess players on an equal footing compared to all other athletes and chess players, with or without disabilities, who had attained the same or similar sporting results.", "9. On 30 July 2009 the Serbian Chess Federation and the applicants lodged additional requests to the same effect with the Ministry of Youth and Sport ( Ministarstvo omladine i sporta ), noting that the applicants had been discriminated against, having still not received their national sporting recognition awards. The ministry in question was also notified that, should no redress be forthcoming, an administrative dispute would be brought before the relevant courts (see paragraphs 37-42 below).", "10. On 10 October 2009 the Ministry of Youth and Sport informed the applicants that they did not fulfil the legal requirements, as set out in the Sporting Achievements Recognition and Rewards Decree, in order to be granted the national sporting recognition awards and that this was why no recommendation had been made to the Government in this regard.", "The civil proceedings", "11. On 23 October 2009 the applicants lodged a civil discrimination claim against the Republic of Serbia. The applicants alleged, inter alia, that they had been discriminated against and dishonoured compared to other athletes or players with similar sporting achievements. In particular, all sighted chess players had been granted the national recognition awards in question while their own requests in this respect had been ignored. The applicants therefore sought a judicial declaration that they had been discriminated against and redress for the pecuniary and non-pecuniary harm suffered in this connection (see paragraphs 35 and 36 below).", "12. On 1 April 2010 the Novi Sad Court of First Instance ( Osnovni sud u Novom Sadu ) ruled in favour of the applicants and in so doing: (a) established that they had indeed been discriminated against compared to sighted chess players and Paralympic medal winners; (b) awarded each applicant 300,000 Serbian dinars (RSD), amounting to approximately 2,995 euros (EUR) at that time, on account of the mental anguish suffered in this regard and the harm caused to their honour and reputation, plus statutory interest; (c) recognised that the applicants, respectively, were entitled to an honorary diploma in recognition of their achievements and a lifetime monthly cash benefit as of 23 October 2009, consisting of accrued and future benefits, the former with statutory interest and the latter until the relevant regulations provided for such a possibility; (d) ordered that the first, second and third applicants each be paid EUR 45,000 in RSD on account of the one-time cash payment for their achievements, with applicable interest as of 23 October 2009; (e) ordered that the fourth applicant be paid EUR 60,000 in RSD on account of the said one-time cash payment, also with applicable interest as of 23 October 2009; and (f) awarded the applicants RSD 309,000 in litigation costs, amounting to approximately EUR 3,085 at that time.", "13. Following an appeal lodged by the defendant, on 5 July 2011 the Novi Sad Appeals Court ( Apelacioni sud u Novom Sadu ) quashed the impugned judgment and ordered a retrial as regards the ruling described under points (a) and (b) in paragraph 12 above. Concerning the ruling described under points (c), (d) and (e), however, the appellate court rejected the applicants’ claims as inadmissible, being of the view that they involved issues of an administrative nature which could not be adjudicated by a civil court (see paragraph 40 below).", "14. On 14 November 2011 the Novi Sad Court of First Instance ruled partly in favour of the applicants. Specifically, it (a) established, once again, that they had been discriminated against compared to sighted chess players and Paralympic medal winners; (b) awarded each applicant RSD 500,000, amounting to approximately EUR 4,870 at that time, on account of the mental anguish suffered in this connection and the harm caused to their honour and reputation, plus statutory interest; and (c) ordered that the applicants be paid RSD 405,000 in litigation costs, amounting to approximately EUR 3,945 at that time.", "15. Following a further appeal lodged by the defendant, on 14 June 2012 the Novi Sad Appeals Court reversed the impugned judgment and ruled fully against the applicants. The appellate court noted, inter alia, that the Blind Chess Olympiad had not been among the competitions listed in the Sporting Achievements Recognition and Rewards Decree. There had hence been no discrimination when the Ministry of Youth and Sports had merely informed the applicants thereof. Furthermore, the State had had the prerogative to select the competitions which it deemed most important based on the popularity of the sport in question, its significance internationally, and the country’s “realistic financial resources”. The Novi Sad Appeals Court lastly stated that, in any event, the applicants could have made use of the administrative disputes procedure but had failed to do so (see paragraph 9 above).", "16. On 5 September 2012 the Chief Public Prosecutor’s Office ( Republičko javno tužilaštvo ) refused to lodge, on the applicants’ behalf, a request for the protection of legality ( zahtev za zaštitu zakonitosti ) with the Supreme Court of Cassation ( Vrhovni kasacioni sud ).", "17. On 6 March 2013 the Supreme Court of Cassation dismissed the applicants’ appeal on points of law ( revizija ). Just like the Novi Sad Appeals Court before it, this court noted that the Blind Chess Olympiad had not been among the competitions listed in the relevant regulations and that the applicants had thus not been entitled to the national sporting recognition awards in question. Moreover, there had been no evidence that any other blind chess players had ever received those very awards, meaning that there had also been no differential treatment among the blind chess players themselves.", "The constitutional court", "18. On 8 May 2013 the applicants lodged an appeal with the Constitutional Court ( Ustavni sud ).", "19. On 17 December 2015 the Constitutional Court noted that, according to the impugned decisions rendered by the civil courts, the applicants had not suffered discrimination since their medals had been won in the course of competitions which had not been listed in the Sporting Achievements Recognition and Rewards Decree. Furthermore, the Constitutional Court stated that it had itself already rejected, on 9 July 2013, a motion challenging the constitutionality and legality of the said decree.", "Other relevant facts", "20. On 29 October 2014 the International Chess Federation ( Fédération Internationale des Échecs ), also referred to as the World Chess Federation or FIDE by its French acronym, sent a letter to the Serbian Chess Federation. The letter reads as follows:", "“The International Braille Chess Association (IBCA) is an integral part of the World Chess Federation ... The results achieved by the members of the IBCA on worldwide and European championships are also official results of the FIDE.", "Blind chess players have the same chess titles, which are obtained in the same manner as the ones obtained by healthy chess players. Furthermore, blind chess players are listed on the registration and rating lists of the FIDE together with healthy chess players, and based on the results achieved at the IBCA competitions, which are a part of the competing system of FIDE.", "Every blind chess player as well as every healthy one has his or her own registration and identification number, based on which ... [he or she] ... can be located on the registration and rating list of FIDE.", "The World Chess Olympiad, held as part of the competing system of the FIDE, includes chess [O]lympics for the healthy as well as for the blind (the Blind Chess Olympiad).", "It is the same with other European and worldwide tournaments organised by the FIDE – they include tournaments for both the healthy and the blind chess players.", "This opinion is issued at the request of the Serbian Chess Federation for the purpose of exercising the right of the blind chess players to obtain national sports acknowledgments issued by the Republic of Serbia in the same way healthy chess players do. As mentioned before, FIDE treats both groups of chess players as equals – they are entitled to the same titles and ratings and have the same rights.”", "21. In a letter lacking a date, addressed to the Ministry of Youth and Sport, the IBCA stated, inter alia, that the applicants had won medals in Blind Chess Olympiads. The IBCA further noted that their association was “a rightful member of FIDE” and that blind chess players were, based on their results, “on the single official list of FIDE together with chess players without sight impairment”. Lastly, “in accordance with the basic postulates of ethics and fair-play in sports” the IBCA requested the ministry not to discriminate against blind chess players when it came to formally recognising their achievements.", "22. In their submissions lodged with the domestic authorities, the applicants maintained, inter alia, that of all the medal winners and champions over the years, a total of some 400 persons including sighted chess players, only blind chess players had been denied their national sporting recognition awards.", "23. As of today and despite repeated efforts to do so, chess is still not included at the Olympic Games or the Paralympic Games organized by the International Olympic Committee and the International Paralympic Committee respectively." ]

[ "RELEVANT LEGAL FRAMEWORK", "The Sporting Achievements Recognition and Rewards Decree ( Uredba o nacionalnim priznanjima i nagradama za poseban doprinos razvoju i afirmacji sporta, published in the Official Gazette of the Republic of Serbia – OG RS – nos. 65/06 and 06/07)", "24. Article 2 § 1 provided that athletes and players, nationals of the Republic of Serbia, who had won a medal, as members of the national team of Yugoslavia or of the State Union of Serbia and Montenegro or the national team of the Republic of Serbia, at the Olympic Games, the Paralympic Games, the Chess Olympiad, or at a world or a European championship in an Olympic sport, or who had been world record holders in such a discipline, as well as their coaches if they too were nationals of the Republic of Serbia, were all entitled to a “national sporting recognition award” ( nacionalono sportsko priznanje ).", "25. Article 2 § 2, inter alia, defined the national sporting recognition award as consisting of an honorary diploma and a lifetime monthly cash benefit.", "26. Article 2 § 2 (1) provided, inter alia, that the monthly cash benefit was to be in the amount of three average net salaries in the Republic of Serbia for the month of December of the previous year for a gold medal won at the Olympic Games, the Paralympic Games or the Chess Olympiad.", "27. Article 2 § 2 (2) provided, inter alia, that the monthly cash benefit was to be in the amount of two and a half average net salaries in the Republic of Serbia for the month of December of the previous year for a silver medal won at the Olympic Games, the Paralympic Games or the Chess Olympiad.", "28. Article 2 §§ 3 and 4 provided that the national sporting recognition award could be bestowed upon the same athlete or coach only once and that it was to be formally presented on the National Day of the Republic of Serbia.", "29. Article 3 provided, inter alia, that athletes and players, nationals of the Republic of Serbia, who had won a medal, as members of the national team of the Republic of Serbia, at the Olympic Games, the Paralympic Games, the Chess Olympiad, or at a world or a European championship in an Olympic sport or chess, were also entitled to a one-time cash payment in accordance with the decree.", "30. Article 4 § 1 specified that for a medal won in a team sport at the Olympic Games, the Paralympic Games or the Chess Olympiad the team in question would be paid EUR 400,000 in RSD for a gold medal, EUR 350,000 in RSD for a silver medal, and EUR 300,000 in RSD for a bronze medal.", "31. Article 4 § 2 provided, inter alia, that for a medal won at the Olympic Games or the Paralympic Games in individual sports athletes were personally entitled to a one-time cash payment in the amount of 15% of the sums mentioned in Article 4 § 1 above.", "32. Article 4 §§ 4 and 5 provided that for a medal won at the Olympic Games or the Paralympic Games by a team the one-time cash payment was to be adjusted taking into account the size of the team itself. It also set out the exact calculation method for so doing.", "33. Article 7 provided, inter alia, that the national sporting recognition awards referred to in Article 2 § 2 of this decree, as well as the one-time cash payment, were to be granted by the Government on the proposal of the ministry in charge of sports and that an athlete or player would be entitled to receive the lifetime monthly cash benefit upon reaching the age of 35.", "34. In 2009 this decree was repealed and replaced by another decree regulating the same subject matter. Other decrees on the issue and their amendments were enacted in 2013, 2015, 2016, 2017 and 2019. The decree of 2009, inter alia, specified that athletes and players who had won a medal prior to 15 April 2009 would be entitled to the recognition and rewards as provided in the earlier regulations, that is in the decree summarised in paragraphs 24-33 above.", "The Prohibition of Discrimination Act ( Zakon o zabrani diskriminacije, published in OG RS no. 22⁄09)", "35. Article 43 sets out the various forms of judicial redress available to victims of discrimination, including on the basis of disability. They include injunctive and declaratory relief, such as the recognition of the discrimination suffered and its prohibition in the future, as well as compensation for any pecuniary and non-pecuniary damage. The publication in the media of a civil court’s judgment rendered in this context may also be ordered.", "36. This Act entered into force on 7 April 2009 and has since then been amended once, in 2021.", "The General Administrative Proceedings Act ( Zakon o opštem upravnom postupku; published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – nos. 33/97 and 31/01)", "37. Article 208 § 1 provided, inter alia, that in simple matters an administrative body was obliged to issue a decision within one month as of when the claimant had lodged his or her request. In all other cases, the administrative body was to render a decision within two months thereof.", "38. Article 208 § 2 enabled the claimant whose request had not been decided within the periods established in the previous paragraph to lodge an appeal as if his or her request had been denied. Where an appeal was not allowed, the claimant had the right to directly initiate an administrative dispute before a relevant court of law.", "39. This Act was subsequently amended, in 2010, and was ultimately repealed and replaced by other legislation enacted in 2016.", "The Administrative Disputes Act ( Zakon o upravnim sporovima; published in OG FRY no. 46/96)", "40. Article 6 provided that an administrative dispute could only be brought against an “administrative act”, which was an act/decision adopted by a State body in the determination of one’s rights and obligations concerning “an administrative matter”. Article 9 § 1, however, provided, inter alia, that an administrative dispute could not be instituted in respect of matters where “judicial redress” was “secured outside [of the context] of an administrative dispute”.", "41. Articles 8 and 24 provided, inter alia, that a claimant who had lodged a request with an administrative body would have the right to bring an administrative dispute before a court of law in the following situations:", "(a) Where an appellate body failed to issue a decision upon his or her appeal within sixty days, or indeed a shorter deadline if so provided by law, the claimant could repeat the request and if the appellate body declined to rule within an additional period of seven days the claimant could institute an administrative dispute.", "(b) In accordance with, mutatis mutandis, the conditions set out under (a) above, where a first instance administrative body failed to issue a decision and there was no right to an appeal, the claimant could directly institute an administrative dispute.", "(c) Where a first instance administrative body failed to issue a decision upon the claimant’s request within sixty days, or indeed a shorter deadline if so provided by law, as regards matters where an appeal was not excluded, the claimant had the right to lodge the said request with the appellate administrative body. Where that body rendered a decision, the claimant had the right to institute an administrative dispute against it, and where it failed to rule the claimant could institute an administrative dispute in accordance with, mutatis mutandis, the conditions set out under (a) above.", "42. This Act was repealed and replaced by other legislation on 30 December 2009.", "THE LAW", "joinder of the applications", "43. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.", "alleged VIOLATIONs of Article 1 of protocol no. 12 Scope of the case", "Scope of the case", "Scope of the case", "44. The applicants are blind chess players and Serbian nationals who had won medals for Yugoslavia internationally, notably in the Blind Chess Olympiad. They complained that they had been discriminated against by the Serbian authorities by being denied certain financial awards, i.e. a lifetime monthly cash benefit as well as a one-time cash payment (see paragraphs 24-33 above), unlike all other athletes and chess players, including sighted chess players or other athletes or players with disabilities, who had won similar international accolades.", "45. The applicants furthermore complained that as part of the above-alleged discrimination, including the failure of the Serbian authorities to formally recognise their achievements through an honorary diploma (see paragraph 25 above), they had suffered adverse consequences to their reputations respectively.", "46. These complaints were communicated to the Government under Article 14 of the Convention, read in conjunction with Article 8 thereof and Article 1 of Protocol No. 1, as well as under Article 1 of Protocol No. 12.", "47. Having regard to the substance of the applicants’ complaints and the relevant context, however, the Court, which is the master of the characterisation to be given in law to the facts of any case before it (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, ECHR 2018), is of the opinion that all of the complaints in the present case should be examined from the standpoint of Article 1 of Protocol No. 12 only (see, mutatis mutandis, Napotnik v. Romania, no. 33139/13, § 52, 20 October 2020). That provision reads as follows:", "“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.", "2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”", "As regards the applicants’ complaints that they had been discriminated against by being denied certain financial awards (see paragraph 44 above) Admissibility", "Admissibility", "Admissibility", "(a) The Court’s jurisdiction ratione materiae", "48. The Government argued that since the Blind Chess Olympiad had not been among the competitions listed in the Sporting Achievements Recognition and Rewards Decree, the applicants had consequently not been entitled to acquire any pecuniary benefits in this connection.", "49. The applicants maintained that they should have been granted the same awards as all other athletes and players, including sighted chess players, with similar international accolades.", "50. At the outset, the Court reiterates that as the question of applicability is an issue of its jurisdiction ratione materiae, the general rule of dealing with applications should be respected and the relevant analysis should be carried out at the admissibility stage unless there is a particular reason to join this question to the merits (see Denisov v. Ukraine [GC], no. 76639/11, § 93, 25 September 2018). No such particular reason exists in the present case, and the issue of the applicability of Article 1 of Protocol No. 12 therefore falls to be examined at the admissibility stage.", "51. The Court reiterates that whereas Article 14 of the Convention prohibits discrimination in the enjoyment of “the rights and freedoms set forth in [the] Convention”, Article 1 of Protocol No. 12 introduces a general prohibition of discrimination (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 53, ECHR 2009, and Baralija v. Bosnia and Herzegovina, no. 30100/18, § 45, 29 October 2019).", "52. It is important to note that Article 1 of Protocol No. 12 extends the scope of protection to not only “any right set forth by law”, as the text of paragraph 1 might suggest, but beyond that. This follows in particular from paragraph 2, which further provides that no one may be discriminated against by a public authority (see Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 104, 9 December 2010, and Napotnik, cited above, § 55). According to the Explanatory Report on Article 1 of Protocol No. 12, the scope of protection of that provision concerns four categories of cases in particular where a person is discriminated against:", "“i. in the enjoyment of any right specifically granted to an individual under national law;", "ii. in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner;", "iii. by a public authority in the exercise of discretionary power (for example, granting certain subsidies);", "iv. by any other act or omission by a public authority (for example, the behaviour of law enforcement officers when controlling a riot).”", "The Explanatory Report further clarifies that:", "“... it was considered unnecessary to specify which of these four elements are covered by the first paragraph of Article 1 and which by the second. The two paragraphs are complementary and their combined effect is that all four elements are covered by Article 1. It should also be borne in mind that the distinctions between the respective categories i-iv are not clear-cut and that domestic legal systems may have different approaches as to which case comes under which category.”", "53. Therefore, in order to determine whether Article 1 of Protocol No. 12 is applicable, the Court must establish whether the applicants’ complaints fall within one of the four categories mentioned in the Explanatory Report (see Savez crkava “Riječ života” and Others, cited above, § 105, and Napotnik, cited above, § 56).", "54. In this connection, the Court notes that the domestic law (see paragraphs 24-32 above), as interpreted by the national courts (see paragraphs 15, 17 and 19 above), provided that only chess players who had won medals at the Chess Olympiad, otherwise organised for sighted chess players only, were entitled to certain financial awards, thus effectively disqualifying all other chess players including those who, such as the applicants, had won their medals at the Blind Chess Olympiad. It follows that the Serbian authorities, when deciding to enact such legislation, clearly exercised their discretionary power in such a way as to treat differently the sighted and the blind chess players despite them winning similar international accolades. Consequently, the Court cannot but conclude that the applicants’ complaints fall under category (iii) of potential discrimination as envisaged by the Explanatory Report (see paragraph 52 above).", "55. In view of the foregoing, Article 1 of Protocol No. 12 is applicable to the facts of the applicants’ complaints and the Government’s implicit objection in this regard must be rejected.", "(b) Exhaustion of domestic remedies", "(i) The parties submissions", "56. The Government maintained that the applicants had failed to make use of an existing and effective domestic remedy. In particular, and as noted by the domestic civil courts themselves, the applicants should have properly brought an administrative dispute with respect to their complaints relating to the national sporting recognition awards (see paragraphs 13, 15 and 37-42 above). Moreover, the Government pointed out that the applicants had clearly been aware of this avenue of redress but had, for some reason, decided not to pursue it (see paragraph 9 above).", "57. The applicants submitted that they had complied with the exhaustion requirement, particularly since their complaints had concerned discrimination and they had brought an anti-discrimination civil lawsuit in this regard (see paragraph 35 above).", "(ii) The Court’s assessment", "(α) Relevant principles", "58. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring a case against a State before the Court to firstly use the remedies provided by the national legal system. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right domestically (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 70, 25 March 2014).", "59. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others, cited above, § 71).", "60. To be effective, a remedy must likewise be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004, and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006 ‑ II). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see, for example, Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009, and Vučković and Others, cited above, § 74).", "61. An applicant’s failure to make use of an available domestic remedy or to make proper use of it (that is to say by bringing a complaint at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law) will result in an application being declared inadmissible before this Court (see Vučković and Others, cited above, § 72).", "62. The Court has, however, also frequently underlined the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism (ibid., § 76, with further references). For example, where more than one potentially effective remedy is available, the applicant is only required to use one remedy of his or her own choosing (see, among many other authorities, Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009; Nada v. Switzerland [GC], no. 10593/08, § 142, ECHR 2012; Göthlin v. Sweden, no. 8307/11, § 45, 16 October 2014; and O’Keeffe v. Ireland [GC], no. 35810/09, §§ 109-111, ECHR 2014 (extracts)). Also, it would, for example, be unduly formalistic to require the applicants to exercise a remedy which even the highest court of their country would not oblige them to exhaust (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, §§ 117 and 118, ECHR 2007 ‑ IV).", "63. With respect to legal systems which provide constitutional protection for fundamental human rights and freedoms, such as the one in Serbia, it is incumbent on the aggrieved individual to test the extent of that protection (see Vinčić and Others v. Serbia, nos. 44698/06 and 30 others, § 51, 1 December 2009).", "64. As regards the burden of proof, it is up to the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see and Vučković and Others, cited above, § 77, with further references).", "(β) Application of these principles to the present case", "65. Turning to the present case, the Court notes that, as stated by the applicants themselves, the very substance of their complaints concerned allegations of discrimination (see paragraphs 44 and 57 above). In those circumstances it cannot be deemed unreasonable for them to have sought redress on the basis of the national anti-discrimination legislation, which specifically provided for various forms of injunctive and/or declaratory relief to victims of such treatment, as well as compensation for any pecuniary and non-pecuniary damage suffered (see paragraph 35 above; see also, mutatis mutandis, Vučković and Others, cited above, § 78).", "66. Furthermore, an administrative dispute would not have offered, in the very specific circumstances of the present case, a more reasonable prospect of success, compared to the civil lawsuit (see paragraphs 60 and 62 above). The Government, for their part, provided no relevant domestic case-law showing that any other claimants had ever obtained redress through this legal avenue in respect of discrimination-related claims brought in connection with the sporting recognition awards system (see paragraph 64 above).", "67. The applicants lastly, albeit unsuccessfully, tested the extent of the protection for fundamental human rights and freedoms afforded by the Constitutional Court, it being noted that as of 7 August 2008 a constitutional appeal has, in principle, been considered by the Court as an effective domestic remedy within the meaning of Article 35 § 1 of the Convention (see Vučković and Others, cited above, § 61). The Constitutional Court was thus given an opportunity to expand this protection by way of interpretation (see paragraph 63 above; see also Vučković and Others, cited above, § 84, with further references) but held that there had been no discrimination in the present case. In so doing, however, it did not reject the applicants’ complaints on the grounds that they had not properly exhausted any other, prior, effective legal avenue, including the administrative dispute proceedings, as it could have done (see paragraph 19 above). It would hence also be unduly formalistic for the Court to now hold otherwise (see paragraph 62 above in fine; see also, mutatis mutandis, Dragan Petrović v. Serbia, no. 75229/10, §§ 55 and 57, 14 April 2020).", "68. In view of the foregoing, the Government’s objection as to the non-exhaustion of domestic remedies, within the meaning of Article 35 § 1 of the Convention, must be rejected.", "(c) As regards other grounds of inadmissibility", "69. The Court notes that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "Merits", "(a) Submissions by the parties", "70. The applicants essentially reaffirmed their complaints as set out in paragraph 44 above. They further maintained that the respondent State had continued to discriminate against blind chess players on the basis of their sensory impairment notwithstanding their undisputed sporting achievements.", "71. The Government submitted that the applicants had not suffered any discrimination in the present case. The Sporting Achievements Recognition and Rewards Decree had pursued certain objectives, notably the recognition of only the highest sporting achievements in the most important competitions. In deciding which sports should be included, a number of criteria had been employed: (i) the popularity of the sport and its tradition in Serbia; (ii) the sport’s significance internationally; (iii) its contribution to the “development and affirmation” of the country’s reputation; (iv) the need to distinguish between “Olympic and non-Olympic sports”; and (v) the country’s budgetary constraints.", "72. The Government further pointed out that although chess was not an Olympic sport, the International Olympic Committee had recognised FIDE as the supreme body responsible for the advancement of chess. FIDE had also adopted the rules of the game and had organised chess Olympiads, world championships and other competitions under its auspices. Chess had therefore been included among the sports listed in the Sporting Achievements Recognition and Rewards Decree, but not the Blind Chess Olympiad as such. In this connection, the Government stated that there had also been many other important competitions which had not been included based on the above-mentioned criteria. Among others, for example, amateurs, junior athletes and veterans had all been excluded. Most notably, even though the Serbian national youth team (the under 20s) had won the 2015 FIFA World Cup in football, which had been a major success in the Serbian context and a feat which had delighted the entire nation, the members of this team had not been eligible to receive any national sporting recognition awards.", "73. The Government lastly endorsed the reasoning of the Supreme Court of Cassation and that of the Constitutional Court, including reasons to the effect that there had been no evidence that any other blind chess players had ever received the national recognition awards in question, the implication being that all blind chess players had thus been treated equally (see paragraphs 17 and 19 above).", "(b) The Court’s assessment", "(i) Relevant principles", "74. Notwithstanding the difference in scope between Article 14 of the Convention and Article 1 of Protocol No. 12, the meaning of the notion of “discrimination” in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (see paragraphs 18 and 19 of the Explanatory Report to Protocol No. 12). In applying the same term under Article 1 of Protocol No. 12, the Court therefore sees no reason to depart from the established interpretation of “discrimination” (see Sejdić and Finci, cited above, § 55, and Napotnik, cited above, § 69).", "75. It can further be inferred that, in principle, the same standards developed by the Court in its case-law concerning the protection afforded by Article 14 are applicable to cases brought under Article 1 of Protocol No. 12 (see, for example, Napotnik, cited above, § 70).", "76. In this vein, the Court reiterates that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017), which includes discrimination based on disability (see, for example, Glor v. Switzerland, no. 13444/04, § 80, ECHR 2009). Moreover, in order for an issue to arise under Article 14, there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (see Molla Sali v. Greece [GC], no. 20452/14, § 133, 19 December 2018). Such a difference in treatment is discriminatory if it has no objective and reasonable justification, or in other words, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised (ibid., § 135).", "77. Moreover, in cases concerning a complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1, although the latter provision does not, for example, include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14 (see, for example, Stummer v. Austria [GC], no. 37452/02, § 83, ECHR 2011, and Fábián, cited above, § 117, both with further references).", "78. The Contracting States also enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and its background (see, for example, Stummer, cited above, § 88). In cases concerning disability, the States’ margin of appreciation in establishing different legal treatment for people with disabilities has been deemed as reduced considerably ( see Glor, cited above, § 84).", "79. Referring in particular to Recommendation 1592 (2003) towards full social inclusion of people with disabilities, adopted by the Parliamentary Assembly of the Council of Europe on 29 January 2003, and the United Nations Convention on the Rights of Persons with Disabilities, adopted on 13 December 2006, the Court has opined that there was a European and worldwide consensus on the need to protect people with disabilities from discriminatory treatment (see Glor, cited above, § 53). This included an obligation for the States to ensure “reasonable accommodation” to allow persons with disabilities the opportunity to fully realise their rights, and a failure to do so amounted to discrimination (see, among other authorities, Enver Şahin v. Turkey, no. 23065/12, §§ 67-69, 30 January 2018; Çam v. Turkey, no. 51500/08, §§ 65-67, 23 February 2016; and G.L. v. Italy, no. 59751/15, §§ 60-66, 10 September 2020).", "80. As to the burden of proof, the Court has held that once the applicant has demonstrated a difference in treatment, it is for the Government to show that the difference in treatment was justified (see, for example, Molla Sali, cited above, § 137, and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 85, ECHR 2013 (extracts)).", "(ii) Application of these principles to the present case", "(α) Whether there was a difference in treatment", "81. The Court notes that the complaints in question concern the respondent State’s decision not to provide the applicants with at least one financial benefit, i.e. the lifetime monthly cash benefit, which they would have received had they won medals in competitions as sighted rather than blind chess players. In particular, this benefit was to be paid to sighted chess players for winning medals in the Chess Olympiad but not to blind chess players for winning medals in the Blind Chess Olympiad, the former competition having been listed in the decree but the latter competition not having been specifically mentioned therein (see paragraphs 24 and 25 above). The situation with the one-time cash payment, however, seems less clear since Article 3 of the decree referred only to persons who had won medals for Serbia rather than both Serbia and Yugoslavia (compare and contrast paragraphs 24 and 29 above; at the same time, however, see also paragraph 12 above in support of an affirmative position on the issue expressed by the Novi Sad Court of First Instance on 1 April 2010).", "82. The applicants were thus at least partly treated differently based on a ground of distinction covered by Article 1 of Protocol No. 12, namely their disability (see, mutatis mutandis, paragraphs 75 and 76 above).", "(β) Whether the two groups of persons were in comparable situations", "83. In view of the above, the applicants as blind chess players who had won their medals at the Blind Chess Olympiad, on the one hand, and the sighted chess players who had won their medals at the Chess Olympiad, on the other, must, in the Court’s opinion, be seen as two groups of persons engaging in the same activity, i.e. playing chess, and, furthermore, as two groups whose members had attained some of the highest international accolades.", "84. It follows that the blind chess players and the sighted chess players, in the context of the present case and within the meaning of the Court’s case-law have to be deemed as two groups of persons in analogous or relevantly similar situations (see paragraphs 75 and 76 above).", "(γ) Whether there was an objective and reasonable justification", "85. The Government argued that the Sporting Achievements Recognition and Rewards Decree had pursued a justified objective, specifically the recognition of only the highest sporting achievements in the most important competitions. The exact relevant criteria referred to by the Government have been set out in paragraph 71 above.", "86. In this context, the Court reiterates at the outset that although Article 1 of Protocol No. 12 does not include the right to receive payment of a benefit of any kind, if a State does decide to create a particular benefit, it must do so in a manner which is compatible with this provision (see paragraphs 75 and 77 above). In other words and in the context of the present case, since the respondent State decided to set up a sporting achievements recognition and rewards system it had to do so in such a way as to comply with Article 1 of Protocol No. 12.", "87. Furthermore, while it was obviously legitimate for the Serbian authorities to focus on the highest sporting achievements and the most important competitions, the Court notes that the Government have not shown why the undoubtedly high accolades won by the applicants, as blind chess players, would have been less “popular” or “internationally significant” than similar medals won by sighted chess players (see paragraph 80 above). Indeed, in its letter addressed to the Ministry of Youth and Sport, the IBCA itself stated, inter alia, that blind chess players were, based on their results, “on the single official list of FIDE together with chess players without sight impairment” and requested that they be treated “in accordance with the basic postulates of ethics and fair-play in sports” (see paragraph 21 above). In any event, it is, in the Court’s view, inconceivable that the “prestige” of a game or a sport as such, including for example some of the most popular sports such as football, basketball or tennis, should depend merely on whether it is practised by persons with or without a disability. Indeed, the Court notes that the decree itself placed the Olympics and the Paralympics on an equal footing and thus regarded the achievements of disabled sportsmen and sportswomen in the sports concerned as meriting equal recognition.", "88. Also, in terms of the contribution of chess to the “development and affirmation” of the country’s reputation, equal treatment of blind and sighted chess players for similar achievements, in Serbian legislation as well as in practice, could only have served to enhance the country’s reputation abroad and promote inclusiveness domestically.", "89. The Government likewise attempted to distinguish between Olympic and non-Olympic sports but this distinction is of no relevance in the present context since neither the Chess Olympiad for sighted chess players, which was among the listed competitions in the decree, nor the Blind Chess Olympiad for blind chess players, which was not included in the same decree, were part of the Olympic or Paralympic Games organised by the International Olympic Committee and International Paralympic Committee respectively (see paragraph 23 above).", "90. As regards the budgetary constraints referred to by the Government, the Court notes that, apparently, of all the medal winners and champions over the years, that is a total of some 400 persons including sighted chess players, only blind chess players had been denied their national sporting recognition awards (see paragraph 22 above). Adding the four applicants to this number, therefore, clearly could not have undermined the country’s financial stability, particularly since there is also no suggestion that winning a medal at the Blind Chess Olympiad is, generally speaking, an easily attainable achievement capable of giving rise to many future entitlements.", "91. Lastly, the Court considers that the Government’s submissions to the effect that there was no evidence that any other blind chess players had ever received the national recognition awards in question (see paragraph 73 above) are of no relevance in terms of the difference in treatment between sighted and blind chess players when it comes to their sporting recognition entitlements.", "(δ) Conclusion", "92. In view of the foregoing and notwithstanding the State’s margin of appreciation, the Court cannot but conclude that there was no “objective and reasonable justification” for the differential treatment of the applicants merely on the basis of their disability, it being understood that the said margin is reduced considerably in this particular context (see paragraphs 75 and 78 above). There has accordingly been a violation of Article 1 of Protocol No. 12.", "As regards the applicants’ complaints that as part of the above-established discrimination, as well as the failure of the Serbian authorities to formally recognise their achievements through an honorary diploma, they had suffered adverse consequences to their reputations respectively (see paragraph 45 above)", "93. Having regard to the facts of the case and the submissions of the parties, as well as its findings as set out in paragraphs 81-92 above, the Court considers that it is not necessary to further examine either the admissibility or the merits of these complaints under Article 1 of Protocol No. 12 (see, for example and mutatis mutandis, Kaos GL v. Turkey, no. 4982/07, § 65, 22 November 2016, and Aktiva DOO v. Serbia, no. 23079/11, § 89, 19 January 2021).", "Application of Article 41 of the Convention", "94. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "95. The applicants referred to the judgments rendered by the Novi Sad Court of First Instance on 1 April 2010 and 14 November 2011 respectively, notably the redress afforded therein for the pecuniary and non-pecuniary damage allegedly suffered (see paragraphs 12 and 14 above), and added that “blind chess players [should] also have the right to a cash reward as well as [a] regular monthly income” for their achievements.", "96. The Government contested these claims.", "97. The Court considers that the applicants have certainly suffered some non-pecuniary damage. Having regard to the nature of the violation found in the present case and making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each applicant EUR 4,500 in this connection, plus any tax that may be chargeable on that amount.", "98. Concerning the pecuniary damage, the Government must pay each applicant the accrued and any future financial benefits and/or awards to which he would have been entitled had he been a sighed chess player who had won, for Yugoslavia, a relevant medal at the Chess Olympiad for sighted chess players (see paragraphs 24-34 above), together with the applicable domestic statutory interest as regards the accrued benefits and/or awards only (see, mutatis mutandis, Grudić v. Serbia, no. 31925/08, § 92, 17 April 2012).", "Costs and expenses", "99. The applicant claimed no costs or expenses. Accordingly, the Court makes no award under this head.", "Default interest", "100. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant was born in 1966 and lives in the Paris area.", "10. The applicant has been physically disabled since the age of seven. He was adopted by Mr Bernard Poirrez, a French national, under the terms of a judgment of 28 July 1987 of the Bouaké Court of First Instance. On 11 December 1987 the Bobigny tribunal de grande instance granted authority for the judgment to be executed.", "11. In December 1987 the applicant applied for a declaration of French nationality. His application was found inadmissible on the ground that he was over 18 years old when it was submitted. He appealed to the Bobigny tribunal de grande instance, which gave judgment on 15 January 1988 declaring the application inadmissible. That judgment was upheld by the Paris Court of Appeal on 24 June 1993.", "12. In the meantime, the Seine-Saint-Denis Occupational Counselling and Rehabilitation Board ( commission technique d'orientation et de reclassement professionnel – “ COTOREP ” ) registered the applicant as 80% disabled and issued him with an invalids'card. In May 1990 he applied to the Family Allowances Office ( caisse d'allocations familiales – “ CAF ” ) for the Paris area for an “ allowance for disabled adults ” ( allocation aux adultes handicapés – “AAH ” ). In support of his application, he stated that he was a French resident of Ivory Coast nationality and the adopted son of a French national residing and working in France. His application was rejected on the ground that, as he was neither a French national nor a national of a country which had entered into a reciprocity agreement with France in respect of the AAH, he did not satisfy the relevant conditions laid down in Article L. 821-1 of the Social Security Code (see paragraph 24 below).", "13. On 13 June 1990 the applicant brought his case before the Friendly Settlements Board of the Family Allowances Office.", "14. In a decision of 6 September 1990, the Board confirmed the CAF's decision on the ground that the applicant did not satisfy the conditions laid down in Article L. 821-1 of the Social Security Code. The authorities noted that the Ivory Coast, of which the applicant was a national, had not signed a reciprocity agreement with France in respect of the AAH.", "15. On 26 February 1991 the applicant lodged an application with the Bobigny Social Security Tribunal for judicial review of the decision rejecting his claim. The applicant and the CAF lodged their pleadings on 26 February and 25 April 1991 respectively.", "16. In a judgment of 12 June 1991, the court decided to stay the proceedings pending the referral of a question to the European Court of Justice (ECJ ) for a preliminary ruling. The question was whether the decision not to award the allowance for disabled adults to the applicant, a member of the family (adopted son) of a European Community national resident in the country of which the head of household (the adoptive parent) had the nationality ( in accordance with French legislation ) was compatible with the European provisions contained in the Treaty establishing the European Economic Community ( “the EEC Treaty ” ). In a judgment of 16 December 1992 the ECJ replied to the question with a ruling that the refusal to award the benefit to the applicant was not incompatible with the relevant Articles of the EEC Treaty. It pointed out that the applicant's adoptive father could not claim to be a “migrant worker”, which was the category to which the European provisions in question applied. It based that finding on the fact that the applicant's adoptive father, being French, had always lived and worked in France. The ECJ accordingly concluded that the applicant could not “rely on Community law in support of his application for a social security benefit awarded to migrant workers and members of the family”. In doing so, it did not examine the question whether the refusal to award the applicant the allowance was, in general, compatible with Community law or not.", "17. The applicant started receiving the minimum welfare benefit ( revenu minimum d'insertion – “ RMI ” ) on 17 December 1991.", "18. On 31 March 1993, on the strength of the reply from the ECJ, the Bobigny Social Security Tribunal rejected the application as ill-founded. The applicant appealed against that decision on 27 July 1993. He applied for legal aid on 23 November 1993.", "19. On 14 January 1994 the Legal Aid Office at the Paris tribunal de grande instance rejected the application for legal aid to fund the applicant's appeal on the ground that the request was manifestly ill-founded. On 21 February 1994 the applicant appealed against that decision. In a decision of 5 May 1994 the President of the Legal Aid Office allowed the appeal.", "20. In a judgment of 19 June 1995, the Paris Court of Appeal upheld the decision of 31 March 1993. It referred to the provisions of Article L. 821-1 of the Social Security Code in the wording then applicable and to the lack of a reciprocity agreement between France and the country of the applicant's nationality in respect of the allowance.", "21. On 2 May 1996 the applicant appealed to the Court of Cassation on points of law. The applicant and the CAF lodged their pleadings on 1 August and 21 October 1996 respectively. On 2 June 1997 a reporting judge was appointed. He filed his report on 10 October 1997. A hearing before the Court of Cassation took place on 27 November 1997. In a judgment of 22 January 1998, the Court of Cassation dismissed the appeal lodged by the applicant and worded as follows:", "“ With regard to the applicant's ground of appeal that'... Article 26 of the Covenant of New York prohibits any discrimination, including on grounds of national origin; that, in refusing to award Mr Koua Poirrez an allowance for disabled adults on grounds of his nationality, the Court of Appeal disregarded the binding nature of that provision, which it subsequently breached by refusing to apply ...'”", "22. The Court of Cassation ruled as follows:", "“Article 26 of the International Covenant of New York of 19 December 1966, which prohibits any discrimination on grounds of national origin, cannot be construed as forbidding all nationality criteria on which domestic law makes the availability of a right conditional.", "After reiterating the terms of Article L. 821-1 of the Social Security Code, which restricts the right to an award of the allowance for disabled adults to French nationals and nationals of a country that has signed a reciprocity agreement, the Court of Appeal properly decided that Mr Koua Poirrez, an Ivory Coast national, could not claim that allowance in the absence of a reciprocity agreement between France and the Ivory Coast. ... ”", "23. Following the enactment of the Act of 11 May 1998, which lifted the nationality condition for awards of non-contributory allowances, the applicant reapplied for an allowance for disabled adults from 1 June 1998. His application was rejected by the CAF, whereupon he applied to the Social Security Tribunal again. In a judgment of 11 June 1999 that court declared his application ill-founded on the ground that the applicant had not complied with the formal conditions governing the submission of his application for the allowance because he had not submitted to the CAF all the documentary evidence of his financial situation. The applicant appealed. According to information provided by the Government and undisputed by the applicant, the COTOREP re-examined the applicant's claim, at the request of the CAF, and awarded him the allowance for the period from June 1998 to November 2000. It is not apparent from the file whether the applicant continued to receive the benefit after that date. In any event, the applicant has not made any complaint regarding the current period and has not alleged that the allowance has been withdrawn.", "IX. Social, economic and legal protection", "1. Scope and principles", "1.1. In order to avoid or at least to alleviate difficult situations, sidelining and discrimination, to guarantee equal opportunity for people with disabilities, and to develop personal autonomy, economic independence and social integration, they should have the right to economic and social security and to a decent living standard by:", "– a minimum livelihood;", "– specific allowances; and", "– a system of social protection.", "1.2. If there is a global system of economic and social protection for the population as a whole, people with disabilities should be able to benefit fully from it, and their specific needs must be taken into consideration. In so far as this does not exist, a specific system must be established for continuous provision for people with disabilities.", "1.3. Socio-economic protection must be ensured by financial benefits and social services. This protection must be based on a precise assessment of the needs and the situation of people with disabilities which must be periodically reviewed in order to take into account any changes in personal circumstances which had been the reason for such protection.", "1.4. Economic protection measures must be considered as one of the elements of the integration process for people with disabilities.", "2. Economic and social security", "2.1. In addition to social benefits granted to people with disabilities as well as to other people (for example unemployment benefits), the economic and social security system should grant:", "– special benefits in cash or in kind, for people with disabilities, covering rehabilitation and other special needs, such as medical treatment, vocational training, technical aids, access to and adaptation of housing, transport and communication facilities;", "– special financial support for families who have a child with a disability;", "– adequate assistance, for example installation allowances or investment loans for people with disabilities wishing to become self-employed;", "– a minimum livelihood covering their and their families'basic needs and requirements for people with a degree of disablement which prevents them from working;", "– benefits for people who need the continuous assistance of another person because of their disablement;", "– benefits to people who are unable to seek employment because of care provided to a person with a disability;", "– where financial assistance is given up in order to take up employment, this financial assistance should be protected and guaranteed if employment proves unfeasible;", "... ”", "28. This recommendation also states that “the exercise of basic legal rights of people with disabilities should be protected, including being free from discrimination ”.", "C. The European Social Charter", "29. The European Committee of Social Rights, in Conclusions concerning Article 12 of the Charter in respect of France (15th report, reference period 1997-1998; Conclusions XV-1, vol. 1, p. 2 62, Council of Europe Publishing, 2000 ), states as follows :", "“The Committee notes that Act no. 98-349 on entry of foreign nationals into France, their residence in the country and the right of asylum brings the French Social Security Code into line with the Social Charter. The reciprocity requirement for awarding the AAH and the FSV supplementary allowances to foreigners had been found in breach of the Charter by the Committee since supervision cycle VI for the former and XIII-2 for the latter. Since this requirement has been lifted – the only condition now applied is that the beneficiary be lawfully resident in France (new Article L 816-1 of the Social Security Code) – nationals of all Contracting Parties are now on an equal footing with French nationals. The Committee considers that the situation is now in conformity with Article 12 para. 4 of the Charter. ”" ]

[ "II. RELEVANT LAW", "A. Domestic law", "24. The Disabled Persons Act of 30 June 1975 (Law no. 75-534) provides for the benefit of an allowance for disabled adults. Article L. 821-1 of the Social Security Code, as worded prior to the entry into force of the Act of 11 May 1998, provided for the award of this minimum income to any disabled person, subject to the fulfilment of certain conditions:", "“ Any French national or national of a country that has signed a reciprocity agreement in respect of benefits payable to disabled adults resident in metropolitan France ... who is over the age of entitlement to the special education allowance provided for in Article L. 541-1 and whose permanent disability is at least equal to the percentage determined by decree, shall receive an allowance for disabled adults if they are not eligible for an old-age or invalidity or employment-injury benefit under a social security or retirement pension scheme or special legislation of an amount at least equal to that of the allowance. ”", "25. The Aliens (Conditions of Entry, Residence and Asylum) Act of 11 May 1998 (Law no. 98- 34 9) abolished the nationality condition. Since that Act was passed, any foreign national lawfully resident in France may claim the allowance.", "26. With regard to another benefit, namely the supplementary allowance paid by the National Solidarity Fund, the Court of Cassation has ruled that the refusal to award the benefit solely on the ground of their foreign nationality to claimants resident in France who received an invalidity pension under the French scheme breached Article 14 of the Convention and Article 1 of Protocol No. 1 ( Social Division, judgment of 14 January 1999, published in the Bulletin ).", "B. Recommendation of the Committee of Ministers No. R (92) 6", "27. Recommendation No. R ( 92) 6 on a coherent policy for people with disabilities, adopted by the Committee of Ministers of the Council of Europe on 9 April 1992, cross- refers to its Appendix, which provides, inter alia, as follows:", "“ ...", "2. Aims", "All people who are disabled or are in danger of becoming so, regardless of their age and race, and of the nature, origin, degree or severity of their disablement, should have a right to the individual assistance required to enable them to lead a life as far as possible commensurate with their ability and potential. Through a coordinated set of measures they should be enabled to:", "...", "– have a minimum livelihood, if appropriate by means of social benefits;", "...", "4. General directives", "To implement this policy States should take the following steps:", "...", "– ensure that people with disabilities enjoy a respectable standard of life, if necessary by means of economic benefits and social services;", "...", "Social provisions remain, however, in many spheres an essential means of either activating and supporting self-help or initiating and promoting rehabilitation and integration processes. ...", "THE LAW", "30. In the first place, the applicant challenged the Court's decision of 13 March 2001 declaring his application partly admissible in that it rejected as manifestly ill-founded his complaint about the procedure concerning his application for French nationality.", "31. The Court considers that the arguments advanced by the applicant are not such as to call into question its decision on that point.", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1", "32. The applicant complained of a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. Those provisions are worded as follows:", "Article 14 of the Convention", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 1 of Protocol No. 1", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. Applicability of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1", "1. Arguments before the Court", "33. The Government contended that the right of property protected by Article 1 of Protocol No. 1 did not include non-contributory benefits such as the allowance for disabled adults. That allowance took the form of assistance rather than an actual right to payment or an acquired right, as could be seen from the fact that, under French law, it was not a predetermined allowance and was subject to conditions. The Government submitted that Gaygusuz v. Austria ( judgment of 16 September 1996, Reports of Judgments and Decisions 1996 - IV) supported their contention since, in their view, the Court had expressly pointed out that entitlement to a social benefit was linked to the payment of contributions. In the Government's submission, the decisions given in Michael Matthews, in which they agreed with the British Government's submissions, did not enable it to be determined whether or not the benefit in question was a “possession” within the meaning of Article 1 of Protocol No. 1 ( see Michael Matthews v. the United Kingdom, no. 40302/98, decision of 28 November 2000 and judgment of 15 July 2002). The Government submitted that the complaint was therefore inadmissible ratione materiae.", "34. In the applicant's submission, the allowance for disabled adults amounted to a “possession” within the meaning of Article 1 of Protocol No. 1 and the refusal to award it to him had breached his right to peaceful enjoyment of that possession. He argued that the refusal had been based on a discriminatory criterion, namely the fact of his being a foreign national from a non-European Union country that had not signed a reciprocity agreement in respect of the allowance for disabled adults. He submitted that the concept of “ possession ” had been widely extended by the Court's case-law.", "The applicant also pointed out, among other things, that in Diop, which concerned the crystallisation of retirement pensions paid to foreign nationals, the Paris Administrative Court of Appeal, whose judgment was upheld by the Conseil d'Etat on 30 November 2001, had dismissed the argument advanced by the Minister for the Economy, Finance and Industry that the pension was not a “possession” within the meaning of Article 1 of Protocol No. 1 because no correlation could be established between the contributions paid and the pensions awarded by the State, which, moreover, funded that special scheme from its budget. The applicant, referring to further examples of administrative case-law, inferred from this that the distinction as to whether the benefit was contributory or not was invalid. He also referred to the example of the minimum welfare benefit (that he had received for a time ), which varied according to any income from a professional activity and which could potentially be claimed by anyone aged 25 who had never worked and which was not subject to any nationality condition. Accordingly, he considered himself entitled to a right that had been unlawfully denied him for discriminatory reasons regarding his nationality.", "35. Mr Bernard Poirrez, the applicant's adoptive father, who had been given leave to intervene in the present proceedings, submitted that the AAH was a “possession” within the meaning of Article 1 of Protocol No. 1.", "2. The Court's assessment", "36. The Court reiterates that Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence, since it has effect solely in relation to the “ rights and freedoms ” safeguarded by those provisions. Although the application of Article 14 does not necessarily presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 198 5, Series A no. 94, p. 35, § 71, and Inze v. Austria, judgment of 28 October 1987, Series A no. 126, p. 17, § 36).", "37. The Court also points out that it has already held that the right to emergency assistance - in so far as provided for in the applicable legislation – is a pecuniary right for the purposes of Article 1 of Protocol No. 1. That provision is therefore applicable without it being necessary to rely solely on the link between entitlement to emergency assistance and the obligation to pay “ taxes or other contributions ” ( see Gaygusuz, cited above, p. 1142, § 41). In that connection, the Court considers that the fact that, in that case, the applicant had paid contributions and was thus entitled to emergency assistance ( ibid., pp. 1141-42, § 39) does not mean, by converse implication, that a non-contributory social benefit such as the AAH does not also give rise to a pecuniary right for the purposes of Article 1 of Protocol No. 1.", "38. In the instant case, it was not disputed that the applicant had been registered as 80% disabled and issued with an invalids'card. His claim for an allowance for disabled adults was refused solely on the ground that he was neither a French national nor a national of a country that had signed a reciprocity agreement in respect of the AAH.", "Accordingly, the Court notes that the allowance could be awarded both to French nationals and to nationals of a country that had signed a reciprocity agreement with France to that end.", "39. In the Court's view, the fact that the applicant's country of origin had not signed such an agreement, whereas the applicant had been issued with an invalids'card, resided in France, was the adopted son of a French citizen residing and working in France and, lastly, had previously been receiving the minimum welfare benefit, did not in itself justify refusing him the allowance in question. As the allowance is moreover intended for persons with a disability, the Court also refers to Recommendation No. R (92) 6 of the Committee of Ministers, adopted on 9 April 1992 (see paragraph 27 above), which is aimed at the adoption of a policy and measures adapted to the needs of persons with disabilities, and to the conclusions of the European Committee of Social Rights (see paragraph 29 above).", "40. Furthermore, the Court notes that the nationality condition for the award of the allowance was abolished by the Act of 11 May 1998. The AAH has therefore been awarded without any distinction on grounds of nationality since that Act was enacted. The applicant has indeed received it since June 1998, that is immediately after the Act was passed.", "41. The Court considers finally that the refusal to award the allowance to the applicant prior to June 1998 was based on criteria – possession of French nationality or the nationality of a country having signed a reciprocity agreement with France in respect of the AAH – which amount to a distinction for the purposes of Article 14 of the Convention.", "42. Having regard to all the foregoing considerations, the Court holds that the applicant had a pecuniary right for the purposes of Article 1 of Protocol No. 1 and that Article 14 of the Convention is also applicable in the instant case.", "B. Compliance with Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1", "1. Arguments before the Court", "43. The Government submitted that the applicant's complaint based on discrimination contrary to Article 14 was ill-founded. They pointed out that the distinction made, prior to the 1998 Act, between nationals and foreigners when awarding the allowance for disabled adults pursued a legitimate aim, which was a balance between the State's welfare income and expenditure. The requirement of proportionality had also been satisfied, as foreign nationals had not been deprived of all resources since they were entitled to, among other things, the RMI. The Government also pointed out that, although the applicant had been unable to acquire French nationality by declaration, he could have requested his naturalisation and benefited from the allowance for disabled adults without being disqualified by the nationality condition.", "44. The applicant disputed that submission, considering that the allowance for disabled adults was an actual pecuniary right acquired subject to fulfilment of the conditions as to a maximum income limit and a particular disability rate, which had been the case when he had first applied in 1990. The CAF's refusal to award him the allowance had thus infringed his right on the ground of his nationality.", "45. Mr Bernard Poirrez submitted that nationality was also referred to in Articles 2 § 2, 3 and 4 of Protocol No. 4, and that it had served as a basis for discrimination regarding awards of the allowance in question.", "2. The Court's assessment", "46. According to the Court's case-law, a distinction is discriminatory, for the purposes of Article 14, if it “ has no objective and reasonable justification ”, that is if it does not pursue a “ legitimate aim ” or if there is not a “ reasonable relationship of proportionality between the means employed and the aim sought to be realised ”. Moreover the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see, inter alia, Gaygusuz, cited above, p. 1142, § 42; Larkos v. Cyprus [GC], no. 29515/95, § 29, ECHR 1999 - I; and Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR 2000 - IV). However, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention ( see Gaygusuz, cited above, p. 1142, § 42).", "47. In the instant case, the Court notes in the first place that the applicant was legally resident in France, where he received the minimum welfare benefit, which is not subject to the nationality condition. It reiterates that the domestic authorities'refusal to award him the allowance in issue was based exclusively on the fact that he did not have the requisite nationality, which was a precondition for obtaining the allowance under Article L. 821-1 of the Social Security Code as applicable at the material time.", "48. In addition, it has not been established, or even alleged, that the applicant did not satisfy the other statutory conditions entitling him to the social benefit in question. In that connection, the Court can only note that the applicant did receive the AAH after the 11 May 1998 Act had abolished the nationality condition. He was therefore in a like situation to that of French nationals or nationals of a country that had signed a reciprocity agreement as regards his right to receive the benefit. The Court notes that the Court of Cassation also considered that the refusal – solely on grounds of foreign nationality – to award the supplementary allowance payable by the National Solidarity Fund to a claimant resident in France who received an invalidity pension under the French scheme breached Article 14 of the Convention and Article 1 of Protocol No. 1 (see paragraph 26 above).", "49. The Court therefore finds the arguments advanced by the Government unpersuasive. The difference in treatment regarding entitlement to social benefits between French nationals or nationals of a country having signed a reciprocity agreement and other foreign nationals was not based on any “objective and reasonable justification” (see, conversely, Moustaquim v. Belgium, judgment of 18 February 1991, Series A no. 193, p. 20, § 49). Even though, at the material time, France was not bound by reciprocity agreements with the Ivory Coast, it undertook, when ratifying the Convention, to secure “ to everyone within [its] jurisdiction ”, which the applicant indisputably was, the rights and freedoms defined in Section I of the Convention ( see Gaygusuz, cited above, p. 1143, § 51).", "50. There has accordingly been a breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "51. The applicant maintained that the proceedings had not been conducted within a reasonable time as required by Article 6 § 1 of the Convention, the relevant part of which provides:", "“ In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”", "1. Arguments before the Court", "52. The Government's primary submission was that the complaint was inadmissible because it was incompatible ratione materiae with the provisions of Article 6 § 1. The applicant could not claim to have a “civil right” within the meaning of that provision, since the legislation applicable at the material time did not entitle him to obtain the allowance in question.", "53. In the alternative, the Government submitted that the complaint based on the excessive length of the proceedings was ill-founded on account of the undeniable complexity of the case (illustrated, among other things, by the need for the trial judge to refer a question to the European Court of Justice for a preliminary ruling) and on account of its reduced importance on the merits, which meant there was no need for special diligence (since the applicant was entitled to the RMI). The Government also stressed that the applicant had instituted numerous proceedings and that the courts dealing with the case had been sufficiently diligent in deciding it. While acknowledging a certain period of inactivity before the Paris Court of Appeal and the Court of Cassation, they reiterated that the first had considered it necessary to obtain an opinion from Principal State Counsel and that the Court of Cassation had conducted the proceedings diligently from the time of the reporting judge's appointment in June 1997.", "54. The applicant contested that submission. He argued that the dispute did concern a “civil right” within the meaning of Article 6 § 1 because he should have been awarded the allowance in issue on account of his registered invalidity and regardless of his nationality. He pointed out, in particular, that he could rely on that right on the basis of provisions of European law that took precedence over French law. He referred to a judgment of the Court of Cassation of 17 October 1996 upholding an award of the AAH to an Algerian on the ground that there was an agreement between Algeria and the EEC, and to a judgment of the Haute-Savoie Social Security Tribunal of 15 May 1997 basing its decision to award the benefit on the Lomé Convention. Lastly, the applicant disputed the Government's submissions regarding the length of the proceedings, arguing that his case had not been sufficiently complex to justify the length of the proceedings and that the real reason for the excessive length had been the lack of diligence on the part of the French authorities.", "55. Mr Bernard Poirrez submitted that the length of the proceedings was unreasonable and that the responsibility for this lay principally with the authorities, which had failed to grasp or, more seriously, had breached the hierarchy of legal norms.", "2. The Court's assessment", "56. Regarding the applicability of Article 6 § 1 of the Convention, the Court refers to its finding that the applicant was entitled to the AAH, which was a pecuniary right for the purposes of Article 1 of Protocol No. 1 (see paragraph 42 above). Accordingly, the Court concludes that the right was a “civil” one. Furthermore, it cannot be disputed that this pecuniary “right” was the subject of a “dispute” before the domestic courts (see also Mennitto v. Italy [ GC], no. 33804/96, §§ 23 et seq., ECHR 2000 - X).", "57. Article 6 § 1 is therefore applicable in the instant case.", "58. The Court notes that the period to be considered started on 13 June 1990 when the case was referred to the Friendly Settlements Board and ended on 22 January 1998 with the judgment of the Court of Cassation. It therefore lasted seven years, seven months and nine days for three levels of jurisdiction.", "59. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria laid down in its case-law, especially the complexity of the case and the conduct of the applicant and the relevant authorities (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 ‑ VII).", "60. It agrees with the Government that there was a certain degree of complexity in the instant case.", "61. With regard to the conduct of the parties, the Court considers that the applicant cannot be criticised for having taken full advantage of the remedies available to him. With regard to the domestic authorities, it does not find any significant period of inactivity attributable to them. The Court also reiterates that the length of the proceedings before the ECJ, namely over eighteen months in the present case, cannot be taken into consideration ( see Pafitis and Others v. Greece, judgment of 26 February 1998, Reports 1998 ‑ I, p. 459, § 95).", "62. Lastly, the financial stakes in the proceedings, although substantial, are not decisive in the instant case because the applicant received the RMI from 17 December 1991 (see paragraph 17 above).", "63. Having regard to the foregoing, the Court considers that the length of the proceedings did not exceed the “reasonable time” required by Article 6 § 1.", "64. Accordingly, there has been no violation of Article 6 § 1 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "65. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "66. The applicant claimed 184,0 00 French francs (FRF), that is 28,050 euros (EUR), for the pecuniary loss sustained as a result of the difference in amount between the RMI and the AAH between 1990 and 1998. He also claimed FRF 500,000 ( EUR 76,224 ) for the non-pecuniary damage sustained as a result of the refusal to grant him French nationality, FRF 200,000 (EUR 30,489) for the French State's resistance and FRF 10 0 ,000 (EUR 15,244) for the length of the proceedings.", "67. Mr Bernard Poirrez, the third party, claimed FRF 400,000 (EUR 60,979) for non-pecuniary damage distinct from that sustained by his son, and FRF 100,000 (EUR 15,244) for the length of the proceedings.", "68. The Government submitted, inter alia, that the applicant could not claim compensation for the refusal to grant him French nationality, that he had ceased to be a victim since the 1998 Act was passed and that, in any event, a finding of a violation of Article 14 of the Convention and of Article 1 of Protocol No. 1 would not give rise to a right to any compensation.", "Regarding the complaint based on the length of the proceedings, they submitted that, in respect of the amounts claimed under that head and under the head of costs and expenses, the sum of FRF 40,000 ( EUR 6,079. 96 ) would be appropriate just satisfaction.", "Lastly, the Government maintained that Mr Bernard Poirrez could not claim any compensation under Article 41 because he was not an applicant.", "69. The Court reiterates first of all that, under Article 36 § 2 of the Convention and Rule 61 § 3 of the Rules of Court, the President of the Court may, among other things, invite any person concerned who is not the applicant to submit written comments or take part in hearings. Mr Bernard Poirrez was given leave to intervene, which conferred only third- party and not applicant status on him, as is evident from the wording of the above-cited provisions.", "70. With regard to the applicant, the Court reiterates that the complaint based on the refusal to grant him French nationality was rejected by the Court's decision of 13 March 2001 declaring his application partly admissible. Accordingly, no just satisfaction can be awarded under that head.", "As to the rest, without wishing to speculate as to the amount of AAH to which the applicant was entitled and the date on which he could have claimed it, the Court must nonetheless take into account the fact that he undoubtedly suffered pecuniary and non-pecuniary damage. Making an assessment on an equitable basis, as is required by Article 41 of the Convention, it awards him EUR 20,000 to cover all the heads of damage.", "B. Costs and expenses", "71. The applicant claimed FRF 40,00 0 net of tax ( EUR 6,079.96 ) for costs and expenses, having regard to the “ extent of the research and the dilution of the proceedings over time ”.", "72. The Government did not directly express a view, their submissions covering the applicant's claims regarding his complaint under Article 6 and for costs (see paragraph 68 above).", "73. If the Court finds that there has been a violation of the Convention, it may award an applicant not only the costs and expenses incurred before the Strasbourg institutions, but also those incurred before the national courts for the prevention or redress of the violation (see, among other authorities, Hertel v. Switzerland, judgment of 25 August 1998, Reports 1998 -VI, p. 2334, § 63). An award in respect of costs and expenses before the Court can be made only in so far as they have been actually and necessarily incurred and are reasonable as to quantum (see, for example, Kress v. France [GC], no. 39594/98, § 102, ECHR 2001 - VI).", "74. In the instant case, the Court finds the amounts claimed by the applicant for costs manifestly excessive. Furthermore, as no breakdown has been provided, there is no way of ascertaining the extent to which they were incurred for the prevention or redress of just the violations found by the Court. That being so, in the light of the written and oral steps evidently taken by his lawyer, the Court awards the applicant EUR 3,000 under this head.", "C. Default interest", "75. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant was born in 1949 and lives in Reykjavik.", "In 1969, at the age of 20, the applicant completed his training as a navigation officer at the Icelandic College of Navigation and started work as a seaman. This he continued to do until 1978, when he sustained a serious work accident on board a trawler. His right leg was struck by a 200 kg stone object, causing a compound fracture of his ankle. As a result, he had to give up work as a seaman. His disability was assessed at 100%, which made him eligible for a disability pension from the Seamen ’ s Pension Fund (“the Pension Fund”), to which he paid premiums intermittently from 1969 until 1981. The assessment was made on the basis of the criteria that applied under section 13 (1) and (4) of the Seamen ’ s Pension Fund Act ( Law no. 49/1974 – “the 1974 Act” ), notably that the claimant was unable to carry out the work he had performed before his disability, that his participation in the Fund had been intended to insure against this contingency, and that he had a sustained loss of fitness for work (of 35% or more).", "The applicant underwent regular disability assessments by a physician accredited by the Pension Fund and was each time assessed as 100% disabled in relation to his previous job.", "9. After his accident the applicant joined a transport company, Samskip Ltd, as an office assistant, and is still employed there as head of the claims department.", "A. Legislative amendments leading to the applicant ’ s loss of his disability pension entitlements", "10. In 1992 the 1974 Act was amended by sections 5 and 8 of Law no. 44/1992 (“the 1992 Act”), which considerably altered the basis for the assessment of disability in that the assessment was to be based not on the Pension Fund beneficiaries ’ inability to perform the same work but work in general. The new provisions had been enacted on the initiative of the Pension Fund and in view of the Fund ’ s financial difficulties (according to an audit, at the beginning of 1990 the Pension Fund had a deficit of at least 20,000,000,000 Icelandic krónur ( ISK ) ). The Pension Fund applied the new provisions not only to persons who had claimed a disability pension after the date of their entry into force but also to persons who were already in receipt of a disability pension before that date.", "11. Under an interim provision in section 5, the above change to the reference criteria was not to apply for the first five years after the commencement of the 1992 Act to a person who, before its entry into force, was already receiving a disability pension.", "12. Under the new rules, a fresh assessment of the applicant ’ s disability was carried out by an officially accredited Pension Fund physician, who concluded that the applicant ’ s loss of capacity for work in general was 25%, and thus did not reach the minimum level of 35%. As a result, from 1 July 1997 onwards the Pension Fund stopped paying the applicant the disability pension and related child benefits he had been receiving for nearly twenty years since the accident in 1978.", "13. According to information obtained by the Government from the Pension Fund and submitted to the Court, the applicant had been one of 336 Fund members who were receiving disability pensions in June 1992 under the interim provision in section 5 of the 1992 Act (see paragraph 21 below). On 1 July 1997 the total number of disability pension recipients was 689. This included Fund members who had not become entitled to a disability pension until after the commencement of the 1992 Act in June 1992. The cases of the aforementioned 336 persons receiving disability pensions from the Fund, who had acquired their entitlement before that time and were still drawing disability pensions in 1996, were reviewed in late 1996 and early 1997 in the light of their capacity for work in general. Altogether, 104 members of this group of disability pensioners had their benefits reduced in July 1997 as a result of the new rules on disability assessment under the 1992 Act. In the case of 54 Fund members, including the applicant, the disability rating for work in general did not reach the level of 35% required under the Act to retain entitlement to disability benefit, and so benefit payments were discontinued. The disability ratings of 29 members were reduced from 100% to 50% and those of 21 members from 100% to 65%.", "14. The applicant instituted proceedings against the Pension Fund and, in the alternative, against both the Fund and the Icelandic State, challenging the Fund ’ s decision to discontinue the payments to him. In a judgment of 12 May 1999, the Reykjavik District Court found for the defendants.", "15. The applicant appealed to the Supreme Court, which by a judgment of 9 December 1999 upheld the judgment of the District Court.", "16. The Supreme Court accepted that the applicant ’ s pension rights under the 1974 Act were protected by the relevant provisions of the Icelandic Constitution as property rights. However, it considered that the measures taken by virtue of the 1992 Act had been justified by the Pension Fund ’ s financial difficulties. The Supreme Court stated:", "“ The pension rights that the appellant had earned under Law no. 49/1974 were protected under what was then Article 67 of the Constitution ( currently Article 72 of the Constitution – see section 10 of the Constitutional Law Act, Law no. 87/1995). Under the constitutional provision referred to above, he could not be deprived of those rights except under an unequivocal provision of law. The Court does not consider that section 8 of Law no. 49/1974 provided authorisation for the [Pension Fund] Board to curtail the benefit provisions; this could only be done under an unequivocal provision of law. Nor can the Court accept that the wording of subsection ( 1 ) of section 13 of Law no. 49/1974 meant that the Fund member did not have an unequivocal right to have his disability assessed in terms of his capacity to do his previous job.", "The evidence in the case shows that the Pension Fund was operated at a considerable deficit, and that at the end of 1989 more than ISK 20,000 ,000,000 would have been needed for the principal of the Fund, together with the premiums that it could expect, to cover its commitments, this estimate being based on an annual interest rate of 3%. In order to tackle this large deficit, the Fund ’ s Board asked for amendments to be made to the Act under which the Fund operated. It is clear that the reduction of the pension rights that resulted from Law no. 44/1992 was based on relevant considerations. Even though that Act was repealed by Law no. 94/1994, this does not change the fact that the appellant ’ s legal position had already been determined by Law no. 44/1992. The Court concurs with the District Court ’ s view that Law no. 94/1994 did not constitute a valid legal authorisation for making amendments to the rights that the Fund member had earned during the period of validity of the former legislation.", "The reduction according to Act no. 44/1992 was of a general nature as it treated in a comparable manner all those who enjoyed or could enjoy pension rights. An adaptation period of five years applied to all pensioners, as stated above. All those who can be considered to be in a comparable situation have been treated equally ... ”", "B. Details of the applicant ’ s loss of income", "17. On 1 July 1997 the applicant lost pension rights (disability and children ’ s annuity benefits) amounting to ISK 12,637,600. He presented the following breakdown of this figure:", "Value of the principal, based on disability pension payment of ISK 61,356 per month until he reached the age of 65 : ISK 9,373,300", "Value of the principal of child benefit based on the same premises, until the children reached the age of 18:", "Kristinn July 1997 - March 1998 ISK 136,100", "Anna Margrét July 1997 - August 2006 ISK 1,469,600", "Asmundur July 1997 - January 2009 ISK 1,658,600", "Total ISK 12,637,600", "18. The applicant has supplied the following information about his income from 1997 onwards :", "1997 ISK 2,789,995", "1998 ISK 3,305,268", "1999 ISK 3,454,445", "2000 ISK 3,774,248", "2001 ISK 4,187,987", "2002 ISK 4,558,248", "Total ISK 22,05 0,191", "19. The applicant has also submitted certain figures from a survey of seamen ’ s salaries obtained from the Icelandic Merchant Navy and Fishing Vessels Officers ’ Guild :", "“Ordinary seaman” Second mate First mate Master", "1997 5,153,424 6,441,780 7,730,137 10,306,849", "1998 5,580,795 6,975,994 8,371,193 11,161,590", "1999 6,166,029 7,707,537 9,249,044 12,332,059", "2000 5,949,075 7,436,344 8,923,613 11,898,150", "2001 6,415,252 8,019,064 9,622,877 12,830,503", "2002 5,654,756 7,068,445 8,482,134 11,309,513", "Total 34, 919, 332 43,649,164 52,378,997 69,838,663", "Income derived by the applicant from office work :", "22,050,191 22,050,191 22,050,191 22,050,191", "Difference 12,869,141 21,598,973 30,328,806 47,788,472" ]

[ "II. RELEVANT DOMESTIC LAW", "20. Section 13(1) and (4) of the Seamen ’ s Pension Fund Act (Law no. 49/1974 – “the 1974 Act”) read:", "“ ( 1 ) Each Fund member who has paid premiums to the Fund for the past three calendar years, and for at least six of the past twelve months, shall be entitled to a disability pension if he suffers a loss of fitness for work that the senior consulting physician assesses at 35% or more. This disability assessment shall be based mainly on the Fund member ’ s incapacity to do the job in which he was engaged and on which his membership of the Fund is based. Despite being disabled, no person shall be entitled to a disability pension while retaining full wages for the job that he used to do, or while receiving equally high wages for another job which grants pension rights, and the pension shall never be higher than the equivalent of the loss of income demonstrably incurred by the Fund member as a result of his disability.", "...", "( 4 ) A disabled person who applies for a disability pension from the Fund or receives such a pension shall be obliged to provide the Board of the Fund with all the information on his health and earned income that is necessary to determine his right to receive the pension.”", "Under section 15(3) of the 1974 Act the applicant was eligible to receive child benefits.", "21. Section 5 of Law no. 44/1992 (“the 1992 Act”) read:", "“ For the first five years after the commencement of this Act, the disability assessment of disability pensioners who already receive benefit due to loss of working capacity before the commencement of the Act shall be based on their incapacity for the job in which they were previously engaged and on which their membership of the Fund is based, but after that time it shall be based on their incapacity for work in general. Furthermore, the change in the child benefit entitlement of the recipients of disability pensions resulting from section 8 of this Act shall not take effect until five years after the commencement of the Act. ”", "22. The 1974 Act, as amended by the 1992 Act, was replaced by Law no. 94/1994 (“the 1994 Act”) when it came into force on 1 September 1994. All the provisions covering the basis of disability pensions and child benefit payments were removed from the Act and included in the Regulations on the Seamen ’ s Pension Fund, which also came into force on 1 September 1994. According to the Government, this did not affect the applicant specifically, since the interim provision of the 1992 Act still applied to his situation until 1 July 1997. The applicant contended that the interim provision had been repealed on 1 September 1994.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 AND OF ARTICLE 14 OF THE CONVENTION", "23. The applicant complained that the discontinuation of his disability pension had given rise to a violation of Article 1 of Protocol No. 1, taken on its own and in conjunction with Article 14 of the Convention. Those Articles provide:", "Article 1 of Protocol No. 1", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "Article 14 of the Convention", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "24. The Government disputed the applicant ’ s allegation and invited the Court to find that no violation had occurred in the present case.", "A. Alleged violation of Article 1 of Protocol No. 1", "1. The applicant", "25. The applicant argued that his pension rights fell within the scope of protection of Article 1 of Protocol No. 1 and that the national measures depriving him of these rights entailed an interference with the peaceful enjoyment of his possessions within the meaning of this provision.", "26. The applicant further submitted that, contrary to former Article 67 (currently Article 72) of the Icelandic Constitution, the deprivation of his pension rights had not been based on any clear and unequivocal national legal provision. Indeed, the measure had been taken without any legal authority. The retroactive application of the new rules had been founded on an interim provision which had been repealed three years before the authorities decided to cease payment of his pension in June 1997. Thus, the interference with the peaceful enjoyment of his possessions had been unlawful.", "27. In the applicant ’ s view, there was no reasonable relationship between the interference and the interests pursued. According to figures supplied by the Government, at the material time there were 689 persons receiving disability pensions from the Pension Fund. The applicant was one of 54 individuals who had lost their entitlement in similar circumstances, a tiny group constituting only about 0.1% of the Fund ’ s total membership, which last year comprised 38,584 members. On any analysis, the restrictions imposed affected only a very small minority and could by no means be regarded as having been of any significant financial advantage to the Fund or as having served the purpose of the Fund.", "28. No comparable restrictions had been imposed on the pension rights of other Fund members. The contested measure could not be described as a general measure aimed at an unspecified group of persons in accordance with the principle of equality. In Iceland there was no legal tradition of depriving active pensioners of annuity rights without the payment of compensation.", "29. The applicant refuted the Government ’ s suggestion that his disability rating of 100% in terms of loss of fitness for work as a seaman did not affect his chances of earning income to support himself through work on shore. The applicant stated that he had been employed on shore since 1978, but as his disability had substantially reduced his employment possibilities, he had been employed in office work for a transport company on a salary which was only a fraction of what he would have earned as a seaman. Even if he had continued to receive a pension, his total income would have been considerably less than he would have earned as a seaman.", "30. The applicant stressed that his income was irrelevant. As a result of the impugned measures, he had been totally deprived of his disability pension entitlements. This would have happened even if he had been unemployed. His subsistence had become completely dependent on his maintaining his office job on shore.", "31. Finally, the applicant strongly objected to the Government ’ s contention that he had not suffered any financial loss in that, by reason of the level of his income from employment, the payment of a disability pension would normally have been discontinued under section 13 of the 1974 Act according to the rules operated by the Fund. However, to the applicant ’ s knowledge no such rules had been in force and accessible at the material time. Indeed, any such rules would have been inconsistent with the applicable legislation. The fact was that he would have received a much higher salary had he continued to work as a seaman. He had neither retained a full salary for the job that he used to do nor an equally high salary for another job. This was amply demonstrated by the figures he had presented to the Court and to which the Government had not objected.", "2. The Government", "32. The Government disputed the applicant ’ s submissions. It was clear that the legislative amendments in question were the logical and necessary consequences of the financial position of the Pension Fund at the material time. Their aim was to serve the general interest of its members and the amendments had been made in accordance with the law. The Government emphasised that the decision to adopt new criteria for the assessment of disability applied in an objective manner to all those who were in the same position. The changes made had been instigated by the Fund ’ s Board, composed of representatives of employers and employees, including those of the employees ’ organisation of which the applicant was a member.", "The purpose of a disability pension paid from the Fund was indisputably to provide financial assistance to those who had had their working capacity reduced and who had need of special assistance in order to ensure their subsistence. In instances where this mattered, recipients of a disability pension would be given time to adapt themselves to changed conditions, notably through the provision of retraining, irrespective of whether they had started to receive a disability pension before or after the entry into force of the new legislation.", "33. The Government accepted that the impugned measure constituted an interference with the applicant ’ s peaceful enjoyment of his possessions for the purposes of the first paragraph of Article 1 of Protocol No. 1. However, they maintained that the interference was justified under the second paragraph of that Article. The measure was provided for by law, it was in accordance with the general interests of the community and there was a reasonable relationship of proportionality between the interference and the interests pursued.", "34. The Government stressed that the applicant retained his full right to receive a retirement pension from the Pension Fund.", "35. The right to disability pension benefits should be subject to the ordinary considerations of compensation, namely the basic principle in the law on liability that the claimant should receive full compensation, but not more. It had been noted that a considerable number of former seamen who had paid premiums to the Pension Fund and who were no longer considered capable of working at sea due to disability had been receiving disability pensions from the Fund, notwithstanding the fact that they were in full employment on shore. The applicant was such a person. He was in full employment on shore and thus earned income to support himself, but under the former rules he also received a full disability pension.", "36. After it had been established by the methods prescribed by law, according to section 8 of the 1974 Act, that there was an operational deficit in the Seamen ’ s Pension Fund, the first obligation of the Board of the Fund was to reduce or stop expenditure such as the payment of disability pensions to those who had not suffered any loss of income through their loss of fitness for work, as they were demonstrably able to perform work other than as seamen.", "These measures, which curtailed the applicant ’ s rights to disability benefit, were no more extensive than was necessary in terms of the aim they were intended to achieve. Admittedly they only curtailed the rights of those Fund members who were no longer able to work as seamen, but this was done in such a way that this group had the full possibility of earning income on shore, and the majority of them were in fact already earning such income.", "37. The Government strongly contested the applicant ’ s view that he could lawfully expect to receive an undiminished disability pension from his pension fund for the next twenty years in addition to the income he received from full employment, and that his financial plans for the future had been based on this premise. They pointed out that at no time was the applicant ’ s right unconditional in the way he maintained, and the 1974 Act gave him no grounds for harbouring any such expectations. Even if no amendments had been made to that Act, the applicant had already become ineligible to receive a pension, having regard to the terms of the condition stated in the final sentence of section 13(1). This clearly stated that no person was entitled to a disability pension if he received equally high wages for another job which granted pension rights, and that the pension could never be higher than the equivalent of the loss of income demonstrably incurred by the Fund member as a result of his disability. During the period until 1 July 1997 when it was making pension payments to him, the Seamen ’ s Pension Fund had no information about the applicant ’ s employment earnings, despite pension beneficiaries ’ duty under section 13 (4) of the Act to provide such information. At the time when the Act was in force, the Pension Fund did not actively monitor whether disability pensioners received wages from paid employment at the same time as drawing compensation payments; for example, disability pensioners were not required to submit tax returns to the Fund. In all likelihood, the applicant ’ s right to receive compensation had actually expired before 1 July 1997; judging by the information submitted by the applicant regarding his income as a head of department at Samskip after 1 July 1997 ( see his letter to the Court dated 12 June 2003), it could be stated with certainty that he was no longer entitled after that date.", "38. The Government rejected the view that other Fund members had been treated differently from the applicant when it came to the restriction of their benefit rights, thus resulting in a violation of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention. There were many Fund members in a similar or identical position to the applicant.", "The Government stressed that Fund members already in receipt of disability pensions had certainly not been singled out as a small and isolated group of beneficiaries who were expected to shoulder the entire burden of the Fund ’ s financial difficulties. Many other changes of various types had been made to the laws and regulations of the Fund as part of its measures to put its finances in order, the 1992 Act being a part of these, and they affected all Fund members in one way or another. Thus, in 1994, the 1994 Act and the regulations issued under it had made considerable changes to the rights of both current and potential beneficiaries of the Fund. The rights of Fund members aged 60 to 65 to receive old- age pensions had been altered, and considerably reduced. These changes also brought the rules of the Seamen ’ s Pension Fund on old- age pensions into line with those of other Icelandic pension funds, where entitlement to draw an old- age pension generally began at the age of 65.", "It was clear from the figures presented (see paragraph 13 above) that the new rules, which were based on general, objective and, not least, completely relevant considerations, had affected nearly 30% of all the members of the Fund who had acquired active disability pension rights prior to the commencement of the 1992 Act, and had had exactly the same consequences for all those who were in a comparable position.", "3. The Court ’ s assessment", "39. The Court reiterates that Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules ( see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, pp. 29-30, § 37). The first rule, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to the peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule.", "According to the Convention institutions ’ case-law, the making of contributions to a pension fund may, in certain circumstances, create a property right and such a right may be affected by the manner in which the fund is distributed ( see Bellet, Huertas and Vialatte v. France ( dec .), nos. 40832/98, 40833/98 and 40906/98, 27 April 19 99, and Skorkiewicz v. Poland (dec.), no. 39860/98, 1 June 1999 ). Moreover, the rights stemming from payment of contributions to social insurance systems are pecuniary rights for the purposes of Article 1 of Protocol No. 1 ( see Gaygusuz v. Austria, judgment of 16 September 1996, Reports of Judgments and Decisions 199 6-IV, p. 1142, §§ 39-41). However, even assuming that Article 1 of Protocol No. 1 guarantees benefits to persons who have contributed to a social insurance system, it cannot be interpreted as entitling that person to a pension of a particular amount ( see Müller v. Austria, no. 5849/72, Commission ’ s report of 1 October 19 75, Decisions and Reports 3, p. 25, and Skorkiewicz, cited above ). An important consideration in the assessment under this provision is whether the applicant ’ s right to derive benefits from the social insurance scheme in question has been infringed in a manner resulting in the impairment of the essence of his pension rights ( see Domalewski v. Poland ( dec. ), no. 34610/97, ECHR 1999-V ).", "40. In the instant case, the applicant had contributed to the Pension Fund from 1969 to 1981 under a system according to which he did not acquire any claim to an identifiable share in the Fund but only what could be characterised as a right to receive a pension subject to the fulfilment of certain conditions. It has not been contended that the measure amounted to a deprivation or a means of controlling the use of property. However, the parties agree that the termination of the applicant ’ s disability pension amounted to an interference with his right to the peaceful enjoyment of his possessions for the purposes of the first sentence of the first paragraph of Article 1 of Protocol No. 1. The Court sees no reason to hold otherwise.", "However, the Government disputed the applicant ’ s contention that the application of the new disability criteria to him was unlawful, discriminatory and disproportionate to the community interests pursued. As regards the issue of lawfulness, the Court notes that the applicant ’ s argument was rejected by the Icelandic Supreme Court and sees no need to consider that aspect of the matter any further. It is the issue of proportionality which lies at the heart of the case under the Convention.", "Accordingly, it will determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights. In this connection, regard will be had to whether unjustified differential treatment occurred in the instant case.", "Whereas the Government viewed the case from a broad angle as raising issues of fundamental principles pertaining to the entire Icelandic pension system, the Court will confine its examination to the concrete circumstances of the applicant ’ s case.", "41. At the outset the Court takes note of the Government ’ s argument, based on information provided by the Pension Fund on 14 July 2003, that even if no amendment had been made to the Seamen ’ s Pension Fund Act 1974, the applicant had in all likelihood already become ineligible for a pension before 1 July 1997 by virtue of the last sentence of section 13(1) of that Act and thus did not have any legal ground for expecting to receive a full disability pension until the age of 65. The argument was not reviewed by the national courts, but was apparently developed for the first time at the merits stage of the proceedings under the Convention and was rejected by the applicant. The Court is not convinced by these submissions, which are based on facts that are both uncertain and unclear, and will not attach any weight to them in its examination of the case. In any event, whether the applicant, as argued by the Government, could have forfeited his entitlement to a disability pension under a different legal ground is a matter that falls outside the scope of the case, which concerns the effects of the legislative amendments that came into force on 1 July 1997.", "42. Although the national authorities ’ decision to discontinue payment of the applicant ’ s disability pension was taken without reference to his income from his office job, the Court will have regard to this income in its examination of the question of proportionality under Article 1 of Protocol No. 1.", "In that connection, the Court notes that the introduction of the new pension rules had been prompted by legitimate concerns about the need to resolve the Fund ’ s financial difficulties.", "Furthermore, the changes made to disability entitlements were based on objective criteria, namely, an obligatory renewed medical assessment of each disability pensioner ’ s ability to carry out not just the same work he had performed before his or her disability but work in general ( see Bucheň v. the Czech Republic, no. 36541/97, § 75, 26 November 2002 ), the standard that already applied in other sectors in Iceland. According to the Government ’ s submission, the new rules on disability assessment were intended to ensure that a considerable number of former seamen did not receive disability pensions from the Fund despite being in full employment on shore. The applicant fell within that group of disability pension recipients. One hundred and four – over 30% – of the 336 persons who were in receipt of a disability pension on 1 July 1997 experienced a substantial reduction in their entitlements. Sixty of these experienced a reduction ranging from 50 % to 100 %.", "The Court is also mindful of the Government ’ s submission that, concurrently with those changes, the Pension Fund ’ s old- age pensions had also been considerably reduced by virtue of the 1994 Act.", "43. However, the Court is struck by the fact that the applicant belonged to a small group of 54 disability pensioners (some 15% of the 336 persons mentioned above) whose pensions, unlike those of any other group, were discontinued altogether on 1 July 1997. The above-mentioned legitimate concerns about the need to resolve the Fund ’ s financial difficulties seem hard to reconcile with the fact that after 1 July 1997 the vast majority of the 689 disability pensioners continued to receive disability benefits at the same level as before the adoption of the new rules, whereas only a small minority of disability pensioners had to bear the most drastic measure of all, namely the total loss of their pension entitlements. In the Court ’ s view, although changes made to pension entitlements may legitimately take into account the pension holders ’ needs, the above differential treatment in itself suggests that the impugned measure was unjustified for the purposes of Article 14 of the Convention, which consideration must carry great weight in the assessment of the proportionality issue under Article 1 of Protocol No. 1.", "44. The discriminatory character of the interference was compounded by the fact that it affected the applicant in a particularly concrete and harsh manner in that it totally deprived him of the disability pension he had been receiving on a regular basis for nearly twenty years. He had joined the Fund in 1969 and had contributed to it for nearly ten years when he had his accident, which left him 100 % unfit for work as a seaman. Under section 13 of the Seamen ’ s Pension Fund Act 1974, disability was to be assessed mainly on the basis of incapacity to perform the job occupied, and to which Fund membership related, at the time of the injury. According to the Icelandic Supreme Court, there was an unequivocal right to have disability so assessed. In the Court ’ s view, the applicant could validly plead an individual legitimate expectation that his disability would continue to be assessed on the basis of his incapacity to perform his previous job.", "Regard should be had to the fact that, under the former rules, gainful employment was not incompatible with a Fund member ’ s receipt of a full disability pension, provided that that pension did not exceed the member ’ s loss of income. Understandably, after becoming unfit for work as a seaman, and encouraged by the pension system to which he had contributed over a number of years, the applicant, like many other disability pensioners, had pursued alternative employment whilst at the same time receiving a disability pension.", "It is significant that, when the applicant lost his pension on 1 July 1997, this was not due to any circumstance of his own but to changes in the law altering the criteria for disability assessment. Although he was still considered 25% incapacitated to perform work in general, the applicant was deprived of the entirety of his disability pension entitlements, which at the time constituted no less than one - third of his gross monthly income, as can be deduced from the figures submitted to the Court.", "45. Against this background, the Court finds that, as an individual, the applicant was made to bear an excessive and disproportionate burden which, even having regard to the wide margin of appreciation to be enjoyed by the State in the area of social legislation, cannot be justified by the legitimate community interests relied on by the authorities. It would have been otherwise had the applicant been obliged to endure a reasonable and commensurate reduction rather than the total deprivation of his entitlements (see Müller and Skorkiewicz, both cited above, and, mutatis mutandis, James and Others, cited above, p. 36, § 54, and Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, pp. 44-45, § 121 ).", "Accordingly there has been a violation of Article 1 of Protocol No. 1 in the applicant ’ s case.", "B. Alleged violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1", "46. The applicant further alleged a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1, relying essentially on the considerations underlying his complaint under the latter provision taken on its own.", "47. The Court, having already taken those arguments into account in its examination of the complaint under Article 1 of Protocol No. 1, finds that no separate issue arises under Article 14 of the Convention and that, accordingly, it is unnecessary to examine the matter under these provisions taken together.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "48. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "1. Pecuniary damage", "49. The applicant sought compensation for the pecuniary damage he had suffered as a result of the termination of his disability pension on 1 July 1997. He claimed sums totalling 39,524,772 Icelandic krónur (ISK) ( currently corresponding to approximately 450,000 euros (EUR) ), broken down as follows :", "(a ) ISK 12,637,600 (approximately EUR 143,000) for the loss of his disability pension entitlements, of which", "(i) ISK 9,373,300 were for the loss of his own pension (ISK 61,356 per month until the age of 65), and", "( ii ) ISK 3,264,300 were for the loss of child benefits in respect of his three children ( see paragraph 17 above);", "( b ) default interest in respect of the above from 1 July 1997 until the date of payment, which on 26 November 2003 amounted to ISK 26,887,172 (approximately EUR 305,000).", "50. The Government disputed the above claim, arguing that, irrespective of the legislative changes that had taken effect on 1 July 1997, the applicant ’ s disability pension entitlements ought to have been discontinued before that date anyway, because of his income from his office job (last sentence of section 13(1) of the Seamen ’ s Pension Fund Act 1974).", "51. The Court is satisfied that the applicant has suffered pecuniary damage as a result of the violation found and considers that he should be awarded compensation in an amount reasonably related to any prejudice suffered. It cannot award him the full amount claimed, precisely because a reasonable and commensurate reduction in his entitlement would have been compatible with his Convention rights (see paragraph 4 5 above). Deciding in the light of the figures supplied by the applicant and equitable considerations, the Court therefore awards him EUR 6 0,000 in respect of item (a) above and EUR 15 ,000 for item (b), plus any tax that may be chargeable on those amounts.", "2. Non-pecuniary damage", "52. The applicant further asked the Court to award him ISK 3,000,000 (currently corresponding to approximately EUR 34,000) in compensation for non-pecuniary damage on account of the suffering and distress caused by the discriminatory deprivation of his disability pension entitlements and the financial insecurity in which he had been left.", "53. The Government asked the Court to reject any claim for non-pecuniary damage.", "54. The Court considers that the applicant must have suffered anxiety and distress as a result of the violation that cannot be compensated solely by the Court ’ s finding in his case and awards him EUR 1,500 under this head.", "B. Costs and expenses", "55. The applicant requested the reimbursement of legal fees and expenses incurred during the period from 15 January 1997 to 25 November 2003, totalling ISK 3, 610,392 (currently corresponding to approximately EUR 41, 0 00), broken down as follows :", "(a ) ISK 2, 837, 100 for his lawyer ’ s work ( 111. 25 hours before the District Court, 67 hours before the Supreme Court and 111. 25 hours before the European Court, at ISK 9,800 per hour);", "(b) ISK 6 95,090 in value-added tax (VAT) in respect of the above;", "(c) ISK 78,202 in miscellaneous expenses.", "56. The Government did not dispute the above claim.", "57. The Court is not convinced that all the costs were necessarily incurred. Deciding on an equitable basis, it awards the applicant EUR 20 ,000 (inclusive of VAT).", "C. Default interest", "58. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant was born in 1959 and lives in Baktalórántháza.", "10. Between 1 May 1975 and 14 July 1997 the applicant was employed and made the statutory contributions to the social-security scheme. Subsequently, she was in receipt of unemployment benefit from 15 September 1997 until 9 September 1998.", "11. In response to a request lodged on 16 October 2001, the applicant was granted a disability pension ( rokkantsági nyugdíj ) later that same year on the basis of a retrospective finding that she had lost, as of 1 April 2001, 67% of her capacity to work on account of various ailments. This assessment was maintained in 2003, 2006 and 2007.", "12. As of 2008 the legislation on the methodology used to assess health impairment in occupational contexts changed. In application of the new methodology, the applicant’s disability was assessed by an expert at 40% on 1 December 2009. Without envisaging any procedure for rehabilitation, the assessment panel scheduled the next check-up of her medical status for 2012.", "13. The Government submitted that, under the new methodology, the applicant’s previous condition of 67% loss of working capacity would have corresponded to 54% overall health impairment. Since, however, she was found to have only 40% health impairment, her condition had to be deemed to have improved in the intervening period.", "The applicant submitted that the connection suggested by the Government between the scores of 67% in the old system and 54% in the new system was not based on any legal text. In her submission, her condition had not improved at all; the difference in scores was solely a consequence of changing the methodology used.", "14. As a consequence of the applicant’s newly assessed 40% level of disability, on 1 February 2010 the relevant pension insurance directorate withdrew her entitlement to the disability pension. The applicant appealed against that decision. On an unspecified date, the decision was upheld by the second-instance pension insurance authority.", "At the relevant time the monthly amount of the applicant’s disability pension was 60,975 Hungarian forints (HUF), approximately 200 euros (EUR).", "On 25 March 2010 the applicant brought an action before the Nyíregyháza Labour Court, challenging the administrative decision.", "15. The Nyíregyháza Labour Court heard the case, and appointed an expert with a view to obtaining an opinion as to the reasons for the difference in the scores. In an opinion of 16 February 2011, the expert submitted that the old score of 67%, as well as the new one of 40%, were correct under the respective methodologies; at any rate, the applicant’s condition had not significantly improved since 2007.", "16. Observing that the applicant had accumulated 23 years and 71 days of service time, the court retained the disability score of 40% and dismissed her action on 1 April 2011. The applicant was ordered to reimburse the amounts received after 1 February 2010. The court noted that the applicant’s next medical assessment was due in 2012. It drew her attention to the possibility of making a renewed application for disability pension should her health deteriorate.", "17. In 2011 the applicant requested another assessment of her disability. On 5 September 2011 the first-instance authority assessed it at 45%, scheduling the next assessment for September 2014. The second-instance authority changed this score to 50% on 13 December 2011, with a reassessment due in March 2015. Such a level would have entitled her to disability pension had rehabilitation not been possible. However, this time the assessment panel envisaged the applicant’s complex rehabilitation within a 36-month time-frame, and recommended that she be entitled to rehabilitation allowance ( rehabilitációs járadék ). Nevertheless, no such rehabilitation took place, and the applicant did not receive rehabilitation allowance.", "18. As of 1 January 2012, a new law on disability and related benefits (Act no. CXCI of 2011) entered into force. It introduced additional eligibility criteria. In particular, instead of fulfilling a service period as required by the former legislation, the persons concerned had to have at least 1,095 days covered by social security in the five years preceding the submission of their requests. Individuals who did not meet this requirement could nevertheless qualify if they had no interruption of social cover exceeding 30 days throughout their careers, or if they were in receipt of a disability pension or rehabilitation allowance on 31 December 2011.", "19. On 20 February 2012 the applicant submitted another request for disability allowance ( rokkantsági ellátás ). Her condition was assessed in April 2012, leading to the finding of 50% disability. On 5 June 2012 her request was dismissed because she did not have the requisite period of social cover. Rehabilitation was not envisaged. The next assessment was scheduled for April 2014.", "20. Between 1 July and 7 August 2012 the applicant was employed by the Mayor’s Office in Baktalórántháza.", "21. On 15 August 2012 the applicant submitted a fresh request for disability pension under the new law. She underwent another assessment, during which her degree of disability was again established at 50%. Rehabilitation was not envisaged.", "22. In principle, such a level of disability would have entitled the applicant to a disability allowance under the new system. However, since her disability pension had been terminated in February 2010 (that is, she was not in receipt of a disability pension or a rehabilitation allowance on 31 December 2011) and, moreover, she had not accumulated the requisite number of days of social-security cover or demonstrated uninterrupted social cover, she was not eligible, under any title, for a disability allowance under the new system. Instead of the requisite 1,095 days covered by social security in the five preceding years, the applicant had been covered for 947 days. According to the Government, had the law not been so amended, the applicant would again have become eligible for a disability pension, since her health impairment was again assessed as exceeding the relevant threshold in 2012.", "23. The applicant’s request was refused by the relevant authority of Szabolcs-Szatmár-Bereg County on 23 November 2012 and, on appeal, by the National Rehabilitation and Social Welfare Authority on 27 February 2013. On 27 March 2013 the applicant filed an action with the Nyíregyháza Administrative and Labour Court, challenging these administrative decisions. On 20 June 2013 the court dismissed her case. This judgment was not subject to appeal.", "24. From 1 January 2014 the impugned legislative criteria were amended with a view to extending eligibility to those who have accumulated either 2,555 days of social-security cover over ten years or 3,650 days over fifteen years. However, the applicant does not meet these criteria either.", "25. In 2011 and 2012 the applicant received a monthly housing allowance from the local municipality, in the amount of HUF 4,100 (EUR 14) in 2011 and HUF 5,400 (EUR 18) in 2012. The applicant also applied for the basic welfare allowance ( rendszeres szociális segély ), but her request was denied because she did not meet the statutory requirements." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "26. Act no. XX of 1949 on the Constitution, as in force at the relevant time and until 31 December 2011, contained the following provisions:", "Article 17", "“The Republic of Hungary shall provide support for those in need through a wide range of social measures.”", "Article 54 (1)", "“In the Republic of Hungary everyone has the inherent right to life and to human dignity. No one shall be arbitrarily stripped of these rights.”", "Article 70/E", "“(1) Citizens of the Republic of Hungary have the right to social security; they are entitled to the support required to live in old age, and in cases of sickness, disability, or being widowed or orphaned, and in the case of unemployment through no fault of their own.", "(2) The Republic of Hungary shall implement the right to social support through the social-security system and the system of social institutions.", "(3) [1] The right to social support in respect of pension benefits applies to persons who have reached the statutory retirement age for old-age pension. Pension benefits may also be granted to persons below the aforementioned age by way of an act. Pension benefits provided before the statutory retirement age for an old-age pension may be reduced on the basis of statute, and may subsequently be provided in the form of social-welfare benefits, or may be terminated if the beneficiary is able to work.”", "27. Article XIX of the Fundamental Law, as in force since 1 January 2012, provides:", "“(1) Hungary shall strive to provide social security to all of its citizens. Every Hungarian citizen shall be entitled to assistance in case of maternity, illness, disability, handicap, widowhood, orphanage and unemployment for reasons outside of his or her control, as provided for by statute.", "(2) Hungary shall implement social security for the persons referred to in paragraph (1) and for other persons in need through a system of social institutions and measures.", "(3) The nature and extent of social measures may as well be determined, in statute, in accordance with the usefulness to the community of the beneficiary’s activity.", "(4) Hungary shall facilitate the ensuring of the livelihood of the elderly by maintaining a general state pension system based on social solidarity and by allowing for the operation of voluntarily established social institutions. The conditions of entitlement to state pension may as well be laid down in statute with regard to the requirement of stronger protection for women.”", "28. The relevant provisions of Act no. LXXXI of 1997 on Social-Security Pensions [2], as in force until 31 December 2011, stated:", "Section 4 (1) (c)", "“[Under the terms of this law], disability pension [means]: pension to be disbursed in the event of disability, on condition that the requisite length of service has been accumulated.”", "Section 6", "“(1) The pensions that may be granted within the framework of the social-security pension system to the insured person in his or her own right are as follows:", "(a) the old-age pension,", "(b) the disability pension,", "...", "(d) the rehabilitation allowance, to be granted under a separate statute [3] .”", "Section 23 (1)", "“Disability pension shall be due to a person who:", "(a) has suffered 67% loss of capacity to work due to health problems, physical or mental impairments, without any perspective of improvement over the coming year...; [and]", "(b) has accumulated the necessary length of service [a function of age, as outlined in the law]; [and]", "(c) does not work regularly or earns considerably less than he or she did prior to become disabled.”", "Section 24 (1)", "“The length of service necessary for the disability pension is as follows: ...", "at the age of 35 to 44 years: 10 years ...”", "Section 26", "“(1) The right to disability pension shall be effective as of the date on which the disability was found to be present, based on the opinion of the medical commission. If the medical commission did not take a stance about the point at which the disability began, the date to be taken in account shall be the date on which the disability pension was requested.", "(2) If the claimant had not accumulated the necessary service period by the time set out in paragraph (1) above, eligibility for a disability pension shall be effective as of the day following the accumulation of the necessary length of service.”", "Section 29", "“(1) The amount of disability pension is dependent on the person’s age when he or she becomes disabled, the length of service accumulated prior to the granting of the disability pension and the degree of disability.”", "29. Concerning disability pensions to be granted after 31 December 2007, the same Act, as in force between 12 March and 31 December 2011, provided as follows:", "Section 36/A", "“(1) Disability pension shall be due to a person who:", "(a) has suffered [at least 79% loss of capacity to work, or between 50 and 79% loss of capacity if rehabilitation is not feasible], and", "(b) accumulated the requisite length of service in respect of his or her age, and", "(c) [does not have an income or earns considerably less than before], and", "(d) does not receive sick pay or disability sick pay.”", "30. Act no. LXXXIV of 2007 on the Rehabilitation Allowance, as in force until 31 December 2011, provided as follows:", "Section 3", "“(1) The rehabilitation allowance shall be due to a ... person:", "(a) who has suffered an impairment of health at a rate of 50 to 79 per cent and, in the context of that impairment... cannot ... continue to be employed without rehabilitation, and", "(aa) who is not engaged in any gainful activity; or", "(ab) whose monthly income is at least 30 per cent lower than [before] the impairment of health; [and] moreover", "(b) whose condition is amenable to rehabilitation;, and", "(c) who has accumulated the requisite service time in function of his or her age.”", "31. Act no. CXCI of 2011 on the Benefits Granted to Persons with Reduced Work Capacity, in so far as relevant and as in force between 26 July 2012 and 31 December 2013, provided as follows:", "Section 2", "“A person whose health status has been found to be 60% or less following a complex assessment by the rehabilitation authority (henceforth: persons with reduced work capacity) and who:", "(a) has been covered by social security for a minimum of 1,095 days under section 5 of [the Social Security Act] in the five years preceding the submission of his or her request, and", "(b) is not engaged in any gainful activities and", "(c) is not receiving any regular financial allowance", "shall be eligible for benefits granted to persons with reduced work capacity.", "(2) By derogation from subsection (1) (a), persons", "...", "(b) who were in receipt of a disability pension ... or a rehabilitation allowance ... on 31 December 2011", "shall be eligible for the benefits granted to persons with reduced work capacity irrespective of the duration of the period covered by social security.", "(3) The 1,095-day insurance period shall include:", "...", "(b) periods of disbursement of a disability pension ..., or rehabilitation allowance...; ....”", "Section 3", "“(1) Subject to any rehabilitation proposal made by the rehabilitation authority in the framework of the complex reassessment, the allowance to be granted for a person with reduced work capacity shall be either:", "(a) rehabilitation benefit, or", "(b) disability benefit.”", "Section 4", "“Persons with reduced work capacity who can be rehabilitated shall be entitled to rehabilitation benefit.”", "Section 5", "“(1) Persons with reduced work capacity shall be entitled to disability benefit if rehabilitation is not recommended.”", "32. The Constitutional Court’s decision no. 1228/B/2010.AB of 7 June 2011 contains a sentence stating that “section 36/D (1) b) of the Social Security Pension Act had not created a [legitimate] expectation for those entitled to disability pension under the previous regulations” (compare and contrast with the wording of point 34 of the Constitutional Court decision quoted in the next paragraph).", "33. The Constitutional Court examined Act no. CXCI of 2011 in decision no. 40/2012. (XII.6.) AB, of 4 December 2012. The decision contains, inter alia, the following passages:", "“27. ... From Articles 54 § 1 and 70/E of the Constitution, the Constitutional Court deduced only one individual social entitlement, specifically the right to a benefit that would ensure subsistence, that is, the provision by the State of basic subsistence to the extent that it is indispensable to secure the right to human dignity... [A subsequent decision of the Constitutional Court] amended the above principle with the proviso that ‘specific constitutional rights, such as a right to a dwelling, cannot be inferred from the obligation to provide basic subsistence’]...", "30. ...The Constitutional Court has already examined the amendments to the rules governing disability pension in several decisions. Decision no. 321/B/1996.AB characterised the disability pension partly as an allowance under protection of property and partly as a social service provision. As stated in the decision, the law ‘provides for a benefit under the constitutional principle of social security for individuals who, before reaching the old-age pension age, have lost their ability to work by reason of disability or as the result of an accident... Prior to the retirement age, the disability pension is an exceptional benefit granted to individuals on the ground of their disability. Upon reaching pensionable age, individuals who are ... incapable of work ... are no longer entitled to this exceptional benefit, because once their employment [period has] terminated they are eligible to receive old-age pension on the basis of their age.’...", "31. Decision no. 1129/B/2008.AB states that disability pension is one type of personal retirement benefit; however its ‘purchased right’ element is only represented inasmuch as ‘its sum is greater after a longer length of service, or is equal or close to the old-age pension. Otherwise, the principle of solidarity is predominant, since the disabled individual, who would not be eligible for an old-age pension on the basis of either his age or the length of service, receives a pension once his disability is determined.’ ...", "32. In the Constitutional Court’s interpretation, the entitlement to disability pension is not guaranteed constitutionally in an as-of-right manner; rather, it is a mixed social-security and social-service benefit, available under certain conditions to individuals below retirement age suffering from ill health, who, due to their disability, have a reduced capacity to work and are in need of financial assistance because of the loss of income.”", "...", "34. ... [In decision no. 1228/B/2010.AB] ... the Constitutional Court held that the earlier rules on disability pension had not created a [legitimate] expectation, therefore the amendment to the conditions of entitlement had not violated any acquired right.", "35. Subsequent to the adoption of the above-mentioned decisions of the Constitutional Court, the text of the Constitution changed significantly.", "...", "37. ... The fact that Article XIX of the Fundamental Law on social security concerns essentially State obligations and State objectives, rather than conferring rights [on individuals], represents an important change...", "38. The intention to change social policies became even more explicit by virtue of [an amendment to] Article 70/E ... of the Constitution, enacted on 6 June 2011, which expressly entitled the legislature to reduce, transform into a social allowance or terminate (where there is an ability to work) such pensions as disbursed [to persons in an age] under the age-limit for the old-age pension...", "40. ... From 1 January 2012 onwards, [the law] provides those with altered working capacity with a health-insurance benefit, rather than with a pension...”", "III. RELEVANT INTERNATIONAL LAW AND OTHER MATERIAL", "34. The European Social Charter provides, as relevant:", "Article 12 – The right to social security", "“With a view to ensuring the effective exercise of the right to social security, the Contracting Parties undertake:", "1. to establish or maintain a system of social security;", "2. to maintain the social- security system at a satisfactory level at least equal to that required for ratification of International Labour Convention No. 102 Concerning Minimum Standards of Social Security;", "3. to endeavour to raise progressively the system of social security to a higher level;", "4. to take steps, by the conclusion of appropriate bilateral and multilateral agreements, or by other means, and subject to the conditions laid down in such agreements, in order to ensure:", "a. equal treatment with their own nationals of the nationals of other Contracting Parties in respect of social security rights, including the retention of benefits arising out of social security legislation, whatever movements the persons protected may undertake between the territories of the Contracting Parties;", "b. the granting, maintenance and resumption of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Contracting Parties.”", "Article 15 – The right of physically or mentally disabled persons to vocational training, rehabilitation and social resettlement", "“With a view to ensuring the effective exercise of the right of the physically or mentally disabled to vocational training, rehabilitation and resettlement, the Contracting Parties undertake:", "1. to take adequate measures for the provision of training facilities, including, where necessary, specialised institutions, public or private;", "2. to take adequate measures for the placing of disabled persons in employment, such as specialised placing services, facilities for sheltered employment and measures to encourage employers to admit disabled persons to employment.”", "35. The European Social Charter (revised) provides, as relevant:", "Article 12 – The right to social security", "“With a view to ensuring the effective exercise of the right to social security, the Parties undertake:", "1. to establish or maintain a system of social security;", "2. to maintain the social security system at a satisfactory level at least equal to that required for the ratification of the European Code of Social Security;", "3. to endeavour to raise progressively the system of social security to a higher level;", "4. to take steps, by the conclusion of appropriate bilateral and multilateral agreements or by other means, and subject to the conditions laid down in such agreements, in order to ensure:", "a. equal treatment with their own nationals of the nationals of other Parties in respect of social security rights, including the retention of benefits arising out of social security legislation, whatever movements the persons protected may undertake between the territories of the Parties;", "b. the granting, maintenance and resumption of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Parties.”", "Article 15 – The right of persons with disabilities to independence, social integration and participation in the life of the community", "“With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular:", "1. to take the necessary measures to provide persons with disabilities with guidance, education and vocational training in the framework of general schemes wherever possible or, where this is not possible, through specialised bodies, public or private;", "2. to promote their access to employment through all measures tending to encourage employers to hire and keep in employment persons with disabilities in the ordinary working environment and to adjust the working conditions to the needs of the disabled or, where this is not possible by reason of the disability, by arranging for or creating sheltered employment according to the level of disability. In certain cases, such measures may require recourse to specialised placement and support services;", "3. to promote their full social integration and participation in the life of the community in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure.”", "36. Hungary has ratified both the European Social Charter and the Revised European Social Charter, on 7 August 1999 and 20 April 2009 respectively. At the time of depositing the instrument of ratification, Hungary made a declaration enumerating the provisions of the European Social Charter by which it considered itself bound. That list contained neither Article 12 nor Article 15. Subsequently, in 2004, Hungary declared itself bound by paragraph 1 of Article 12 and by Article 15. According to the declaration deposited with the instrument of ratification of the Revised European Social Charter, Hungary continues to consider itself bound, among other provisions, by paragraph 1 of Article 12 and by Article 15.", "37. The European Committee of Social Rights has “explicitly accepted alterations to social security systems in as far as such changes are necessary in order to ensure the maintenance of the social security system ... and where any restrictions do not deprive individuals of effective protection against social and [economic] risks without a tendency to gradually reduce the social security system to one of minimum assistance” (see Conclusions XIV-1, concerning Finland and Article 12 § 3 of the European Social Charter, p. 232, 30 March 1998).", "38. The European Code of Social Security, which entered into force on 17 March 1968 and is referred to in paragraph 2 of Article 12 of the Revised European Social Charter, has been ratified by 21 Member States of the Council of Europe, not including Hungary. Sixteen of them accepted the obligations contained in Part IX thereof, which provides as follows:", "Part IX – Invalidity benefit", "Article 53", "“Each Contracting Party for which this part of the Code is in force shall secure to the persons protected the provision of invalidity benefit in accordance with the following articles of this part.”", "Article 54", "“The contingency covered shall include inability to engage in any gainful activity, to an extent prescribed, which inability is likely to be permanent or persists after the exhaustion of sickness benefit.”", "Article 55", "“The persons protected shall comprise:", "a. prescribed classes of employees, constituting not less than 50 per cent of all employees; or", "b. prescribed classes of the economically active population, constituting not less than 20 per cent of all residents; or", "c. all residents whose means during the contingency do not exceed limits prescribed in such a way as to comply with the requirements of Article 67.”", "Article 56", "“The benefit shall be a periodical payment calculated as follows:", "a. where classes of employees or classes of the economically active population are protected, in such a manner as to comply either with the requirements of Article 65 or with the requirements of Article 66;", "b. where all residents whose means during the contingency do not exceed prescribed limits are protected, in such a manner as to comply with the requirements of Article 67.”", "Article 57", "“1. The benefit specified in Article 56 shall, in a contingency covered, be secured at least:", "a. to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period which may be 15 years of contribution or employment, or 10 years of residence; or", "b. where, in principle, all economically active persons are protected, to a person protected who has completed a qualifying period of three years of contribution and in respect of whom, while he was of working age, the prescribed yearly average number of contributions has been paid.", "2. Where the benefit referred to in paragraph 1 of this article is conditional upon a minimum period of contribution or employment, a reduced benefit shall be secured at least:", "a. to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period of five years of contribution or employment; or", "b. where, in principle, all economically active persons are protected, to a person protected who has completed a qualifying period of three years of contribution and in respect of whom, while he was of working age, half the yearly average number of contributions prescribed in accordance with paragraph 1.b of this article has been paid.", "3. The requirements of paragraph 1 of this article shall be deemed to be satisfied where a benefit calculated in conformity with the requirements of Part XI but at a percentage of ten points lower than shown in the Schedule appended to that part for the standard beneficiary concerned is secured at least to a person protected who has completed, in accordance with prescribed rules, five years of contribution, employment or residence.", "4. A proportional reduction of the percentage indicated in the Schedule appended to Part XI may be effected where the qualifying period for the pension corresponding to the reduced percentage exceeds five years of contribution or employment but is less than 15 years of contribution or employment; a reduced benefit shall be payable in conformity with paragraph 2 of this article.”", "Article 58", "“The benefit specified in Articles 56 and 57 shall be granted throughout the contingency or until an old-age benefit becomes payable.”", "39. The United Nations Convention on the Rights of Persons with Disabilities (promulgated in Hungary by Act no. XCII of 2007) contains the following provisions:", "Article 28 Adequate standard of living and social protection", "“1. States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.", "2. States Parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right, including measures:", "...", "(c) To ensure access by persons with disabilities and their families living in situations of poverty to assistance from the State with disability-related expenses, including adequate training, counselling, financial assistance and respite care;", "...", "(e) To ensure equal access by persons with disabilities to retirement benefits and programmes.”", "40. Convention no. 102 of the International Labour Organisation (ILO) on Social Security (Minimum Standards), referred to in paragraph 2 of Article 12 of the European Social Charter, entered into force on 27 April 1955 and has so far been ratified by fifty-four countries, not including Hungary. Fifteen member States of the Council of Europe have ratified Part IX of this instrument, which reads as follows:", "Part IX – Invalidity benefit", "Article 53", "“Each Member for which this Part of this Convention is in force shall secure to the persons protected the provision of invalidity benefit in accordance with the following Articles of this Part.”", "Article 54", "“The contingency covered shall include inability to engage in any gainful activity, to an extent prescribed, which inability is likely to be permanent or persists after the exhaustion of sickness benefit.”", "Article 55", "“The persons protected shall comprise--", "(a) prescribed classes of employees, constituting not less than 50 per cent of all employees; or", "(b) prescribed classes of the economically active population, constituting not less than 20 per cent of all residents; or", "(c) all residents whose means during the contingency do not exceed limits prescribed in such a manner as to comply with the requirements of Article 67; or", "(d) where a declaration made in virtue of Article 3 is in force, prescribed classes of employees, constituting not less than 50 per cent of all employees in industrial workplaces employing 20 persons or more.”", "Article 56", "“The benefit shall be a periodical payment calculated as follows:", "(a) where classes of employees or classes of the economically active population are protected, in such a manner as to comply either with the requirements of Article 65 or with the requirements of Article 66;", "(b) where all residents whose means during the contingency do not exceed prescribed limits are protected, in such a manner as to comply with the requirements of Article 67.”", "Article 57", "“1. The benefit specified in Article 56 shall, in a contingency covered, be secured at least--", "(a) to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period which may be 15 years of contribution or employment, or 10 years of residence; or", "(b) where, in principle, all economically active persons are protected, to a person protected who has completed a qualifying period of three years of contribution and in respect of whom, while he was of working age, the prescribed yearly average number of contributions has been paid.", "2. Where the benefit referred to in paragraph 1 is conditional upon a minimum period of contribution or employment, a reduced benefit shall be secured at least--", "(a) to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period of five years of contribution or employment; or", "(b) where, in principle, all economically active persons are protected, to a person protected who has completed a qualifying period of three years of contribution and in respect of whom, while he was of working age, half the yearly average number of contributions prescribed in accordance with subparagraph (b) of paragraph 1 of this Article has been paid.", "3. The requirements of paragraph 1 of this Article shall be deemed to be satisfied where a benefit calculated in conformity with the requirements of Part XI but at a percentage of ten points lower than shown in the Schedule appended to that Part for the standard beneficiary concerned is secured at least to a person protected who has completed, in accordance with prescribed rules, five years of contribution, employment or residence.", "4. A proportional reduction of the percentage indicated in the Schedule appended to Part XI may be effected where the qualifying period for the pension corresponding to the reduced percentage exceeds five years of contribution or employment but is less than 15 years of contribution or employment; a reduced pension shall be payable in conformity with paragraph 2 of this Article.”", "Article 58", "“The benefit specified in Articles 56 and 57 shall be granted throughout the contingency or until an old-age benefit becomes payable.”", "41. Convention no. 128 of the ILO on Invalidity, Old-Age and Survivors’ Benefits entered into force on 1 November 1969 and has so far been ratified by sixteen countries, not including Hungary, of which ten are member States of the Council of Europe. Of the latter, six have accepted the obligations contained in Part II of the Convention, which provides as follows:", "Part II – Invalidity benefit", "Article 7", "“Each Member for which this Part of this Convention is in force shall secure to the persons protected the provision of invalidity benefit in accordance with the following Articles of this Part.”", "Article 8", "“The contingency covered shall include incapacity to engage in any gainful activity, to an extent prescribed, which incapacity is likely to be permanent or persists after the termination of a prescribed period of temporary or initial incapacity.”", "Article 9", "“1. The persons protected shall comprise--", "(a) all employees, including apprentices; or", "(b) prescribed classes of the economically active population, constituting not less than 75 per cent. of the whole economically active population; or", "(c) all residents, or residents whose means during the contingency do not exceed limits prescribed in such a manner as to comply with the requirements of Article 28.", "2. Where a declaration made in virtue of Article 4 is in force, the persons protected shall comprise--", "(a) prescribed classes of employees, constituting not less than 25 per cent. of all employees;", "(b) prescribed classes of employees in industrial undertakings, constituting not less than 50 per cent of all employees in industrial undertakings.”", "Article 10", "“The invalidity benefit shall be a periodical payment calculated as follows:", "(a) where employees or classes of the economically active population are protected, in such a manner as to comply either with the requirements of Article 26 or with the requirements of Article 27;", "(b) where all residents or all residents whose means during the contingency do not exceed prescribed limits are protected, in such a manner as to comply with the requirements of Article 28.”", "Article 11", "“1. The benefit specified in Article 10 shall, in a contingency covered, be secured at least--", "(a) to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period which may be 15 years of contribution or employment, or ten years of residence; or", "(b) where, in principle, all economically active persons are protected, to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period of three years of contribution and in respect of whom, while he was of working age, the prescribed yearly average number or yearly number of contributions has been paid.", "2. Where the invalidity benefit is conditional upon a minimum period of contribution, employment or residence, a reduced benefit shall be secured at least--", "(a) to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period of five years of contribution, employment or residence; or", "(b) where, in principle, all economically active persons are protected, to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period of three years of contribution and in respect of whom, while he was of working age, half of the yearly average number or of the yearly number of contributions prescribed in accordance with subparagraph (b) of paragraph 1 of this Article has been paid.", "3. The requirements of paragraph 1 of this Article shall be deemed to be satisfied where a benefit calculated in conformity with the requirements of Part V but at a percentage of ten points lower than shown in the Schedule appended to that Part for the standard beneficiary concerned is secured at least to a person protected who has completed, in accordance with prescribed rules, five years of contribution, employment or residence.", "4. A proportional reduction of the percentage indicated in the Schedule appended to Part V may be effected where the qualifying period for the benefit corresponding to the reduced percentage exceeds five years of contribution, employment or residence but is less than 15 years of contribution or employment or ten years of residence; a reduced benefit shall be payable in conformity with paragraph 2 of this Article.", "5. The requirements of paragraphs 1 and 2 of this Article shall be deemed to be satisfied where a benefit calculated in conformity with the requirements of Part V is secured at least to a person protected who has completed, in accordance with prescribed rules, a qualifying period of contribution or employment which shall not be more than five years at a prescribed minimum age and may rise with advancing age to not more than a prescribed maximum number of years.”", "Article 12", "“The benefit specified in Articles 10 and 11 shall be granted throughout the contingency or until an old-age benefit becomes payable.”", "Article 13", "“1. Each Member for which this Part of this Convention is in force shall, under prescribed conditions--", "(a) provide rehabilitation services which are designed to prepare a disabled person wherever possible for the resumption of his previous activity, or, if this is not possible, the most suitable alternative gainful activity, having regard to his aptitudes and capacity; and", "(b) take measures to further the placement of disabled persons in suitable employment.", "2. Where a declaration made in virtue of Article 4 is in force, the Member may derogate from the provisions of paragraph 1 of this Article.”", "42. The European Code of Social Security, ILO Convention no. 102 and ILO Convention no. 128 contain virtually identical provisions whereby, in situations where eligibility for invalidity benefit is conditional upon a minimum period of contribution or employment, a reduced invalidity benefit should at least be secured to persons who have completed a period of five years of contributions prior to the contingency (see Article 57 § 2 (a) of the European Code of Social Security and ILO Convention no. 102, as well as Article 11 § 2 (a) of ILO Convention no. 128). Twenty member States of the Council of Europe have accepted that undertaking in one or more of these instruments, but Hungary has not.", "43. The World Health Organization’s International classification of functioning, disability and health (ICF), Annex 6 - Ethical guidelines for the use of ICF, states:", "“Social use of ICF information", "(8) ICF information should be used, to the greatest extent feasible, with the collaboration of individuals to enhance their choices and their control over their lives.", "(9) ICF information should be used towards the development of social policy and political change that seeks to enhance and support the participation of individuals.", "(10) ICF, and all information derived from its use, should not be employed to deny established rights or otherwise restrict legitimate entitlements to benefits for individuals or groups.", "(11) Individuals classed together under ICF may still differ in many ways. Laws and regulations that refer to ICF classifications should not assume more homogeneity than intended and should ensure that those whose levels of functioning are being classified are considered as individuals.”", "44. The European system of integrated social protection statistics (ESSPROS) [4] classifies pensions, as a first-level breakdown, according to four different functions: disability, old age, survivors and unemployment. In 2012, of these, pensions relating to old age were the largest category, accounting for 77.3% of total expenditure and received by the same proportion of pension beneficiaries. Survivors’ pensions were the second largest category, accounting for just less than 11.3% of expenditure and received by 20.3% of beneficiaries, followed by disability pensions, accounting for 8.4% of expenditure and received by 12.3% of beneficiaries. Unemployment pensions were the smallest category (accounting for less than 0.3% of expenditure and of beneficiaries).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1", "45. The applicant complained that she had lost her source of income, previously secured by the disability pension, because under the new system, in place as of 2012, she was no longer entitled to that, or a similar, benefit, although her health had not improved; and she submitted that this was a consequence of the amended legislation, which contained conditions she could not possibly fulfil. She relied on Article 6 of the Convention.", "46. The Chamber found it appropriate to examine the applicant’s complaint under Article 1 of Protocol No. 1, which reads as follows:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "The Grand Chamber agrees with this approach. It will therefore proceed in the same manner.", "47. The Government contested the applicant’s argument.", "A. The Chamber judgment", "48. Interpreting the Constitutional Court’s approach to the question, the Chamber was satisfied that the disability benefit, in the form of a pension or an allowance, flowed from an assertable right under the domestic law, in the sense that once the individual concerned had made the requisite contributions to the scheme, she would become entitled to it whenever her health situation so required. The Chamber observed that, during her employment, the applicant had contributed to the social-security system as required by the law. For the Chamber, those contributions resulted in a legitimate expectation that she would receive disability benefit, which expectation was formally recognised and honoured by the authorities when the applicant was granted a disability pension in 2001. The Chamber thus found Article 1 of Protocol No. 1 applicable to the case.", "49. The Chamber further held that the recognised legitimate expectation, continuous in its legal nature, could not be considered extinguished by the fact that, under a new assessment methodology, the applicant’s disability was evaluated at a lower level in 2009. Her previously obtained possession of a disability pension had been replaced at that time with the recognised legitimate expectation of continued payment of a benefit, should the circumstances again so require.", "50. In the Chamber’s view, the denial of the applicant’s eligibility for disability pension under the 2012 rules constituted an interference with her property rights as guaranteed by Article 1 of Protocol No. 1. As to the proportionality of that interference, the Chamber held that the applicant had sustained a drastic change, namely the total removal of her possibility to access disability benefits, which represented an excessive individual burden, with no possibility of remedying her situation once the new rules were enacted. For these reasons, the Chamber found that there had been a violation of Article 1 of Protocol No. 1.", "B. The parties’ submissions to the Grand Chamber", "1. The applicant", "51. The applicant was of the opinion that Article 1 of Protocol No. 1 was applicable to her case. She contended that between 2001 and 1 February 2010 she had had a possession, in the form of an existing pecuniary asset, specifically the disability pension. She had subsequently retained an assertable right to disability benefit for as long as she satisfied the criteria that were applicable in 2001; in other words, she had a legitimate expectation stemming from various sources.", "52. In her view, the former Constitution had conferred on disabled persons an entitlement to social-welfare benefits as of right. According to the Constitutional Court’s interpretation, she, as a disabled individual, had an assertable right to some form of welfare benefit. At the hearing, she referred to decisions no. 37/2011 of the Hungarian Constitutional Court and no. 1 BvL 1/09 of the German Federal Constitutional Court, both confirming, in her view, the existence of a right to a social allowance for those in need, to the extent that this is required for basic subsistence.", "53. Moreover, she relied on Article 12 § 2 of the European Social Charter, which contains a reference to ILO Convention no. 102, setting forth minimum standards in the field of social security, as well as on the United Nations Convention on the Rights of Persons with Disabilities. In her view, these texts, forming part of Hungary’s obligations under international law, also provided for an assertable right to disability benefit.", "54. The applicant further argued that her right to disability pension was likewise assertable under the domestic law, in particular Act no. LXXXI of 1997 on Social-Security Pensions. Under the terms of that statute, she had obtained an assertable right to a disability benefit on the strength of having become disabled; in subsequently granting her the disability pension, the authorities had merely endorsed that right, already existing.", "55. At the hearing, the applicant noted that the Government had accepted, if only for the period until her actual pension entitlement was terminated, the existence of a legitimate expectation flowing from the domestic law as in force when her eligibility was first established in 2001.", "56. The applicant stressed that her health condition had not improved, as was stated in the expert opinion of 16 February 2011. Accordingly, she had not ceased to satisfy the relevant conditions; instead, it was the legal conditions which had changed. She noted that the Government had not produced any medical report or expert opinion clearly pointing to any improvement in her health.", "57. The interference with her rights under Article 1 of Protocol No. 1 consisted not only in the dismissal of her request in 2012 but in a “continuing situation” of interference since the withdrawal of her disability pension in 2010, enshrined in the persistent denial of disability benefits, notwithstanding the periodic reviews undergone by her. As this rendered the six-month rule inapplicable, the applicant invited the Grand Chamber to examine the lawfulness of the termination of her disability pension in 2010.", "58. Furthermore, the applicant argued that the disability pension had been withdrawn by way of quasi-retroactive legislation, without regard to acquired rights and on the ground of an assessment methodology of dubious legal value. The Government had failed to provide any truly legitimate aim pursued by the interference. Nor was it proportionate. Despite her continuous illness, her disability benefit had been unduly withdrawn and her subsequent requests had also been unduly denied. Rather than having to endure a reasonable and commensurate reduction in the level of benefits, she had been totally divested of her means of subsistence and had thus to bear an excessive individual burden.", "59. Lastly, the applicant insisted, for the first time in her memorial to the Grand Chamber, on the need for a separate scrutiny of the facts of the case under Article 8 of the Convention should the Court be unable to find Article 1 of Protocol No. 1 applicable to her claim.", "2. The Government", "60. The Government argued that the application was inadmissible as being incompatible ratione materiae with the provisions of the Convention or its Protocols. The legitimate expectation to receive a disability benefit ‑ which admittedly had been generated by the domestic law in 2001 when the applicant’s eligibility had first been established – had been extinguished with the withdrawal of her entitlement in 2010. The Government added that, had the law not been amended, she would once again have become eligible when her health impairment was again assessed as exceeding the relevant threshold in 2012. The Constitution could not serve as a basis in national law for the legitimate expectation as argued by the applicant, since it merely laid down principles, whereas the actual eligibility rules for disability benefits were outlined in other legal provisions.", "61. In the Government’s opinion, the broadening of the notion of legitimate expectation – as suggested by the Chamber judgment – would be wholly inconsistent with the Court’s case-law, place an excessive financial burden on the Contracting States and exert a “chilling effect” on national legislatures intent on reforming their social-security systems. The Convention did not guarantee any property rights independently from the domestic law of sovereign States. At the hearing, they cautioned against the stealthy creation of an independent European social law on an undefined basis, without the checks and balances that only a State legislature could guarantee.", "62. According to the Government, some improvement in the applicant’s health had been substantiated by the expert opinion and the national court’s judgment (see paragraphs 15 and 16 above). This was also indicated by the fact that her 67% loss of working capacity under the pre-2008 system would have been equivalent to 54% health impairment under the new methodology; however, it had been assessed at 40% in 2009, which thus indicated a certain improvement in her health. The regular statutory reviews foreseen by the expert opinions prior to the withdrawal of the disability pension suggested only that the applicant’s ailments were susceptible to evolution, whereas the periodic reviews subsequent to that withdrawal had been requested by the applicant, rather than ordered by the authorities, and could therefore not be interpreted as proof of any subsisting legitimate expectation.", "63. The Government further asserted that ex post facto legislation was typical of any social-security system, because of the lengthy and continuing nature of the social-security relationship between an insured person and the State. Applications for such benefits were normally not adjudicated on the basis of the law as in force at the beginning of the insurance relationship but rather under the law as it stood when the request was decided upon. Amendments enacted in the meanwhile to social-security laws might thus inevitably impose an individual burden on the insured. Any ex post facto legislation could only be validly disputed if the new law concerned those already in receipt of a benefit at the time of the entry into force of the retroactive law; however, this was not the case here.", "64. The Government also argued that the State could not be held liable for the applicant’s failure to acquire the requisite insurance cover. Had she contributed to the scheme without interruption through social-security contributions while she was capable of doing so, she could most probably have attained the requisite number of days. To dispense the applicant from making the necessary contributions would be unfair and discriminatory towards those in a comparable situation who had diligently contributed to the social-security scheme. With regard to the actual aggregate of contributions made by the applicant, the Government submitted that this was a necessary but not a sufficient precondition, which was not capable of substituting for a valid national legal basis.", "65. Given that social-welfare cover was continuously secured for those who were entitled to it on the date that the social-security scheme in question was amended, the Government submitted that the cover did not cease to exist, nor was it reduced as a result of that change. It would be unreasonable to expect the scheme to cover everyone who had once been granted such an allowance, irrespective of the loss of such status. This would place a heavy and excessive burden on the social-security schemes of the member States, and was not required by the principle of proportionality.", "66. The Government lastly challenged the relevance of ILO Convention no. 102 on Social Security (Minimum Standards) and the International Classification of Functioning, Disability and Health (ICF) endorsed by the Member States of the World Health Organisation. With respect to the ILO Convention, the Government referred to the lack of a minimum level of adherence by European States; with regard to the ICF, they pointed to the absence of an “international-law” character.", "C. The third-party intervener’s arguments", "67. The European Trade Union Confederation (ETUC) set out the international standards and case-law, as well as the practice in European States, pertaining to the right to social security in general and the right to invalidity benefits in particular.", "68. It provided the Court with an analysis of Articles 22 and 25 (1) of the Universal Declaration of Human Rights; Article 9 of the International Covenant on Economic, Social and Cultural Rights together with the relevant general comments adopted by the Committee of Economic, Social and Cultural Rights; Article 28 of the UN Convention on the Rights of Persons with Disabilities; Conventions nos. 102 and 128 of the International Labour Organization; Article 12 of the European Social Charter; the European Code of Social Security; and Article 34 of the Charter of Fundamental Rights of the European Union. It also described the relevant practice of the European Union and Council of Europe Member States, based on the comparison of data available from the MISSOC and MISSCEO databases.", "69. Against that background, it argued that it was demonstrated that the overwhelming majority, if not the totality, of Council of Europe Member States had agreed to provide protection against the risk of invalidity, by means either of international ratifications and/or national legislation within their social-security system; and that thus a European consensus had emerged in that field. This fact should warrant, as a consequence, an interpretation of Article 1 of Protocol No. 1 to the effect that its material scope should include the right to social security in general and the right to invalidity benefits in particular.", "D. The Grand Chamber’s assessment", "1. The Government’s plea of inadmissibility", "70. The Court observes that the Government’s plea of inadmissibility, arguing the complaint’s incompatibility ratione materiae with the Convention and the Protocols thereto, was raised for the first time before the Grand Chamber.", "71. The Court sees no need to examine whether the Government are estopped under Rule 55 of the Rules of Court from making the said objection, since it finds in any event that it concerns a matter which goes to the Court’s jurisdiction and which it is not prevented from examining of its own motion (see, for instance, R.P. and Others v. the United Kingdom, no. 38245/08, § 47, 9 October 2012). It considers that, in the particular circumstances of the present case, the objection is so closely linked to the substance of the applicant’s complaint that it should be joined to the merits.", "2. Applicability of Article 1 of Protocol No. 1", "(a) General principles regarding the scope of the provision", "72. The Court reiterates that Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules. The first rule, which is set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property. The second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions. The third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose. However, the rules are not “distinct” in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many other authorities, James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98; and Sargsyan v. Azerbaijan [GC], no. 40167/06, § 217, ECHR 2015).", "73. The concept of “possession” within the meaning of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to ownership of material goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision (see Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999-II; Beyeler v. Italy [GC], no. 33202/96, § 100, ECHR 2000-I; and Parrillo v. Italy [GC], no. 46470/11, § 211, ECHR 2015).", "74. Although Article 1 of Protocol No. 1 applies only to a person’s existing possessions and does not create a right to acquire property (see Stummer v. Austria [GC], no. 37452/02, § 82, ECHR 2011), in certain circumstances a “legitimate expectation” of obtaining an asset may also enjoy the protection of Article 1 of Protocol No. 1 (see, among many authorities, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, ECHR 2007-I).", "75. A legitimate expectation must be of a nature more concrete than a mere hope and be based on a legal provision or a legal act such as a judicial decision. The hope that a long-extinguished property right may be revived cannot be regarded as a “possession”; nor can a conditional claim which has lapsed as a result of a failure to fulfil the condition (see Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, §§ 69 and 73, ECHR 2002-VII). Further, no “legitimate expectation” can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see Kopecký v. Slovakia [GC], no. 44912/98, § 50, ECHR 2004-IX). At the same time, a proprietary interest recognised under domestic law – even if revocable in certain circumstances – may constitute a “possession” for the purposes of Article 1 of Protocol No. 1 (see Beyeler, cited above, § 105).", "76. In cases concerning Article 1 of Protocol No. 1, the issue that needs to be examined is normally whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by that provision (see Iatridis, cited above, § 54; Beyeler, cited above, § 100; and Parrillo, cited above, § 211). In applications concerning claims other than those relating to existing possessions, the idea behind this requirement has also been formulated in various other ways throughout the Court’s case-law. By way of example, in a number of cases the Court examined, respectively, whether the applicants had “a claim which was sufficiently established to be enforceable” (see Gratzinger and Gratzingerova, cited above, § 74); whether they demonstrated the existence of “an assertable right under domestic law to a welfare benefit” (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2005-X); or whether the persons concerned satisfied the “legal conditions laid down in domestic law for the grant of any particular form of benefits” (see Richardson v. the United Kingdom (dec.), no. 26252/08, § 17, 10 April 2012).", "77. In Kopecký, the Grand Chamber recapitulated the Court’s case-law on the notion of “legitimate expectation”. Following an analysis of different lines of cases concerning legitimate expectations, the Court concluded that its case-law did not contemplate the existence of a “genuine dispute” or an “arguable claim” as a criterion for determining whether there was a “legitimate expectation” protected by Article 1 of Protocol No. 1. It took the view that “where the proprietary interest is in the nature of a claim it may be regarded as an “asset” only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it” (see Kopecký, cited above, § 52).", "78. One of the lines of case-law on “legitimate expectation” referred to above involved situations where the persons concerned were entitled to rely on the fact that a legal act, on the basis of which they had incurred financial obligations, would not be retrospectively invalidated to their detriment (see Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, § 51, Series A no. 222; and Stretch v. the United Kingdom, no. 44277/98, § 35, 24 June 2003). In this line of cases, the “legitimate expectation” was thus based on a reasonably justified reliance on a legal act which had a sound legal basis and which bore on property rights (see Kopecký, cited above, § 47). Respect for such reliance follows from one aspect of the rule of law, which is inherent in all the Articles of the Convention and which implies, inter alia, that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by the Convention (see, as a recent authority, Karácsony and Others v. Hungary [GC], no. 42461/13, § 156, 17 May 2016, with further references).", "79. Notwithstanding the diversity of the expressions in the case-law referring to the requirement of a domestic legal basis generating a proprietary interest, their general tenor can be summarised as follows: for the recognition of a possession consisting in a legitimate expectation, the applicant must have an assertable right which, applying the principle enounced in paragraph 52 of Kopecký (rendered in paragraph 77 above) may not fall short of a sufficiently established, substantive proprietary interest under the national law.", "(b) The scope of Article 1 of Protocol No. 1 in regard to social benefits, in particular disability/invalidity benefits", "80. In the modern, democratic State, many individuals are, for all or part of their lives, completely dependent for survival on social-security and welfare benefits. Many national legal systems recognise that such individuals require a degree of certainty and security, and provide for benefits to be paid – subject to the fulfilment of the conditions of eligibility – as of right (see Stec and Others (dec.), cited above, § 51). The principles which apply generally in cases under Article 1 of Protocol No. 1 are equally relevant when it comes to social and welfare benefits (see Stec and Others (dec.), cited above, § 54). The Court has previously addressed the issue of legitimate expectation in the context of social benefits on a number of occasions (see, for example, Kjartan Ásmundsson v. Iceland, no. 60669/00, § 44, ECHR 2004 ‑ IX, and Klein v. Austria, no. 57028/00, § 45, 3 March 2011.", "81. In those legal systems where the national legislation requires mandatory contributions of employees to the social-security system, the legislation normally provides that those who have made adequate contributions and satisfied the statutory requirements of disability will receive some form of long-term disability benefit, on grounds of the principles of social solidarity and equivalency, for the period of the disability persisting or until the age of retirement. Such insurance schemes, which are typically mandatory, provide such protection, that is, the availability of benefits, for the entire period of insurance and on every occasion when the conditions of the insurance are satisfied. The relevant legal conditions are however subject to evolution. In this connection, it may be reiterated that in Gaygusuz v. Austria (16 September 1996, § 41, Reports of Judgments and Decisions 1996 ‑ IV) the Court found that the right to emergency assistance – a social benefit linked to the payment of contributions to the unemployment insurance fund – was, in so far as provided for in the applicable legislation, a pecuniary right for the purposes of Article 1 of Protocol No. 1. In Klein (cited above, § 43) it was noted that entitlement to a social benefit – in that instance, a pension payable from a lawyers’ pension scheme – was linked to the payment of contributions, and, when such contributions had been made, an award could not be denied to the person concerned. Contributions to a pension fund may thus, in certain circumstances and according to the domestic law, create a property right (see Kjartan Ásmundsson, cited above, § 39; Apostolakis v. Greece, no. 39574/07, §§ 28 and 35, 22 October 2009; Bellet, Huertas and Vialatte v. France (dec.), nos. 40832/98, 40833/98 and 40906/98, 27 April 1999; Skórkiewicz v. Poland (dec.), no. 39860/98, 1 June 1999; and Moskal v. Poland, no. 10373/05, § 41, 15 September 2009).", "82. The Court has also held that Article 1 of Protocol No. 1 imposes no restriction on the Contracting States’ freedom to decide whether or not to have in place any form of social-security scheme, or to choose the type or amount of benefits to provide under any such scheme (see Sukhanov and Ilchenko v. Ukraine, nos. 68385/10 and 71378/10, §§ 35-39, 26 June 2014; Kolesnyk v. Ukraine (dec.), no. 57116/10, §§ 83, 89 and 91, 3 June 2014; and Fakas v. Ukraine (dec.), no. 4519/11, §§ 34, 37-43, 48, 3 June 2014). If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements (see Stec and Others (dec.), cited above, § 54).", "83. In certain circumstances the making of compulsory contributions, for example to a pension fund or a social insurance scheme, may create a property right protected by Article 1 of Protocol No. 1 even before the contributor fulfils all the conditions to actually receive the pension or other benefit. This is the case when there is a direct link between the level of contributions and the benefits awarded (see Stec and Others (dec.), cited above, § 43). The payment of contributions to a pension fund may in certain circumstances create a property right in a portion of such a fund and a modification of the pension rights under such a system could therefore in principle raise an issue under Article 1 of Protocol No. 1; even if it is assumed that Article 1 of Protocol No. 1 guarantees to persons who have paid contributions to a special insurance system the right to derive benefit from the system, it cannot be interpreted as entitling that person to a pension of a particular amount (see Müller v. Austria, no. 5849/72, Commission’s report of 1 October 1975, DR 3, p. 25, § 30, quoted in T. v. Sweden, no. 10671/83, Commission decision of 4 March 1985, DR 42, p. 229, at p. 232).", "84. In this connection, it ought to be reiterated that Article 1 of Protocol No. 1 to the Convention does not guarantee, as such, any right to a pension of a particular amount (see Kjartan Ásmundsson, cited above, § 39), although where the amount of a benefit is reduced or discontinued, this may constitute interference with possessions which requires to be justified (see Valkov and Others v. Bulgaria, nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05, § 84, 25 October 2011; and Grudić v. Serbia, no. 31925/08, § 72, 17 April 2012).", "85. In determining whether there has been an interference, the Court’s enquiry will focus on the domestic law in force at the time of the alleged interference (see, as an example from the law on compensation, Maurice v. France [GC], no. 11810/03, § 67, ECHR 2005 ‑ IX).", "86. Where the person concerned did not satisfy (see Bellet, Huertas and Vialatte, cited above), or ceases to satisfy, the legal conditions laid down in domestic law for the grant of any particular form of benefits or pension, there is no interference with the rights under Article 1 of Protocol No. 1 (see Rasmussen v. Poland, no. 38886/05, § 71, 28 April 2009) where the conditions had changed before the applicant became eligible for a specific benefit (see Richardson, cited above, § 17). Where the suspension or diminution of a pension was not due to any changes in the applicant’s own circumstances, but to changes in the law or its implementation, this may result in an interference with the rights under Article 1 of Protocol No. 1 (see Grudić, cited above, § 77).", "87. In a number of cases the Court has been prepared to accept that the grant of a pension benefit, of which the applicant was subsequently divested on the grounds that the legal conditions for such a grant had not been fulfilled to begin with, could give rise to a possession for the purposes of the Protocol (see Moskal, cited above, § 45; and Antoni Lewandowski v. Poland, no. 38459/03, §§ 78 and 82, 2 October 2012). In another case it considered that the failure to fulfil a condition (namely the requirement of affiliation to a professional association), which under national law was a sufficient reason for forfeiture of a pension claim, did not lead to the conclusion that the applicant had no possession within the meaning of Article 1 of Protocol No. 1 (see Klein, cited above, § 46). Nor was the Court prevented from finding that an applicant, whose application for disabled adults allowance had been rejected on the grounds of his non-fulfilment of a statutory nationality condition, had a pecuniary right for the purposes of Article 1 of Protocol No. 1 (see Koua Poirrez v. France, no. 40892/98, §§ 37-42, ECHR 2003-X). By contrast, in yet a further case, the mere fact that the public authorities had tolerated the cumulating of two pensions and, where it was permitted, reimbursement of the contributions for one of them, did not give rise to a right protected by the Protocol (see Bellet, Huertas and Vialatte, cited above).", "88. The fact that a person has entered into and forms part of a State social-security system (even if a compulsory one, as in the instant case) does not necessarily mean that that system cannot be changed, either as to the conditions of eligibility of payment or as to the quantum of the benefit or pension (see, mutatis mutandis, Carson and Others v. the United Kingdom [GC], no. 42184/05, §§ 85-89, ECHR 2010; and Richardson, cited above, § 17). Indeed, the Court has accepted the possibility of amendments to social-security legislation which may be adopted in response to societal changes and evolving views on the categories of persons who need social assistance, and also to the evolution of individual situations (see Wieczorek v. Poland, no. 18176/05, § 67, 8 December 2009).", "89. Thus, as can be seen from the above case-law, where the domestic legal conditions for the grant of any particular form of benefits or pension have changed and where the person concerned no longer fully satisfies them due to the change in these conditions, a careful consideration of the individual circumstances of the case – in particular, the nature of the change in the requirement – may be warranted in order to verify the existence of a sufficiently established, substantive proprietary interest under the national law. Such are the demands of legal certainty and the rule of law, which belong to the core values imbuing the Convention.", "(c) Application of these principles to the present case", "90. At the outset, the Grand Chamber notes that in the proceedings before it the applicant reverted to her argument made before the Chamber concerning the allegedly “continuing situation” of the interference originating in the discontinuation of her disability pension in 2010 (see paragraph 57 above). However, the Grand Chamber also notes that the Chamber considered that the Nyíregyháza Labour Court’s judgment of 1 April 2011 dismissing the applicant’s appeal was final, and that the application to the Strasbourg Court had been filed more than six months later. For that reason, the Chamber considered that it was prevented, pursuant to Article 35 § 1 of the Convention, from examining the procedure having led to the judgment of 1 April 2011 (see § 31 of the Chamber judgment). The Grand Chamber therefore has no jurisdiction to examine the proceedings that ended with the judgment of 1 April 2011.", "91. The Grand Chamber will accordingly limit its examination to the case as it was declared admissible by the Chamber (see K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001-VII), namely the applicant’s grievance resulting from the proceedings which began with the applicant’s request for a disability pension submitted on 20 February 2012 and which ended with the Nyíregyháza Administrative and Labour Court’s judgment of 20 June 2013, in which she was found ineligible for a disability pension under the 2012 rules on account of an insufficient period of social cover (see the description of the relevant proceedings in paragraphs 19 to 23 above).", "92. However, in examining whether the outcome of the proceedings ending with the judgment of 20 June 2013 (see paragraph 23 above) was compatible with Article 1 of Protocol No. 1, the Court is not prevented from taking into account facts that occurred before and after the decision of 1 February 2010.", "93. The Court notes that the system of disability allowances in question, both in its pre-2012 and its current form, essentially operated on the basis of two cumulative eligibility criteria: (i) a “health condition”, under which the benefit was due only to persons whose health and employment status so required, and (ii) a “contribution condition”, which required the fulfilment of a certain service period (as under the pre-2012 legislation) or, in essence, a period covered by social-security contributions (see paragraphs 28 and 29 above).", "94. Thus, when the applicant completed the requisite service period (on a date not specified but by 2001 at the latest) she fulfilled the “contribution condition” as contained in the law in force at the time; and, when in 2001 her disability was established as exceeding the requisite level, the second criterion (the “health condition”) was also met. Accordingly, from 2001 until 2009/10, that is, for almost ten years, the applicant fulfilled all the conditions of eligibility for receiving a disability pension as of right (see Stec and Others (dec.), cited above, § 51, quoted in paragraph 80 above). The decision granting her a disability pension in accordance with the provisions of the 1997 Act and which formed the basis of her original entitlement could thus be regarded as representing an “existing possession” (see Kopecký, § 35(c)). Further, it seems undeniable that throughout the said period, she could, on the basis of the said “legal act”, entertain a “legitimate expectation” (ibid., § 47) of continuing to receive disability benefits should her disability persist to the requisite degree, there being no dispute as to the correct interpretation and application of domestic law (ibid., § 50).", "95. However, the question arises whether the applicant’s legitimate expectation still existed on 1 January 2012, when the legislature changed the contribution criteria for the disability benefit, effectively invalidating the legal effect of the fact that she had already once fulfilled the “contribution condition”. Due to that legislative change, she was denied disability allowance on the ground that she was not eligible under the newly introduced contribution rules. This state of affairs was then reaffirmed in the applicant’s individual case, with authoritative force, by the final judgment of the Nyíregyháza Administrative and Labour Court, adopted on 20 June 2013 (see paragraph 23 above). It is only if her legitimate expectation continued to exist until 1 January 2012 that this legislative amendment could be considered to constitute an interference with the applicant’s possessions within the meaning of Article 1 of Protocol No. 1.", "96. The parties’ positions diverged as to whether the applicant’s legitimate expectation to receive disability benefits whenever eligible (see paragraphs 51, 55 and 60 above) was extinguished after the discontinuation of her entitlement to the pension in 2010. Thus, the question to be determined by the Court is whether in 2012, when the applicant applied for disability allowance on the basis of the new finding that her health was sufficiently impaired, she still had a legitimate expectation, satisfying the criteria in its case-law, of receiving disability benefits.", "97. In examining this question, the Court does not find it necessary to resolve the disagreement between the parties as to whether or not the applicant’s health had actually improved in the period at issue. It notes that, according to the expert opinion of 16 February 2011 submitted to the Labour Court (see paragraph 15 above), her condition had not significantly improved since 2007. Moreover, it was not in dispute between the parties that her medical situation would have made her eligible for the disability benefit in 2012 had the new law not entered into force earlier that year. Indeed the Government even confirmed that this would have been the case (see paragraphs 22 and 60 above).", "98. The question whether the applicant still had a legitimate expectation, satisfying the criteria in the Court’s case-law, at the time of the entry into force of the new legislation in 2012 cannot be answered solely on the basis of that legislation. The underlying reason for such an assertion is that the principles which exclude the finding of an interference where the person concerned ceases to satisfy the legal conditions laid down in domestic law cannot be mechanically applied to situations where the complaint specifically concerns the very change in the legal conditions that is at issue.", "99. Therefore, to limit the Court’s scrutiny to the question as to whether Article 1 of Protocol No. 1 is inapplicable on the sole ground of the absence of a domestic legal basis in 2012 would be tantamount to deliberately circumventing the crux of the applicant’s grievance, that crux being precisely the change in the law (see Lakićević and Others, cited above, § 70) annihilating the previously existing legal basis for her disability allowance. The change in the law effectively imposed on a certain category of insured persons, including the applicant, a condition whose advent had not been foreseeable during the relevant potential contributory period and which they could not possibly satisfy once the new legislation entered into force – a combination of elements which is ultimately difficult to reconcile with the rule of law. The Court points out at this juncture that the Convention is intended to guarantee rights that are “practical and effective” rather than theoretical and illusory (see Perdigão v. Portugal [GC], no. 24768/06, § 68, 16 November 2010). To hold that although a person has contributed to an insurance scheme and has satisfied its contributory requirement, he or she could be totally deprived of the legitimate expectation of eventual benefits would sit uncomfortably with this principle.", "100. As mentioned above, a proprietary interest recognised under domestic law – even if revocable in certain circumstances – may constitute a “possession” for the purposes of Article 1 of Protocol No. 1 (see Beyeler, cited above, § 105). In following such an approach, the Court has declared Article 1 of Protocol No. 1 applicable in a number of cases where the applicants, by the time they lodged their application with the Court, no longer satisfied the conditions of entitlement laid down in national law for the benefit in question (see, for example, Kjartan Ásmundsson, cited above, § 40).", "101. A closer examination is therefore warranted as to whether, at least until the alleged legislative interference in 2012, the applicant had a sufficiently established, substantive proprietary interest that qualified as a “possession” for the purposes of Article 1 of Protocol No. 1 (see paragraph 79 above).", "102. In this connection, the Court observes in particular that during the intervening period between the discontinuation of the applicant’s disability pension in 2010 and the legislature’s introduction of the new contribution requirement in 2012, the applicant not only continued to be part of the social-security system but also continued to fulfil the relevant length-of-service requirement for disability benefits. Co-operating with the authorities at all times, and actively and continuously pursuing her disability claim, she underwent several periodic reassessments of her condition in the years 2011 and 2012; further such assessments were scheduled for November 2012, April and September 2014 and March 2015.", "103. In its ruling of 1 April 2011, the Nyíregyháza Labour Court noted that the applicant had accrued 23 years and 71 days of service time (see paragraph 16 above), which, the Court observes, far exceeds the five-year minimum period (prior to contingency) warranting at least a reduced invalidity benefit under the European Code of Social Security and ILO Conventions nos. 102 and 128 (see paragraph 42 above). Furthermore, whilst approving the withdrawal of the applicant’s disability pension as of 1 February 2010, the Labour Court expressly confirmed that a new medical assessment could take place in 2012 and drew her attention to the possibility of making a renewed application should her health deteriorate (see paragraph 16 above).", "104. Moreover, although for a while her degree of disability was considered somewhat below the minimum level required (40% in December 2009 and April 2011, then 45% in September 2011, see paragraphs 12 to 17 above), in December 2011, that is, before the end of the said period, it reached 50%, as it did again in February 2012. It was undisputed that this disability level would have qualified the applicant for a disability benefit in February 2012 had it not been for the new retroactive contribution requirement, which was not met by her. In the meantime, on 13 December 2011, she had been recommended for rehabilitation and for the accompanying allowance – a type of benefit closely related to disability pension (see paragraph 17 above) and introduced to take the place of the disability pension for individuals capable of being rehabilitated. However, the authorities did not implement this recommendation. Had they done so, the applicant might have been in receipt of a benefit on 31 December 2011, which would have altered her situation under the new law.", "105. The Court reiterates that the applicant contributed to the insurance scheme on a mandatory basis and satisfied the statutory requirements of eligibility for disability benefits. The Court has already noted that contributions to a pension fund may, in certain circumstances and according to the domestic law, create a property right for the purposes of Article 1 of Protocol No. 1 (see paragraphs 81 and 83 above) and finds that such circumstances exist in the present case, in view of the fact that her contribution was recognised as sufficient at the latest on 1 April 2001 (see paragraph 11 above). She could therefore reasonably rely on the promise of the law that she would be entitled to disability benefits whenever she satisfied the applicable health-related conditions.", "106. In these circumstances, the Court does not consider that the reduction in the applicant’s disability degree in 2009, the resultant discontinuation of her disability pension in 2010 or any other factors pertaining to her pension status during the intervening period until 31 December 2011 were sufficient to extinguish her legitimate expectation that she would receive disability benefits should her disability again attain the requisite degree. On the contrary, the measures taken by the authorities and the judgment of 1 April 2011 in particular indicate that the authorities acted in full recognition of the applicant’s insured status, and therefore the applicant could have relied in a reasonably justified manner on the applicable legislation and had a legitimate expectation of receiving a disability benefit should the statutory conditions be satisfied. As the Government admit, but for the new conditions of the 2012 Act she would have qualified for disability allowance in 2013.", "107. In short, between 2010 and 31 December 2011 the applicant, while not in receipt of a pension, continued to entertain a “legitimate expectation”, covered by the notion of “possession” in Article 1 of Protocol No. 1.", "108. When, following the entry into force of the new law and relying on her newly re-assessed and sufficiently impaired health, the applicant applied for disability allowance in 2012, she did no more, in the Court’s view, than seek to avail herself once again of an existing legitimate expectation to be provided with a social-security benefit, rather than pursuing the “acquisition” of a “possession”. It was not in dispute between the parties that the applicant would have been eligible for the disability allowance from the date on which her health impairment was found in 2012 to have exceeded the relevant threshold, had the new law not entered into force earlier that year (see paragraphs 22 and 60 above).", "109. The interference in question, which resulted from the entry into force of the new law as from 2012, consisted in a complete refusal of the applicant’s request for the disability allowance; in other words, her right to derive benefits from the social-insurance scheme in question was infringed in a manner that resulted in the impairment of her pension rights.", "110. These elements are sufficient for the Court to find that Article 1 of Protocol No. 1 is applicable in the present case. The Government’s preliminary objection concerning incompatibility ratione materiae with the provisions of the Convention must thus be dismissed.", "111. In view of this conclusion, the Court finds that it is not warranted to address the parties’ further arguments intended to elucidate the nature of the disputed entitlement as it is described by various international texts.", "3. Compliance with Article 1 of Protocol No. 1", "(a) General principles", "112. An essential condition for an interference with a right protected by Article 1 of Protocol No. 1 to be deemed compatible with this provision is that it should be lawful. The rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Iatridis, cited above, § 58; Wieczorek, cited above, § 58; and Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 96, 25 October 2012).", "113. Moreover, any interference by a public authority with the peaceful enjoyment of possessions can only be justified if it serves a legitimate public (or general) interest. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures interfering with the peaceful enjoyment of possessions. The notion of “public interest” is necessarily extensive. In particular, the decision to enact laws concerning social-insurance benefits will commonly involve consideration of economic and social issues. The Court finds it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one and will respect the legislature’s judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation (see, mutatis mutandis, The former King of Greece and Others v. Greece [GC], no. 25701/94, § 87, ECHR 2000-XII; Wieczorek, cited above, § 59; Frimu and Others v. Romania (dec.), nos. 45312/11, 45581/11, 45583/11, 45587/1 and 45588/11, § 40, 7 February 2012; Panfile v. Roumania (dec.), no. 13902/11, 20 March 2012, and Gogitidze and Others v. Georgia, no. 36862/05, § 96, 12 May 2015).", "114. This is particularly so, for instance, when passing laws in the context of a change of political and economic regime (see Valkov and Others, cited above, § 91; the adoption of policies to protect the public purse (see N.K.M. v. Hungary, no. 66529/11, §§ 49 and 61, 14 May 2013); or to reallocate funds (see Savickas v. Lithuania and Others (dec.), no. 66365/09, 15 October 2013); or of austerity measures prompted by a major economic crisis (see Koufaki and ADEDY v. Greece (dec.), nos. 57665/12 and 57657/12, §§ 37 and 39, 7 May 2013; see also da Conceição Mateus and Santos Januário v. Portugal (dec.) nos. 62235/12 and 57725/12, § 22, 8 October 2013; da Silva Carvalho Rico v. Portugal (dec.), § 37, no. 13341/14, 1 September 2015).", "115. In addition, Article 1 of Protocol No. 1 requires that any interference be reasonably proportionate to the aim sought to be realised (see Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, §§ 81‑94, ECHR 2005‑VI). The requisite fair balance will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no. 52; Kjartan Ásmundsson, cited above, § 45; Sargsyan, cited above, § 241; Maggio and Others, cited above, § 63; and Stefanetti and Others, cited above, § 66).", "116. In considering whether the interference imposed an excessive individual burden the Court will have regard to the particular context in which the issue arises, namely that of a social-security scheme. Such schemes are an expression of a society’s solidarity with its vulnerable members (see Maggio and Others, § 61, and Stefanetti and Others, § 55, both cited above, and also, mutatis mutandis, Goudswaard-Van der Lans v. the Netherlands (dec.), no. 75255/01, ECHR 2005-XI).", "117. The Court reiterates that the deprivation of the entirety of a pension is likely to breach the provisions of Article 1 of Protocol No. 1 and that, conversely, reasonable reductions to a pension or related benefits are likely not to do so. However, the fair balance test cannot be based solely on the amount or percentage of the reduction suffered, in the abstract. In a number of cases the Court has endeavoured to assess all the relevant elements against the specific background (see Stefanetti and Others, cited above, § 59, with examples and further references; see also Domalewski, v. Poland (dec.), no. 34610/97, ECHR 1999 ‑ V). In so doing, the Court has attached importance to such factors as the discriminatory nature of the loss of entitlement (see Kjartan Ásmundsson, cited above, § 43); the absence of transitional measures (see Moskal, cited above, § 74, where the applicant was faced, practically from one day to the next, with the total loss of her early-retirement pension, which constituted her sole source of income, and with poor prospects of being able to adapt to the change); the arbitrariness of the condition (see Klein, cited above, § 46), as well as the applicant’s good faith (see Moskal, cited above, § 44).", "118. An important consideration is whether the applicant’s right to derive benefits from the social-insurance scheme in question has been infringed in a manner resulting in the impairment of the essence of his or her pension rights (see Domalewski, cited above; Kjartan Ásmundsson, cited above, § 39; Wieczorek, cited above, § 57; Rasmussen, cited above, § 75; Valkov and Others, cited above, §§ 91 and 97; Maggio and Others, cited above, § 63; and Stefanetti and Others, cited above, § 55).", "(b) Application of these principles to the present case", "119. In the present case the parties differed as to whether the interference with the applicant’s property right was “subject to the conditions provided for by law” within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 and whether it was possible to identify a legitimate aim pursued by it.", "120. The Court notes that the interference consisted in the specific legislation introduced as of 2012 and in its application in the instant case. It is therefore satisfied that the interference complied with the requirement of lawfulness contained in the above provision.", "121. The Court further considers that the interference complained of pursued the communal interest in protecting the public purse, by means of rationalising the system of disability-related social-security benefits.", "122. As to the proportionality of the interference, the respondent Government offered little comment.", "123. The Court notes that the applicant was subjected to a complete deprivation of any entitlements, rather than to a commensurate reduction in her benefits, such as by, for example, calculating an allowance pro rata on the basis of the existing and missing days of social cover (see Kjartan Ásmundsson, §§ 44-45; Lakićević, § 72; and, a contrario, Richardson, § 24; and Wieczorek, § 71, all cited above), in view of the fact that her social-security cover was only 148 days short of the required length. This element gains particular importance in view of the fact that the applicant did not have any other significant income on which to subsist (see paragraph 25 above; compare also Kjartan Ásmundsson, cited above, § 44) and that she evidently had difficulties in pursuing gainful employment and belonged to the vulnerable group of disabled persons (see Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010). The Court is indeed mindful of the special characteristics of the type of pension at issue. Although, as mentioned above, the applicant was recommended for rehabilitation in December 2011, rehabilitation was not undertaken and she was not offered the related allowance (see paragraphs 17 and 104 above).", "124. In the light of the above considerations, the Court is of the view that the disputed measure, albeit aimed at protecting the public purse by overhauling and rationalising the scheme of disability benefits, consisted in legislation which, in the circumstances, failed to strike a fair balance between the interests at stake. Such considerations cannot, in the Court’s view, justify legislating with retrospective effect and without transitional measures corresponding to the particular situation (see Moskal, cited above, §§ 74 and 76; see also the ruling of the Court of Justice of the European Union referred to in Baka v. Hungary [GC], no. 20261/12, § 69, 23 June 2016), entailing as it did the consequence of depriving the applicant of her legitimate expectation that she would receive disability benefits. Such a fundamental interference with the applicant’s rights is inconsistent with preserving a fair balance between the interests at stake (see, mutatis mutandis, Pressos Compania Naviera S.A. and Others, cited above, § 43).", "125. It should also be noted that the applicant was deprived of entitlement to any allowance, despite the fact that there is no indication that she failed to act in good faith at all times, to co-operate with the authorities or to make any relevant claims or representations (compare Wieczorek, cited above, § 69 in fine ).", "126. The Court thus considers that there was no reasonable relation of proportionality between the aim pursued and the means applied. It therefore finds that, notwithstanding the State’s wide margin of appreciation in this field, the applicant had to bear an excessive individual burden (see Kjartan Ásmundsson, cited above, § 45), amounting to a violation of her rights under Article 1 of Protocol No. 1.", "127. Having reached this conclusion, there is no cause for the Court to consider the applicant’s alternative argument based on Article 8 of the Convention (see paragraph 59 above).", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "128. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "129. The applicant claimed 13,185 euros (EUR) in respect of pecuniary damage, which amount corresponds to 68 months’ outstanding disability benefit. Moreover, she claimed EUR 6,000 in non-pecuniary damage.", "130. The Government contested these claims.", "131. The Court cannot speculate on the amount of disability benefit which would have been disbursed to the applicant had the violation not occurred. It therefore awards her a lump sum of EUR 10,000 in respect of the pecuniary damage sustained. Moreover, it considers that she must have suffered some non-pecuniary damage on account of the distress suffered and awards her, on the basis of equity, EUR 5,000 under this head.", "B. Costs and expenses", "132. The applicant also claimed EUR 19,220, inclusive of value-added tax (VAT), for the costs and expenses incurred before the Court. This sum corresponds to 121.5 hours of legal work and 19.9 hours of paralegal work, billed by her lawyers and their staff at hourly fees of EUR 150 (inclusive of VAT) for lawyers’ fees and EUR 50 (inclusive of VAT) for the paralegals.", "133. The Government contested this claim.", "134. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 15,000 covering costs under all heads, less EUR 2,204.95, corresponding to the total amounts paid to the applicant’s lawyers under the Council of Europe’s legal-aid scheme with regard to the procedures before the Chamber and the Grand Chamber; the sum to be awarded is thus EUR 12,795.05.", "C. Default interest", "135. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicants were born in 2001 and 1967 respectively and live in Bucharest.", "A. The applicants ’ background", "9. The first applicant is the second applicant ’ s son.", "10. The first applicant has spastic quadriplegia, a medical condition characterised by impaired function in the limbs but which does not affect his mental capacities. From the age of one, he was registered as having a severe disability ( grad de handicap sever ) requiring a personal assistant.", "11. Owing to his disability, the first applicant has undergone complex and ongoing medical treatment aimed at maintaining the mobility of his limbs and compensating for abnormalities in muscle tone. He has undergone regular surgery, has been admitted on several occasions to rehabilitation clinics in Romania and Ukraine, has undergone neurological and orthopaedic tests in Israel and is under constant physiotherapy. He relies on assistive devices to walk, including electric wheelchairs, mopeds and tricycles. His health is monitored at M.C. Children ’ s Hospital in Bucharest. In January 2011 the first applicant underwent significant surgical interventions which left him wheelchair-bound.", "12. The second applicant is a single parent and sole breadwinner.", "13. When the first applicant reached school age, the authorities assessed his situation and recommended that he attend a mainstream school (report of 25 October 2007, see paragraph 35 below). The recommendation was maintained in all subsequent assessments.", "14. On 8 February 2013 the Bucharest Directorate General for Social Welfare and Child Protection ( Direcţia Generală de Asistenţă Socială şi Protecţia Copilului, “the child protection authority”) drafted a plan for the first applicant ’ s physical rehabilitation. It listed the rights provided for by law, such as the right to special allowances, free public transport, parking in spaces reserved for people with disabilities, physiotherapy, and special arrangements at school such as a specially adapted curriculum and methods of testing, appropriate physical education, appropriate facilities in the school building to ensure accessibility, and assistance from a school nurse. It recommended that a personal assistant be hired by its Human Resources Department and that the accessibility of public infrastructure be improved (accessibility of kerbs, pedestrian crossings and pathways, public transport stations and parks).", "15. The first applicant attended several schools:", "(a) In 2004 the first applicant was enrolled in nursery school but, according to the second applicant, he was forced to leave after only three days, when the school manager informed the mother that her institution “[did] not do handicap”.", "(b) From 2007 to April 2013 the first applicant attended classes at school no. 131, a mainstream educational facility for primary and secondary education (children aged six to fourteen). The school building was located sixty metres from the applicants ’ home. The applicants argued that the school did not offer adequate conditions despite the authorities ’ reassurance and the applicants ’ continuous efforts.", "(c) In the academic year 2013/14 the first applicant attended school no. 148 where, according to the applicants ’ submissions, the conditions and the support were acceptable.", "(d) In October 2015 he started classes in “Mihai Eminescu ” High School (“M.E. School”) where he remained until 2017. The applicants complained about the conditions in this school.", "(e) On 30 August 2017 the first applicant moved to a private school for the second-last year of high school. In April 2018, the date of the latest communication to the Court from the applicants, he was still attending this school.", "B. Accessibility of school premises", "1. The applicants ’ version", "(a) School no. 131", "16. The applicants ’ description of the situation concerns the academic years 2011/12 and 2012/13. When the first applicant started school, the school building had no facilities for disabled students. A new gate had to be pierced in the fence facing the street where the applicants lived and a concrete strip was laid leading to the students ’ entrance in the main building. The toilets were not equipped for disabled children and a cubicle was improvised in the girls ’ toilet on the first floor. Later, in 2013, a special toilet on the ground floor was equipped for the needs of children with disabilities, but the first applicant still required support when using it. The sports facilities were not adapted for the use of disabled children and the first applicant could neither take part in class sports activities nor do the exercises recommended by his physicians in order to help with his muscle tone.", "17. The second applicant alleged that, at her own expense, she had arranged for small adjustments to be made to the classroom and toilet, such as rails on the walls, to facilitate her son ’ s movements.", "18. Because there were no access ramps in the school, the first applicant could not on his own reach the upper floors of the building, where some important facilities were located such as the doctor ’ s office, the psychologist ’ s office, the laboratories and the after-school care facilities. The second applicant had to spend significant amounts of time at the school carrying him and the walking devices to the upper floors, and helping him go to the toilet, do the mandatory physical exercise recommended by his physicians and carry his school books, lunchbox and other items. In the first applicant ’ s first four years at school, in addition to his mother ’ s support, his classmates or the school staff also helped him with some of these tasks.", "19. The absence of adequate medical personnel at the school and the lack of access to medical facilities during school hours contributed to the worsening of the first applicant ’ s physical condition. The benefits he gained from surgery were lost and he became less autonomous and more reliant on support from others.", "20. Because of the lack of accessibility of public buildings, the first applicant could not be included in some of the school activities, such as outings. No alternative activities were provided for him. The second applicant ’ s attempts to have extracurricular activities arranged for her son remained futile; for example, although the child was admitted to piano lessons, the building housing the piano club was inaccessible to wheelchairs.", "21. In time the situation generated tensions between, on the one hand, the applicants and, on the other hand, the school staff, the other children and their parents.", "(b) M.E. School", "22. According to the applicants, the school building was not adapted for the needs of children with disabilities and its premises remained mostly inaccessible. In the absence of any support in school, the second applicant had to physically carry her son on a daily basis around the school building and to the upper floors where the science laboratory and the gym were situated. The school also failed to provide for his basic needs such as personal and intimate care, feeding and moving around. He was often abandoned unassisted in the school corridors.", "23. The applicants submitted that during the first applicant ’ s stay in M.E. School, the authorities had failed to devise and implement an individualised educational plan. The teaching, testing and curriculum had not been adapted to his situation and some of the school teachers had openly refused to adapt their routine to his needs or had asked that he be sent to a special school, an attitude which had been tolerated by the school administration.", "2. The Government ’ s version", "(a) School no. 131", "24. Based on the information provided by the management of school no. 131 and the local administration, the Government gave a different account of the situation. They explained that from the time of his enrolment in the school, the needs of the first applicant had always been taken into account.", "25. In September 2008 the school administration contacted the Bucharest Schools Inspectorate ( Inspectoratul Şcolar al Municipiului Bucureşti, “the ISMB”), in order to seek financial help to adapt the school premises to the first applicant ’ s needs.", "26. During 2012 and 2013 the school buildings were rendered more accessible to wheelchairs. In particular, an access ramp was installed; one toilet cubicle was equipped with an alarm bell linked directly to the school secretariat; the yard was asphalted; the nurse ’ s office was moved to the ground floor, next to the first applicant ’ s classroom; the first applicant was provided with specially adapted desks in the classroom; and an air- conditioning unit was placed in the classroom.", "27. On 7 April 2014 an ISMB internal audit concluded, after verifying the school documents, that the entire cost of the work had been met from the school ’ s budget.", "28. The first applicant was able to use the toilet facilities but because of the deterioration of his general health he was sometimes unable to reach the toilets on time. The school personnel helped with all aspects of his personal and intimate care and offered fresh clothes when his mother did not want to provide clean changes.", "29. The child did not return to school after 3 April 2013 (see paragraph 69 below). From the official documents it appears that from 7 to 24 May 2013 the first applicant received medical treatment in Băile Felix Hospital and attended classes in the nearby Oradea School Centre for Inclusive Education. According to the Government, the second applicant did not inform the administration of school no. 131 about this situation and continued to complain that she and her son were being denied access to the school premises.", "(b) M.E. School", "30. Starting with the 2015/16 school year the first applicant attended classes in M.E. School. At that time, the building was partially accessible: it was equipped with an access ramp, had classrooms on the ground floor, and had access in the yard for a specially adapted car.", "31. On 9 September 2015, as soon as it was informed of the first applicant ’ s transfer, the M.E. School administration asked the local authorities for help in installing an accessible toilet and a lift, acquiring a computer with specially adapted software, and creating a medical office and a library on the ground floor.", "32. According to the information provided by the authorities, in March 2016 the school building had two access ramps, two reserved parking places for people with disabilities, a classroom on the ground floor, and a specially adapted desk in the first applicant ’ s classroom.", "33. The school was unable to negotiate the acquisition of a lift during the 2015/16 school year. According to the information presented by the local authorities, the second applicant refused several options proposed to her. Eventually, the school administration managed to purchase a stairlift which was installed on 21 November 2016. On the same day the school personnel were trained in how to operate it.", "34. On several occasions the second applicant brought her son into school without a wheelchair by carrying him on her back (on 3-5 February and on 3 and 18 March 2016) and left him without any means of moving around the school premises. According to the Government, at that time the school was accessible with a wheelchair, the first applicant had a specially adapted desk in his classroom and his transport to and from school was taken care of by the foundation “Motivation”. On other occasions the second applicant refused to let the child stay in school as he did not have a personal assistant.", "C. Educational support in school", "1. School no. 131", "35. On 25 October 2007 the child protection authority recommended that the first applicant attend classes in school no. 131 and be given the assistance of a support teacher ( professor de sprijin ). The recommendation was reiterated on 25 August 2011 in relation to secondary education.", "36. The school adapted the timetable and testing methods to the first applicant ’ s needs. The child was entitled to a 50% increase in the time allotted for written exams and was partly exempted from attending school. In addition, the school offered the first applicant the possibility to attend classes via Skype during periods when he needed to be away from school for medical reasons.", "2. M.E. School", "37. From 22 September 2015 M.A. was assigned as a support teacher for the first applicant. On 7 December 2015 M.A. drafted a personal intervention plan detailing the subjects that the first applicant would take in school and the specially adapted teaching methods. On the same day M.A. informed her superiors of the difficulties she had with the second applicant, who had asked her not to work with her son and had tried to dictate to her which subjects to exclude from her son ’ s curriculum.", "38. On 11 December 2015 M.A. was replaced by D.C., who on 4 March 2016 presented a new intervention plan which was accepted by the majority of the first applicant ’ s teachers. D.C. continued to assist the first applicant in the school year 2016/17, and on 15 September 2016 drafted a new intervention plan which was accepted by most of the teachers. According to the documents in the file, the second applicant refused any communication with D.C. and did not participate in any of the meetings organised by D.C. with the school staff in order to discuss the first applicant ’ s development and needs.", "39. After the adoption of decision no. 913 of 25 July 2016 (see paragraph 63 below), the authorities put in place a system for providing the first applicant with support and assistance in school. Specifically, in September 2016 the child protection authority designated for this task several professionals working in a centre for abused children who had experience in working with children. According to the Government, they encountered difficulties with the second applicant, who on occasions refused to leave the child at school, refused to explain the reason for his absence or verbally abused the representatives of the child protection authority.", "40. The first applicant did not attend school daily and was absent on several occasions, sometimes for long periods of time. He also attended other schools in the towns where he was hospitalised for treatment or rehabilitation. According to the report drafted by the support teacher, the first applicant ’ s long absences from school, as well as the second applicant ’ s attitude, had a negative impact on the first applicant ’ s education.", "D. Therapy in school", "1. School no. 131", "41. The first applicant ’ s physicians set out recommendations for the school and other authorities regarding the child ’ s medical needs, emphasising the importance of regular physiotherapy and occupational therapy, including during school hours. They advised against keeping the patient in the same position for long periods of time, as that could cause muscle rigidity and discomfort, thus compromising his rehabilitation and, in time, leading to deformities. They recommended that the child alternate periodically between sitting and standing up.", "42. In November 2012 a physiotherapist was assigned to come to the school to work with the first applicant, and the school reserved a space in the gym room for the physiotherapy sessions. During the second term of the 2012/13 school year, the physiotherapist and the first applicant met for three sessions of one hour each.", "43. At the beginning of the 2011/12 school year the school requested that it be provided with a physiotherapist, a nurse and a medical assistant.", "44. It appears from the information provided by the Government that the second applicant failed to provide the school with the medical information concerning the first applicant ’ s needs in terms of physical recuperation. The physical education teacher created a special programme for the child despite not being acquainted with the precise medical recommendations. The second applicant refused to bring the child to his sessions.", "45. The school also arranged psychological counselling for the applicants, which was not pursued as the second applicant stopped bringing the child to the meetings.", "2. M.E. School", "46. During the 2015/16 school year the first applicant received weekly sessions of speech therapy and educational therapy during the periods when he attended school. In the next school year the sessions were discontinued because the second applicant refused to give her assent.", "47. The first applicant could not receive physiotherapy in school as his mother refused to allow him to participate in any session which did not take place in the school gymnasium. She also omitted to present the medical certificates that were required in order for the therapist to adapt the sessions to the first applicant ’ s needs.", "E. Personal assistant", "48. In 2011 the second applicant asked the authorities to appoint a personal assistant for her son to provide him with support, in particular during school hours. She explained that she could not act as his personal assistant as she had to work for a living. On 15 September 2011 the school administration also informed the child protection authority that in the absence of a personal assistant the first applicant could not safely continue his studies in a mainstream school.", "49. According to the applicants, the child protection authority initially denied that the first applicant had the right to a personal assistant, then considered the second applicant to be the child ’ s personal assistant.", "50. In a judgment of 19 July 2011 (case no. 8249/3/2011), the Bucharest County Court (hereinafter “the County Court”) partly allowed an action brought by the second applicant against various authorities concerning the manner in which they had dealt with her son ’ s situation. The court observed that the rehabilitation plan had not been drawn up in accordance with the legal requirements, in particular because the second applicant had not been involved in the process and the plan had not included all the services required by the child and had not taken into account his particular needs. It therefore ordered the child protection authority to supplement the plan according to the court ’ s instructions. Furthermore, the court noted that it was not objectively impossible for the authorities to hire a personal assistant for the first applicant. It therefore ordered the child protection authority to identify a suitable person and to make a proposal to the city council, which in turn was ordered to provide the necessary funds from its budget to cover the salary of the personal assistant. The decision was upheld by the Bucharest Court of Appeal in a final decision of 9 April 2012.", "51. On 19 October 2011 the second applicant asked school no. 131 to hire a nurse who could assist her son with his needs, as an alternative to the appointment of a personal assistant, but no such appointment was made during the first applicant ’ s stay in this school (see paragraph 15 above).", "52. According to the information transmitted by the Government, between 2011 and 2014 the child protection authorities organised several interviews in order to find a suitable personal assistant for the first applicant. Eventually, on 23 May 2014 the child protection authority hired a personal assistant. On 17 September 2014 that person resigned, on the ground that the second applicant had asked her to perform tasks which were not consistent with her job description.", "53. On 29 January 2015 the second applicant informed the authorities that she insisted that a personal assistant be hired. Three individuals expressed an interest in the position and were approved by the second applicant. However, one refused to sign the contract as he considered the second applicant ’ s attitude towards him to be abusive and offensive; he explained that the second applicant had asked him to wash dishes and clean the house, tasks which had not been in his job description, and had then accused him of wanting to harm her son. The other candidates took the job on a part-time basis starting on 1 September 2015. One had to leave on 16 December 2015 as his visa was not extended, and the other resigned for health reasons on 27 January 2016.", "54. In January 2016 the authorities started the process of finding a new personal assistant, working in close contact with various non-governmental organisations involved in the protection of disabled persons.", "F. Complaints and litigation", "55. The second applicant lodged several complaints with the administrative authorities, with the National Council against Discrimination ( Consiliul Naţional pentru Combaterea Discriminării, “the NCAD”) (at least six cases lodged directly with this authority and continued before the courts), with the courts (at least five applications lodged directly with the courts) and with the prosecutor ’ s office (at least sixteen complaints have been investigated so far by the prosecutor ’ s office). These complaints mainly concerned the alleged lack of services for her son, both in school and outside school, and the manner in which the competent authorities handling his case had discharged their obligation to support the first applicant and to adapt the infrastructure to the needs of people with disabilities, and in particular to the first applicant ’ s needs.", "1. Request for a performance order (court case no. 14001/3/2014)", "56. The case concerned an application lodged by the applicants on 24 April 2014 against the authorities with responsibility for assisting the applicants with matters concerning disability and education, namely the Bucharest Centre for Resources and Educational Assistance ( Centrul Municipiului Bucureşti de Resurse şi Asistenţă Educaţională, “the CMBRAE”), the Bucharest local council of the fourth precinct, which was responsible for M.E. School (“the Bucharest IV local council”), the Bucharest local council of the fifth precinct, which was responsible for school no. 131 (“the Bucharest V local council”), the child protection authority, the Commission for Child Protection (an authority created at local level under Law no. 272/2004 on the protection and promotion of children ’ s rights), the ISMB, and the NCAD. The applicants sought to compel these authorities to re-evaluate the first applicant ’ s educational placement, to provide support in school, to adapt the school premises to the first applicant ’ s needs, and to grant compensation for the harm suffered by the child in school.", "57. On 30 June 2014 and 13 and 20 August 2015 the applicants extended their action and on the last-mentioned date asked the court to ensure that the same hardship would not continue also in M.E. School. On 25 November 2014 the Administrative Disputes Division of the County Court sent the case to the Civil Division of the same court and on 23 June 2015 the case was sent to a bench of the Civil Division specialising in children ’ s rights.", "58. In a decision of 10 June 2016 the County Court found partly in favour of the applicants and ordered the local authorities to take several actions, in accordance with their remit:", "(a) It ordered the CMBRAE to issue a new personalised intervention plan ( plan de intervenţie personalizat ); it also noted that the first applicant was already allowed extended work time during tests in class and had a specially adapted desk, but considered that those measures, while being necessary, were not sufficient.", "(b) The court ordered the CMBRAE and the ISMB to adapt the school curriculum and the educational plans to the first applicant ’ s needs, finding as follows:", "“While in the special education [curriculum] the educational plans and school curriculum are tailored to the type and degree of disability, thus allowing time for therapy ..., in mainstream schools this kind of adaptation does not exist.", "However, in the present case the child, who was placed in a mainstream school, has a normally developed intellect but has a neuromotor disability which drastically limits his movement ... A daily school programme of 6-7 hours goes against the medical recommendations ... and limits his opportunities to undergo therapy.”", "(c) It ordered the ISMB and the child protection authority to continue to provide the first applicant with psycho-educational assistance and a safe environment in school, in terms of the physical surroundings and specialist personnel. The court found as follows:", "“The current legislation provides for measures capable of ensuring the integration of children with disabilities in school and in society, notably special educational services via the support teacher, speech therapy and psycho-educational counselling. ...", "The personal rehabilitation plan drafted by the child protection authority [for the first applicant] provided for such services: physiotherapy, speech therapy and psychological counselling. ....", "Based on the parties ’ statements, the court finds that the authorities involved did not refuse to provide the child with the services that he was entitled to under the law and which were included in his personal rehabilitation plan; [what they refused were] merely the conditions imposed by the mother that [the services] should be provided on the school premises ...", "However, in order to meet the child ’ s complex needs and ensure that he had access to all services, the authorities, in addition to the psycho-educational counselling offered by the school psychologist, organised speech therapy and physiotherapy in his school.", "For these reasons, the [applicants ’ ] action is allowed and the institutions involved are ordered to take measures to ensure the continuity of services in terms of personnel, but also in terms of the physical environment and the necessary equipment.”", "(d) The court ordered the ISMB, the child protection authority, the Bucharest V local council and the Bucharest IV local council to take measures to ensure the child ’ s assistance and safety in school, via teachers, school auxiliary staff, a personal assistant or a qualified caregiver. The court found as follows:", "“The services provided in school to assist [the first applicant], provided by psychologists, speech therapists, school counsellors, support teachers, physiotherapists, etc., are necessary in order to ensure the effectiveness of the child ’ s recuperation and therapy, but do not fully meet the child ’ s complex needs during school time.", "... the child has severe neuromotor disabilities which make it impossible for him to move, to walk, to help himself, to take notes in class, etc., and which consequently make it necessary for him to be assisted by another person who can move him, as needed, from the wheelchair or assistive devices to his desk and back; help him move around the school (take charge of him at the school door, accompany him back to the door at the end of the school day, and take him to the toilet, the sports room, and the laboratories which are on the upper floor); help him with taking notes during lessons and writing down the homework; assist him with physical exercises; assist him in the event of an emergency evacuation, etc. ...", "Concerning the presence of a nurse [ infirmier ] the court notes that, although the law requires that children with disabilities be integrated in mainstream schools, the schools ’ structure does not include qualified staff who can meet the complex needs of a child with severe neuromotor disabilities that limit or exclude the child ’ s capacity to move or to help himself.", "The absence of assistance ... makes it impossible for the child to attend school and affects ... his right to education ...", "The personal assistant not only acts as an accompanying adult for a child with severe disabilities but must also provide basic care (personal hygiene, dressing and undressing, personal and intimate care, feeding, hydration, transport, mobility and movement, etc.), assist in the child ’ s family, community, and school activities, and assist in the child ’ s school and with his or her educational integration.", "There is nothing to prevent the [child protection authority] and the Bucharest V local council from including these activities in the personal assistant ’ s contract ...", "Therefore the court considers that, in principle, the assistance, supervision and safety of the child during school hours must be ensured by his personal assistant or in the latter ’ s absence ... by a person approved and nominated for the purpose by the parent ...", "For the same reason, the ISMB and the Bucharest IV local council ... must take measures in order to ensure the child ’ s effective access to education and his supervision and safety. ...", "As the court thus considers that the child ’ s action is well-founded on this count, it orders the ISMB, the child protection authority and the Bucharest IV and V local councils to take measures in order to ensure the child ’ s supervision and safety in school, via the teachers or auxiliary staff, his personal assistant or a qualified caregiver.”", "(e) The court ordered the ISMB and the Bucharest IV local council to ensure the first applicant ’ s access to education by rendering the school building accessible by wheelchair, in particular by: providing specially adapted desks in the classroom and laboratories; ensuring access to the upper floors of the school building; removing the obstacles preventing the first applicant from moving around the school, such as thresholds and narrow doors; adapting the sports room to the child ’ s needs; and providing him with a computer and software adapted to his educational needs. The court noted that on 28 October 2015, at its request, the authorities had met with the applicants in order to listen to their demands and agree on solutions. It took note of the fact that at the date of the meeting, in M.E. School, there had been two reserved parking places and a toilet adapted to the first applicant ’ s needs.", "59. At the same time, the District Court dismissed the applicants ’ request for reimbursement of the costs incurred in respect of transport to and from school with their own vehicles, on the grounds that they received financial assistance from the State in the form of free public transport and an annual lump sum for costs, which was meant to cover transport as well.", "60. Lastly, with regard to the request for non-pecuniary damage on account of the discrimination suffered by the applicants because of the authorities ’ attitude towards them, the District Court separated the issue from the main proceedings and created case no. 22624/3/ 2016. In a final decision of 31 May 2018 in that case, the Bucharest Court of Appeal ordered the ISMB, the CMBRAE and the Bucharest V local council to pay the applicants 7,500 Romanian lei (RON) [1] in respect of non-pecuniary damage.", "61. In a final decision of 7 February 2018 the Bucharest Court of Appeal examined the appeals lodged by the parties against the decision of 10 June 2016. It amended the County Court ’ s decision so that the authorities ’ obligations applied only for as long as the first applicant attended classes in a mainstream school, but dismissed the remaining appeals.", "62. On 5 April 2018 the applicants started enforcement proceedings through the offices of a bailiff.", "2. Interim injunction ( ordonanţă preşedenţială ) – case no. 16673/3/2016", "63. In decision no. 913 of 25 July 2016 the County Court ordered the authorities to appoint a person to assist the first applicant in school until the decision of 10 June 2016 became final (see paragraph 58 above).", "64. On 28 November 2016 the bailiff ordered the authorities to comply with the court order and to pay the applicants the costs of the enforcement proceedings.", "65. The Bucharest IV local council contested the enforcement proceedings, arguing that the council had already complied with the court order in so far as, when the school year had started on 12 September 2016, a person had been appointed to assist the first applicant in school. The council explained that the person appointed to assist the first applicant had been replaced on several occasions because of disagreements with the second applicant, but argued that the mere fact that the second applicant was dissatisfied with these persons could not be regarded as a failure on the part of the authorities to comply with the court order.", "66. In a judgment of 2 March 2017 the Bucharest District Court dismissed the objection and found as follows:", "“It appears that the minor, Stoian Ştefan Moshe, was unable to benefit from the measures ordered by the court not only because of the poor cooperation between his legal representative and the ... authorities, but also because of the bureaucratic mechanism for implementing the measures and the manner in which responsibilities in this sphere are shared between the authorities concerned.", "The court considers that there is no evidence that the minor ’ s legal representative refused enforcement of the obligations laid down in the court order.”", "67. On 25 April 2017 the District Court dismissed an objection to enforcement in which the ISMB and the CMBRAE also claimed that they had already complied with the court order. The court found as follows:", "“The assertions made by the objecting parties – that at the date on which the enforcement request was lodged they had already complied with the obligations laid down in the court decision – is contradicted by the facts, as the child ’ s school situation is still uncertain in so far as he still does not benefit in school from the conditions set by that court decision.”", "68. On 23 January 2018 the District Court noted that the authorities had not fully complied with their obligation under the interim injunction of 25 July 2016 and that all the objections to enforcement had been dismissed. Consequently, it ordered each of those authorities to pay RON 200 for each day of delay in enforcement.", "G. Incident of 3 April 2013", "69. On 3 April 2013 the second applicant had a dispute in school with her son ’ s teacher, during the lesson. The class teacher asked her to leave the classroom, warning her that her presence was no longer tolerated and that the authorities had been alerted. The second applicant refused to leave and was eventually removed by force by two police officers and taken to the police station. She was given a formal warning for refusing to leave the school premises. She left the police station three hours later and went back to the school to collect her son. According to the Government, during the second applicant ’ s stay in the police station, the first applicant remained in school, in the presence of the school nurse and a teacher on duty.", "70. On 31 May 2013 the applicants filed a criminal complaint about the incidents. The school headmaster, supported by parents ’ statements, also lodged a complaint against the second applicant, alleging that she had repeatedly disturbed the learning process. The second applicant and the school headmaster gave statements to the police. On 4 April 2017 the prosecutor ’ s office attached to the Bucharest District Court closed the investigation. It found, based on the evidence in the file, that the force used by the police officers had been necessary in order to put an end to the second applicant ’ s disruptive behaviour and had been proportionate to her reactions. It observed that the second applicant had disturbed lessons and had refused to leave the classroom, to show her identity papers to the police and to accompany the police officers to the police station. The prosecutor concluded that the injuries suffered by the second applicant had been the result of the use of force and of her own opposition to the police officers ’ actions. On 18 October 2017 the objection lodged by the applicants against the prosecutor ’ s decision was dismissed as out of time by the chief prosecutor from the same prosecutor ’ s office. The applicants ’ appeal was subsequently dismissed by the Bucharest District Court (final decision of 11 December 2017)." ]

[ "II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS", "71. The relevant domestic law and practice are described in Gherghina v. Romania (( dec. ) [GC], no. 42219/7, §§ 34-56, ECHR 2015).", "72. The relevant international materials are described in Çam v. Turkey, no. 51500/08, §§ 37-38, 23 February 2016, and Guberina v. Croatia, no. 23682/13, §§ 34-42, ECHR 2016).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND ARTICLE 2 OF PROTOCOL No. 1 TO THE CONVENTION TAKEN ALONE OR TOGETHER WITH ARTICLE 14 OF THE CONVENTION", "73. The applicants mainly complained that the authorities had failed to take the requisite measures in compliance with their obligations under national law and the Convention to ensure that the first applicant ’ s physical integrity and dignity were respected at school and that he enjoyed the right to quality education without discrimination. They relied on Articles 3, 8, 13 and 14 of the Convention, on Article 2 of Protocol No. 1 to the Convention and on Article 1 of Protocol No. 12 to the Convention.", "74. The Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), will examine these complaints from the standpoint of Article 8 of the Convention and Article 2 of Protocol No. 1, read alone and in conjunction with Article 14 of the Convention (see Gherghina v. Romania ( dec. ) [GC], no. 42219/07, § 59, ECHR 2015). The provisions in question read as follows:", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 2 of Protocol No. 1", "“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”", "A. Admissibility", "1. The parties ’ observations", "75. The Government argued that the applicants had failed to exhaust domestic remedies. They pointed out that several relevant sets of proceedings were still pending when the observations had been submitted, on 23 December 2014 and 1 September 2017 respectively. Moreover, they considered that the length of the proceedings in case no. 14001/3/2014 (see paragraph 56 above) had been reasonable and did not render the remedy ineffective in practice, in so far as the applicants had raised several additional complaints throughout the proceedings and during those proceedings had successfully made use of the interim injunction procedure (see paragraph 63 above).", "76. The applicants argued that the length of the proceedings initiated by them rendered those remedies ineffective, at least in practice.", "2. The Court ’ s assessment", "77. The Court makes reference to the general principles it has developed in its case-law concerning the exhaustion of domestic remedies (see Gherghina, cited above, §§ 83-89).", "78. The Court considers that the Government ’ s objection is closely linked to the substance of this complaint and decides accordingly to join it to the merits.", "79. The Court also notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ observations", "(a) The applicants", "80. The applicants reiterated that the State authorities had an obligation to adapt mainstream schools in order to include children with disabilities. However, despite the abundant legislation on the matter, the situation remained confusing, with multiple authorities that had overlapping responsibilities and were insufficiently regulated, with the result that children integrated in mainstream schools did not get the support they were formally entitled to. The applicants also argued that the assistance received by the first applicant in school had been superficial and that the schools lacked specially adapted curricula and timetables and had been unable to provide him with the proper therapy and assistance despite the court decisions ordering them to do so, which remained unenforced.", "81. The applicants contended that the concessions made to the first applicant in school, as well as the good grades he received, were mainly meant to keep him busy in class in the absence of individualised assistance from the teacher. For instance, they submitted that the first applicant had been allowed to use his tablet in class, but that the teacher never verified that he was actually using it for school purposes and not to play games. The school had also exempted him from the attendance requirement, but had never made arrangements to help him make up for his long absences.", "82. The applicants further contended that the authorities ’ failure to assist the first applicant amounted to a de facto expulsion from school, and implicitly a denial of education. However, they observed that their case was not exceptional, that children with disabilities were more likely to be segregated in special schools where they received education of inferior standard, and that the lack of inclusive education was a systemic problem in the respondent State. Lastly, they reiterated the Commissioner ’ s findings concerning inclusive education after his 2013 visit to Romania, and in particular the overreliance on special schools; the low level of attendance in mainstream schools; the high drop-out rates and the poor data collection concerning the education of children with disabilities; the lack of trained teachers and appropriate teaching methods; the lack of funding for assisting pupils with disabilities, which often forced the parents to bear the costs; the reported practice of mainstream schools refusing enrolment to children with disabilities; and the ill-treatment of children with a disability by their educators and peers. The applicants concluded that this information offered sufficient prima facie evidence of discrimination in the present case. They further relied on the findings of the UN Committee on the Rights of the Child (2017 report), the Special Rapporteur on extreme poverty and human rights (report on the mission to Romania, 8 April 2016), the European Committee of Social Rights (2016 report), UNICEF (2015 report), and on the Government ’ s Disability Strategy 2016-2020.", "83. Lastly, the applicants reiterated that accessibility was a gradual and anticipatory process by nature and that the authorities did not have to wait until a student with special needs requested it. They argued that the respondent State had had a duty to render school buildings and public infrastructure accessible since as far back as 1999, under Government Ordinance no. 102/1999. However, most of the improvements had come too late, when the applicant had already changed schools (specially adapted toilets, desks in the classrooms, stairlifts ).", "(b) The Government", "84. The Government agreed that the right of access to education for children with a disability required that a system adapted to their needs be put in place. However, such a system could not function without the cooperation of all interested parties. On this point they reiterated that on several occasions the second applicant had failed to cooperate with the authorities or to bring her child to the activities organised for him by those authorities, had behaved improperly on school premises and had disobeyed the school rules.", "85. The Government admitted that the local authorities had been late in complying with their legal obligation to render the school buildings accessible, and submitted that this was caused mainly by a lack of resources and by the other demands on the local budget. They pointed out that the school administration had compensated for those deficiencies by making reasonable accommodation for the first applicant ’ s benefit, by providing access ramps and gates for wheelchair access, asphalt in the school yard, a specially adapted toilet, air-conditioning in his classroom, and a specially adapted school desk.", "86. They further admitted that it would be desirable to appoint a personal assistant after consultation with the family of a child with disabilities. However, they urged the Court to take into account the statements made by the persons who worked as personal assistants and the difficulties they had encountered in cooperating with the second applicant.", "87. The Government accepted that not all the second applicant ’ s demands could be met, but pointed out that the authorities had to manage the budget in such a way as to cater not only to the applicants ’ needs, but also to the needs of the rest of the population dependent on State resources. Relying on McIntyre v. the United Kingdom (no. 29046/95, Commission decision of 21 October 1998, unreported) and Groza v. Romania (( dec. ), no. 31017/05, 21 February 2012), the Government argued that the measures taken by the authorities were proportionate to the legitimate aim pursued.", "88. Referring to Article 14 of the Convention, the Government further argued that the authorities had ensured that the first applicant had access to education on an equal basis with pupils who did not have disabilities. The authorities had adapted the school programme to his needs and provided both educational and physical resources to assist him in school.", "(c) The third parties ’ comments", "89. The Court received submissions from a number of third-party interveners. They all referred to the international standards for the protection of persons with disabilities, and in particular the UN Convention on the Rights of Persons with Disabilities (CRPD), General Comments nos. 4 and 5, the Social Charter and other Council of Europe standard-setting papers or recommendations, as well as similar legislation from other member States. They emphasised the need for inclusive education, which determined lifelong patterns of social inclusion. Furthermore, they stressed that in the field of education States had a positive obligation to make reasonable accommodation for children with disabilities. They pointed out that a wide gap still existed between standards in the field of education and the reality in many countries, including Council of Europe member States.", "90. The Commissioner reiterated that children with disabilities were one of the groups most affected by school segregation, and that inclusion in mainstream education was often denied to these children on account of a lack of sufficient resources to provide individual support, the non- accessibility of the school environment, and prejudice, including on the part of school administrations, educators, peers and the families of non- disabled children. Although, according to the official statistics for 2013 in the respondent State, 60% of children with a disability were in mainstream education, other reliable sources indicated that the rate of inclusion was as low as 38%. On this point, the CEDCD submitted that out of 70,600 children with disabilities registered in Romania at the time of the submission of its observations, 31,486 were segregated in special schools and 17,975 children were out of school.", "91. The Commissioner further reiterated that inclusion in mainstream education required reasonable accommodation and adequate and genuine support. He submitted that the implementation of laws on accessibility was often unduly delayed and not sufficiently monitored. In his view, the resulting lack of legal certainty, coupled with a widespread lack of understanding of the right to inclusive education, made it difficult for parents to challenge decisions infringing the right to education of their children. On this point he stressed that promptness and diligence were elements of particular relevance when considering whether a remedy in respect of a violation of children ’ s rights, such as the right to education, could be considered effective.", "92. While admitting that the complaint lodged with the NCAD did not represent an effective remedy in this sphere, the CEDCD presented three examples of successful applications before that body in which teachers, school principals and even the parents of the victim ’ s classmates had been sanctioned for discriminating against children with disabilities and trying to bully them out of mainstream schools.", "93. The United Nations Special Rapporteur on the rights of persons with disabilities reiterated that persons with disabilities could not effectively enjoy their right to education without an accessible environment, including schools and other places of education, and without accessible public transport, services and information and communications technologies. Furthermore, the authorities had an immediate obligation to provide reasonable accommodation from the moment it was requested; this could serve as a temporary solution for an individual when accessibility was lacking. The Special Rapporteur referred to the following as examples of reasonable accommodation in education: providing mobile ramps to enable access to the facilities; changing the location of a class; customising the timing of studies; adapting or acquiring the necessary equipment to enable persons with disabilities to attain and maintain maximum independence, including full physical and mental capacity; and allowing support persons (personal assistants, parents or any other person of their choice) to accompany them and assist during lessons. The Special Rapporteur also argued that the availability of supports should be considered in the light of the larger pool of resources available in the education, social protection and health systems and not limited to resources available at the educational institution in question.", "94. In its submissions, Amnesty International referred to the standards developed by other jurisdictions in the field of inclusive education. The United States Supreme Court, in Endrew F. v. Douglas County School District RE-1, had ruled that simply passing a child with disabilities from grade level to grade level with no actual educational benefit was not sufficient under the relevant legislation. In Hurst v. State of Queensland, the Federal Court of Australia had found that teaching English and English sign language to a child with a hearing impairment whose first language was Auslan (Australian sign language) did not afford the child adequate conditions to enable her to learn to her full potential, and considered that the child in question would suffer serious disadvantage if she was required to simply cope with the conditions imposed. Lastly, the House of Lords decided in Regina v. East Sussex County Council Ex Parte Tandy, HL 21 May 1998, that when assessing the appropriate educational needs for a student with disabilities, the local authority must not consider its financial constraints as a reason not to provide appropriate education.", "95. The RREI Latinoamerica presented case-law from the Inter- American Court of Human Rights according to which disability was to be assessed under a social model, as required by the CRPD, and not under a medical model. In particular, in the case of Sebastián Furlán v. Argentina the Inter-American Court had stated that if the social model for disability was taken into account, disability was not only defined by the presence of a physical, mental, intellectual or sensory impairment, but was related to the barriers or limitations that existed socially for persons to exercise their rights effectively. Furthermore, in 2016 the Inter-American Court of Human Rights had ordered a precautionary measure in favour of a twelve-year-old girl with disabilities, ordering Argentina to ensure and protect her right to life, physical integrity and health, as it found that on several occasions the medical treatments that the child needed in order to improve her health and attend school had been suspended (Precautionary measure no. 376/15 (Resolution 2016), published on 7 July 2016).", "2. The Court ’ s assessment", "(a) General principles", "96. The Court has held that the notion of personal autonomy is an important principle underlying the interpretation of the guarantees of Article 8 (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III, and Di Trizio v. Switzerland, no. 7186/09, § 63, 2 February 2016).", "97. The Court further observes that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. In addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private and family life even in the sphere of the relations of individuals between themselves. The boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance to be struck between the competing interests (see Dickson v. the United Kingdom [GC], no. 44362/04, § 70, ECHR 2007 ‑ V).", "98. The Court also makes reference to the general principles concerning the right to education, as recently reiterated in Çam v. Turkey (no. 51500/08, § 52-53, 23 February 2016, with further references). Furthermore, it has already held that, in order to comply with the requirements of Article 14 of the Convention, States have an obligation to make reasonable accommodation in the case of people with disabilities (see Çam, cited above, §§ 54 and 65, with further references).", "(b) Application of those principles to the present case", "99. The Court has already had the opportunity to examine the system put in place by the respondent State to allow people with disabilities to complain about alleged infringements of their rights (see Gherghina, decision cited above, §§ 94-115, and Popa v. Romania ( dec. ), no. 4238/09, §§ 53-56, 14 November 2017). It concluded that an action lodged by the aggrieved party before the domestic courts represented an effective remedy which needed to be exhausted. The Court sees no reason to depart from this finding in the present case. More particularly, it notes that the domestic courts examined the applicants ’ complaints exhaustively and gave judgment on all counts, allowing most of their claims and ordering the authorities to act upon them (see paragraphs 56 to 61 above).", "100. The Court acknowledges the complexity of the matter brought before the domestic courts (see, mutatis mutandis, Popa, cited above, §§ 8 and 35). It also notes that the applicants lodged their main action with the wrong division of the County Court and then also modified it during the course of the proceedings (see paragraph 57 above). In this context the length of the proceedings, which started on 24 April 2014 (see paragraph 56 above) and ended almost four years later, on 7 February 2018 (see paragraph 61 above), cannot be attributed solely to the authorities, who, moreover, did not remain passive but accompanied the applicants to the best of their abilities. In particular, the courts gave interim instructions to the authorities and insisted on their full implementation (see paragraphs 63 to 68 above), and the authorities provided the first applicant with support and assistance in school (see, for instance, paragraphs 39 and 46 above), or made efforts to find and retain a suitable personal assistant for him (see, in particular, paragraphs 53 and 54 above).", "101. The Court notes that the authorities recommended that the first applicant attend mainstream schools throughout his education (see paragraph 13 above). This assessment is in compliance with the international standards in the field, which recommend inclusive education for children with disabilities (see Çam, cited above, § 64, and Enver Şahin v. Turkey, no. 23065/12, § 62, 30 January 2018).", "102. The third-party observations confirm the difficulties encountered by children with a disability owing to a lack of infrastructure and of reasonable accommodation (see, in particular, paragraphs 90 and 93 above). The Government also admitted in their observations that there were delays in ensuring the accessibility of school buildings (see paragraph 85 above). On this point the Court reiterates that inclusive education is widely accepted to be the most appropriate means of guaranteeing inclusion and non - discrimination in the field of education (see Çam, cited above, § 64, and Enver Şahin, cited above, § 62). Therefore, in the absence of accessibility of the physical environment prior to the integration of children with a disability in mainstream schools, the authorities have an obligation to provide reasonable accommodation from the moment it is requested (see paragraphs 93 and 98 above). However, this obligation may not impose a disproportionate or undue burden on the authorities (see Çam, cited above, § 65). Moreover, it is not for the Court to define the “reasonable accommodation” – which can take on different material and non-material forms – to be implemented in the educational sphere in response to the educational needs of persons with disabilities (see Enver Şahin, cited above, § 61).", "103. In this context, the Court acknowledges, in the educational sphere, that reasonable accommodation may take a variety of forms, whether physical or non-physical, educational or organisational, in terms of the architectural accessibility of school buildings, teacher training, curricular adaptation or appropriate facilities (see Çam, cited above, § 66). These adjustments can serve as a temporary solution for an individual when accessibility is lacking.", "104. That being said, the Court will now examine whether the domestic authorities had recourse to alternative solutions in order to accommodate the first applicant.", "105. At the outset, the Court finds it important that the first applicant was never completely deprived of education as he continued to attend school, to be graded for his work, and to advance through the school curriculum (see, mutatis mutandis, Şanlısoy v. Turkey ( dec. ), no. 77023/12, § 60, 8 November 2016).", "106. The Court further observes that the authorities were aware of their obligation to ensure access to education for the first applicant, an obligation which stemmed both from the national law and from the State ’ s international commitments (see paragraphs 71 and 72 above). Moreover, this obligation was consistently reiterated by the domestic courts in the proceedings brought by the applicants (see paragraphs 61 and 63 above). On this point, the Court notes that reasonable accommodation was made for the first applicant ’ s benefit, as highlighted by the Government in their submissions (see paragraphs 39 and 85 above). In particular, when alerted by the applicants to the lack of accessibility and of reasonable accommodation in school (see paragraph 56 above), the domestic courts ordered the local authorities to take concrete measures in the first applicant ’ s favour (see paragraph 58 above). The courts also gave interim orders compelling the authorities to make immediate accommodation for the first applicant in school (see paragraph 63 above). The Court observes that the domestic courts reacted quickly and adequately to changes in the first applicant ’ s situation and renewed their instructions to the administrative authorities whenever they found that the measures taken by those authorities were insufficient (see paragraph 68 above).", "107. Furthermore, the Court acknowledges the difficulties encountered by the State in finding a suitable personal assistant for the first applicant (see paragraphs 52, 53 and 86 above). It cannot ignore the fact that some of these difficulties were created by the applicants themselves, and in particular by the second applicant, who, by insisting that the personal assistants perform tasks incompatible with their job description, jeopardised the relationship between the parties concerned (see paragraphs 52 and 53 above). It also notes that the authorities renewed their efforts to find a suitable personal assistant (see paragraph 54 above), thus striving to comply with the domestic courts ’ findings in that regard (see paragraphs 50, 58 (d) and 66 above).", "108. The Court notes that the second applicant also rendered futile other measures put in place by the authorities in school, in particular, by refusing the speech therapy (see paragraphs 46 and 47 above), the assistance by a support teacher (see paragraphs 37 -39 above) and the physiotherapy and psychological counselling (see respectively paragraphs 44 and 45 above) organised in school for the first applicant, as well as the installation of a stairlift (see paragraph 33 above).", "109. The Court emphasises that it is not its task to define the resources to be implemented in order to meet the educational needs of children with disabilities. The national authorities, by reason of their direct and continuous contact with the vital forces of their countries, are in principle better placed than an international court to evaluate local needs and conditions in this regard (see Çam, cited above, § 66). It is, however, important that those authorities take great care with the choices they make in this sphere, in view of the impact of those choices on persons with disabilities, whose particular vulnerability cannot be ignored. Bearing this in mind, the Court notes that, in the present case, the authorities did not turn a blind eye to the first applicant ’ s needs, but allocated resources to the schools attended by him in order to help accommodate his special requirements. It notes, for instance, that various adaptations were made to render his physical environment more accessible (see paragraphs 16, 25 - 26 and 30 - 33 above) and that support teachers and various therapists were assigned to him (see, for instance, paragraphs 37 -39, 42, 45 and 46 above).", "110. Therefore, in the light of all the material before it, the Court is satisfied that the domestic authorities complied with their obligation to provide reasonable accommodation “not imposing a disproportionate or undue burden” and, within their margin of appreciation, to allocate resources in order to meet the educational needs of children with disabilities.", "111. There has accordingly been no violation of Article 8 of the Convention or of Article 2 of Protocol No. 1 to the Convention taken alone or together with 14 of the Convention. In view of the above, it is not necessary to consider separately the Government ’ s preliminary objection (see paragraphs 75 and 78 above).", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "112. The applicants complained about the second applicant ’ s removal by the police from the school premises and the impact this incident had on the first applicant (see paragraph 69 above). They relied on Articles 3 and 8, which read as follows:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "113. The applicants argued that the police intervention had been neither proportionate nor gradual, in contradiction with the domestic requirements on the use of force by the police. The police officers treated the second applicant as if she had been a complete stranger trespassing on school property, thus ignoring the fact that, at that point, she had been providing personal assistance to her son on an almost daily basis for more than six years. They averred that the disproportionate character of the police intervention was emphasised by the gravity of the injuries caused to the second applicant, the relatively insignificant offence for which she had been sanctioned and the minor sanction applied.", "114. The Government contended that the investigation had been effective and prompt.", "115. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. In particular, the applicants failed to bring any evidence that the use of force by the police officers when removing the second applicant from the school premises had been disproportionate, or that the first applicant had been left without supervision in school during his mother ’ s absence. Moreover, the applicants failed to pursue their domestic complaints within the time-limits set by law, without bringing any evidence that the mechanism placed at their disposal would be ineffective.", "116. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention." ]

[ "2. The applicant was born in 2004 and lives in Eboli. She was represented before the Court by Mr A. L. (her father) and Ms M.E. D’Amico, a lawyer practising in Milan.", "3. The Italian Government (“the Government”) were represented by their former Agent, Mrs Spatafora, and her former coagent Mrs M. E. D’Amico, a lawyer practising in Milan.", "4. The applicant was diagnosed with non-verbal autism.", "5. On account of her disability, when she started nursery school in 2007 she received learning support for 24 hours a week from a support teacher with specialised assistance, in accordance with section 13 of Law no. 104 of 1992.", "6. The specialised assistance service is aimed at helping children with disabilities to develop their autonomy and personal communication skills and to improve their learning processes, their relationships with others and their integration at school, so that they do not become marginalised. Thus the specialist assistant was responsible for improving the applicant’s integration and socialisation at school and in the classroom, as well as her autonomy (see paragraph 18 below).", "7. During her first year at primary school (2010-2011) the applicant was no longer in receipt of such specialist assistance. At the end of the school year it was decided that she should repeat the preparatory class (“CP”).", "8. On 10 August 2011, in advance of the new school year, the applicant’s parents requested that the Eboli municipality ensure that their daughter received the specialist assistance provided for in section 13 of Law no. 104 of 1992. Having received no reply from the municipal authorities, they reiterated their request on 30 January 2012.", "9. On 21 February 2012, in view of the authorities’ silence the applicant’s parents requested access to their daughter’s file.", "10. From January 2012 they paid for private specialist assistance so that their daughter could nevertheless receive educational support.", "11. On 19 March 2012 the authorities informed them that it would be difficult to organise specialist public assistance for the applicant again since it had only been scheduled up to the end of 2011, but that there was nonetheless a chance that she might shortly be in receipt of such assistance – this never transpired.", "12. The Government affirmed that the applicant had received support defrayed by the school. In that regard, they failed to present any document signed by the headmaster stating that since the applicant had not been in receipt of specialist educational facilities in the school years 2010-2011 and 2011-2012, the school had provided her with basic assistance and physical aid and had tasked employees to provide material back-up to teaching staff. In support of those assertions the Government enclosed an invoice for 476.56 euros (EUR).", "13. The applicant observed that that the documents submitted by the Government failed to establish the veracity of its submissions. She pointed out, first of all, that the documents did not explain the type of assistance provided or the activities conducted, or whether the persons concerned had been competent and qualified to take care of an autistic child. She further submitted that the amount of the expenditure certified (EUR 476.56 for six employees, coming to an average outlay of EUR 80 per employee per year) showed that the support in question could certainly not have been considered as permanent.", "14. On 15 May 2012 the applicant’s parents, acting in her name and on her behalf, applied to the Administrative Court (the “TAR”) of the Region of Campania. Complaining of the fact that their daughter had been unable to receive the specialist assistance to which she had been entitled under section 13 of Law no. 104 of 1992, they sought a finding of failure to respect that right and asked the court to order the authorities to pay compensation to their daughter.", "15. By judgment of 27 November 2012 the TAR dismissed that application. It held that the municipality taken all the necessary action in time, and pointed out that the region had had to cope with a cut in resources allocated by the State.", "16. The applicant’s parents appealed to the State Council against that judgment. By judgment deposited with the registry on 26 May 2015, the latter dismissed their appeal. It held that the claim for damages had been vague and had failed to demonstrate a causal link between the lack of specialist assistance and the alleged damage. It also ruled that the region’s liability could not be incurred because it had had to cope with a cut in resources allocated by the State. It considered that there had been no reason to reimburse the applicant’s parents for the costs incurred in paying for private specialist assistance, since no negligence had been attributable to the authorities. Finally, as regards the request that the Eboli municipality be ordered to provide the assistance provided for by law, the State Council pointed out that the judge could only have issued an order to the authorities if the case had fallen under the exclusive jurisdiction of the administrative court, which had not been the situation in the present case." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "RELEVANT DOMESTIC LAW AND PRATIC UEDomestic legal system", "Domestic legal system", "Domestic legal system", "17. Article 38 of the Constitution provides that persons with disabilities have a right to education and vocational training.", "18. Framework Law no. 104 of 5 February 1992 on assistance for, the social integration of, and the protection of the rights of persons with disabilities (“Law no. 104 of 1992”) includes the following provisions:", "Article 3 – Entitled persons", "“1. ’Person with a disability’ means anyone presenting a physical, mental or sensorial impairment, whether stabilised or evolutive, which causes difficulties in learning, relationships with others occupational integration and leads to a social handicap or marginalisation.", "...”", "Article 8 – Social integration", "“The social inclusion and integration of the person with a disability shall be ensured by means of:", "...", "d) measures securing the disabled person’s rights to information and to education, particularly as regards educational facilities and technologies, programmes, specialist languages, evaluation tests and the availability of specially qualified personnel, including both teachers and non-teaching staff.", "...”", "Article 12 – Right to education", "“...", "2. The right of persons with disabilities to education shall be guaranteed in all sections of nursery schools, in ordinary classes of schools at all levels and in universities and other institutes of higher education.", "3. Integration at school is aimed at developing the disabled person’s potential in the fields of learning, communication, relationships with others and socialisation.", "4. The exercise of the right to education must not be impeded by learning difficulties or other difficulties stemming from a disability.", "5 Where it is noted that a child, a pupil or a student suffers from a disability with the meaning of Article 3 above, an operational profile shall be drawn up in accordance with the criteria of the bio-psycho-social model of the International Classification of Functioning, Disability and Health (ICFDH) adopted by the World Health Organisation (WHO), for the purposes of designing the individual project laid down in section 14 of Law no. 328 of 8 November 2000 and drawing up a personalised educational plan.", "...”", "Article 13 – Integration at school", "“1. The educational integration of persons with disabilities in [nursery school] sections and the ordinary classes of schools at all levels and in universities and other institutes of higher education is, in particular, without prejudice to the provisions of Law nos. 360 of 11 May 1976 and 517 of 4 August 1977 and their subsequent amendments, by the following means:", "a) Ensuring coordination between school services, health, social, cultural, recreational and sports services and the other local and regional services administered by public or private agencies. To that end the local authorities, the school bodies and the local health units shall, in the framework of their respective competences, conclude the programme agreements set out in section 27 of Law no. 142 of 8 June 1990. Those agreements, the conclusion of which is governed by the guidelines laid down within three months of the entry into force of the present Law by decision of the Minister of Education in agreement with the Minister of Social Affairs and the Minister for Health, are aimed at drawing up, implementing and jointly reviewing personalised educational, rehabilitation and socialisation projects, as well as coordinating school and out-of- school activities. They shall also lay down the criteria to be fulfilled by the public and private agencies in question in order to participate in the aforementioned coordinated cooperative activities.", "b) Supplying schools and universities with technical facilities, educational material and all requisite forms of technical assistance, independently from any general and functional assistance possibly guaranteed at the individual level for the purposes of the effective exercise of the right to education, in particular in the framework of agreements concluded with specialist centres with a view to provision by the latter of educational consultancy and special educational materials produced or adapted by them.", "...", "2. For the purposes laid down in paragraph 1, the local authorities and local health units may also decide to adapt the organisation and functioning of day nurseries to the needs of children with disabilities in order to launch the rehabilitation, socialisation and integration process at as early an age as possible, and to assign teaching staff, operators and specialist assistants to them.", "3. Without prejudice to the obligation on local authorities, pursuant to Presidential Decree No. 616 of 24 July 1977 and subsequent amendments thereto, to provide autonomy and personal communication assistance [1] for pupils with physical or sensory disabilities, access by such pupils to support activities is guaranteed in schools at all levels by assigning specialist teachers to the tasks in question.", "4. Support teacher posts in secondary education shall be apportioned among staff who are serving on the date of entry into force of the presented law such as to ensure a ratio at least equal to that laid down for the other educational levels, within the limits of available financial resources as set out in section 42 (6) (h).", "...", "6. The support teacher [2] shares responsibility for the pupils with the teacher of the section or class in which he or she is operating, and therefore helps to develop educational activities and to devise and supervise activities related to the competence of inter-class advisors, class advisers and teaching teams.", "...”", "Relevant case-law of the Court of Cassation", "19. The combined divisions of the Court of Cassation has delivered the following judgments in this sphere, the relevant sections of which are reproduced below.", "Judgment no. 25011 of 25 November 2014:", "“As regards support for pupils with disabilities, the personalised educational plan as defined in section 12 of Law no. 104 of 5 February 1992 requires the school authorities to guarantee the provision of the scheduled number of hours of support, allowing them no discretion to apply any reduced version of the measure on grounds of insufficient resources; this also applies to nursery schools even though they do not come under the compulsory schooling requirement. Thus a failure on the part of the authorities to ensure the provision of the support laid down in the plan restricts the disabled person’s right to equal opportunities in access to school services, and where such restriction is not accompanied by a corresponding cut in the educational facilities provided for non-disabled pupils, that restriction will amount to indirect discrimination, a matter within the jurisdiction of the civil courts”", "Judgment no. 25101 of 8 October 2019:", "“Where, with the help of the teachers in the host school and public health staff, a personalised educational plan has been drawn up setting the number of hours of school support required for a pupil with a very severe disability, the school authorities have no discretionary power to revise or cancel, unilaterally, on the grounds of insufficient resources, the additional support measures set out in that plan. They are therefore required to appoint specialist teaching staff to support the pupil in question, if necessary by creating a support post in derogation from the standard pupil-teacher ratio. Where it has been established that the authorities have completely or partly failed in their duty to provide the necessary services, the disabled person’s fundamental right will have been restricted, and if the educational provision for [non-disabled] pupils has not been reduced to an equivalent extent, the situation will amount to indirect discrimination as prohibited under section 2 of Law no. 67 of 2006. Indeed, indirect discrimination can also stem from a failure to act on the part of the public authorities responsible for organising schooling to the detriment of pupils with disabilities as compared with other pupils. The civil courts therefore hold jurisdiction for such matters, and complainants do not have to explicitly argue in their applications for protection that the authorities in question engaged in discriminatory behaviour”.", "Judgment no. 9966 of 20 April 2017, where the Court of Cassation reaffirmed the conclusion of judgment no. 25011 of 25 November 2014, adding the following:", "“...private schools must provide disabled pupils with the same support services as those provided by state schools. State subsidies only partly cover the cost of such services. Thus, indirect discrimination attributable to the State authorities consists in a failure to honour the obligation to provide the aforementioned subsidies leading to a reduction in educational and social service provision by private schools, and not a refusal to cover the total cost of such service, which is not incumbent on the authorities.”", "INTERNATIONAL LAW AND PRACTICE", "20. The international materials relevant to the present case are described in Çam v. Turkey (no. 51500/08, §§ 37 ‑ 38, 23 February 2016; see additionally Zehnalová and Zehnal v. the Czech Republic (dec.), no. 38621/97, ECHR 2002 ‑ V; Mółka v. Poland (dec.), no. 56550/00, ECHR 2006 ‑ IV; and Farcaş v. Romania (dec.), no. 32596/04, §§ 68 ‑ 70, 14 September 2010).", "International Covenant on Economic, Social and Cultural Rights", "21. Article 13 of the International Covenant on Economic, Social and Cultural Rights provides:", "“The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.”", "Article 2 § 2 also provides:", "“... the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”", "22. In General Comment no. 5: Persons with Disabilities, E/1995/22 of 9 December 1994, the UN Committee on Economic, Social and Cultural Rights explicitly stated the following:", "“3. The obligation to eliminate discrimination on the grounds of disability", "15. Both de jure and de facto discrimination against persons with disabilities have a long history and take various forms. They range from invidious discrimination, such as the denial of educational opportunities, to more ‘subtle’ forms of discrimination such as segregation and isolation achieved through the imposition of physical and social barriers. For the purposes of the Covenant, ‘disability-based discrimination’ may be defined as including any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights. Through neglect, ignorance, prejudice and false assumptions, as well as through exclusion, distinction or separation, persons with disabilities have very often been prevented from exercising their economic, social or cultural rights on an equal basis with persons without disabilities. The effects of disability-based discrimination have been particularly severe in the fields of education, employment, housing, transport, cultural life, and access to public places and services.”", "23. The UN Committee on Economic, Social and Cultural Rights reaffirmed its General Comment no. 5 in its General Comment no. 20: Non-discrimination in economic, social and cultural rights, E/C.12/GC/20 of 2 July 2009, as follows:", "“B. Other status", "24. The nature of discrimination varies according to context and evolves over time. A flexible approach to the ground of ‘other status’ is thus needed in order to capture other forms of differential treatment that cannot be reasonably and objectively justified and are of a comparable nature to the expressly recognized grounds in article 2, paragraph 2. These additional grounds are commonly recognized when they reflect the experience of social groups that are vulnerable and have suffered and continue to suffer marginalization. ...", "Disability", "25. In its general comment No. 5, the Committee defined discrimination against persons with disabilities as ‘any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights’. The denial of reasonable accommodation should be included in national legislation as a prohibited form of discrimination on the basis of disability. States parties should address discrimination, such as prohibitions on the right to education, and denial of reasonable accommodation in public places such as public health facilities and the workplace, as well as in private places, e.g. as long as spaces are designed and built in ways that make them inaccessible to wheelchairs, such users will be effectively denied their right to work.”", "UN Convention on the Rights of Persons with Disabilities", "26. Regard should also be had to the following passages from the Convention on the Rights of Persons with Disabilities (“CRPD”), adopted on le 13 December 2006 by the United Nations General Assembly (United Nations Treaty Series, Vol. 2515, p. 3), which Italy signed on 30 March 2007 and ratified on 15 May 2009.", "Article 2 – Definitions", "“For the purposes of the present Convention:", "‘Communication’ includes languages, display of text, Braille, tactile communication, large print, accessible multimedia as well as written, audio, plain-language, human-reader and augmentative and alternative modes, means and formats of communication, including accessible information and communication technology;", "‘Language’ includes spoken and signed languages and other forms of non-spoken languages;", "‘Discrimination on the basis of disability’ means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation;", "‘Reasonable accommodation’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;", "...”", "Article 3 – General principles", "“The principles of the present Convention shall be:", "1. Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;", "...”", "Article 24 – Éducation", "“1. States Parties recognize the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education system at all levels and lifelong learning directed to:", "a. The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity;", "b. The development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential;", "c. Enabling persons with disabilities to participate effectively in a free society.", "2. In realizing this right, States Parties shall ensure that:", "a) Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability;", "b) Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live;", "c) Reasonable accommodation of the individual’s requirements is provided;", "d) Persons with disabilities receive the support required, within the general education system, to facilitate their effective education;", "e) Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.", "3. States Parties shall enable persons with disabilities to learn life and social development skills to facilitate their full and equal participation in education and as members of the community. To this end, States Parties shall take appropriate measures, including:", "a) Facilitating the learning of Braille, alternative script, augmentative and alternative modes, means and formats of communication and orientation and mobility skills, and facilitating peer support and mentoring;", "...”", "The Council of Europe", "27. The European Social Charter (Revised) (ETS no. 163), which opened for signature on 3 May 1996 and was ratified by Italy on 5 July 1999, includes the following provision:", "Article 15 – The right of persons with disabilities to independence, social integration", "and participation in the life of the community", "“With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular:", "1. to take the necessary measures to provide persons with disabilities with guidance, education and vocational training in the framework of general schemes wherever possible or, where this is not possible, through specialised bodies, public or private;", "...", "3. to promote their full social integration and participation in the life of the community in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure.”", "Part VArticle E – Non-discrimination", "“The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.”", "28. Recommendation No. R (92) 6 of the Committee of Ministers on a coherent policy for people with disabilities, adopted on 9 April 1992, invites member States to “guarantee the right of people with disabilities to an independent life and full integration into society” and to “recognise society’s duty to make this possible”, in order to ensure that people with disabilities have real “equality of opportunity” with other people. Public authority action must be aimed at ensuring that people with disabilities can “have as much mobility as possible, and access to buildings and means of transport”, “play a full role in society” and “take part in economic, social, leisure, recreational and cultural activities”.", "29. Recommendation Rec(2006)5 of the Committee of Ministers to member States on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006-2015, adopted on 5 April 2006, lays down several action lines, the fourth of which reads as follows:", "Action line no. 4: Education", "“3.4.1. Introduction", "Education is a basic factor in ensuring social inclusion and independence for all people, including those with disabilities. Social influences, for example from families and friends, also contribute, but for the purposes of this action line education shall cover all stages of life, including pre-school, primary, secondary, high school education and professional training, as well as life-long learning. The creation of opportunities for disabled people to participate in mainstream education is not only important for disabled people but will also benefit non-disabled people’s understanding of human diversity. Most education systems provide access to mainstream education and specialised educational structures for disabled people, as appropriate. Mainstream and specialised structures should be encouraged to work together to support disabled people in their local communities, but this should be consistent with the goal of full inclusion.", "3.4.2. Objectives", "i. To ensure that all persons, irrespective of the nature and degree of their impairment, have equal access to education, and develop their personality, talents, creativity and their intellectual and physical abilities to their full potential;", "ii. to ensure that disabled people have the opportunity to seek a place in mainstream education by encouraging relevant authorities to develop educational provision to meet the needs of their disabled population;", "iii. to support and promote lifelong learning for disabled people of all ages and facilitate efficient and effective transitions between each phase of their education and between education and employment;", "iv. to foster at all levels of the educational system, including in all children from an early age, an attitude of respect for the rights of people with disabilities.", "3.4.3. Specific actions by member states", "i. To promote legislation, policies and planning to prevent discrimination against children, young people and adults with disabilities in the access to all phases of their education from early years through to adult provision. In doing so, consult with disabled users, parents, and carers, voluntary organisations, and other relevant professional bodies, if appropriate;", "ii. to encourage and support the development of a unified education system, including mainstream and specialised educational provision, which promotes the sharing of expertise and greater inclusion of disabled children, young people and adults in the community;", "iii. to enable the early appropriate assessment of the special educational needs of disabled children, young people and adults to inform their educational provision and planning;", "iv. to monitor the implementation of individual education plans and facilitate a co-ordinated approach to education provision throughout and towards employment;", "v. to ensure that people with disabilities, including children, receive the support required, within the mainstream education system, to facilitate their effective education. In exceptional circumstances, where their professionally-assessed special education needs are not met within the mainstream education system, member states will ensure that effective alternative support measures are provided consistent with the goal of full inclusion. All special and mainstream provisions should encourage the transition to mainstream education and reflect the same goals and standards;", "vi. to encourage the development of initial and ongoing training for all professionals and staff working across all phases of education to incorporate disability awareness and the use of appropriate educational techniques and materials to support disabled pupils and students where appropriate;", "vii. to ensure that all educational material and schemes provided through the general educational system are accessible to persons with disabilities;", "viii. to include, in school civic education syllabuses, subjects relating to people with disabilities as people who have the same rights as all other citizens;", "ix. to ensure that disability awareness is a key part of education programmes in mainstream schools and institutions;", "x. to take steps to make places of education and training accessible for persons with disabilities, including by the provision of personal support and of reasonable adjustments (including equipment) to meet their needs;", "xi. to ensure that parents of disabled children are active partners in the process of the development of the individualised education plans of their children;", "xii. to ensure access to non-formal education allowing disabled youth to develop needed skills otherwise unattainable through formal education;", "...”", "30. For its part, the Parliamentary Assembly of the Council of Europe addressed these matters in its Recommendation 1185 (1992) on rehabilitation policies for the disabled, adopted on 7 May 1992. This text emphasises that “our societies have the duty to tailor their norms to the specific needs of disabled persons in order to ensure that they can live autonomous lives”. To that end, the governments and competent authorities are called upon “to seek and encourage effective and active participation by disable people in community and social life” and therefore to ensure “the removal of architectural obstacles”.", "31. On 30 January 2015 the Assembly adopted Recommendation 2064 (2015), titled “Equality and inclusion for people with disabilities”, which comprises the following passages:", "“1. The Parliamentary Assembly refers to its Resolution 2039 (2015) on equality and inclusion for people with disabilities.", "2. The Assembly welcomes the contribution of the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006-2015 to the development of national policies which take account of the rights of people with disabilities. The action plan has also helped to make people see disability as a human rights issue.", "3. The Assembly notes, however, that the full enjoyment of the rights of people with disabilities has by no means been achieved in Council of Europe member States. The principles set out in international instruments are not reflected in the everyday reality experienced by people with disabilities. Resolute action by the Council of Europe and the member States in the area of disability is therefore necessary.", "4. The Assembly therefore recommends that the Committee of Ministers:", "4.1. evaluate the implementation of the Action Plan for people with disabilities 2006-2015 and draw lessons from the ten-year period during which it was implemented in the member States;", "4.2. define on this basis a new road map for the period from 2016 to 2020, in close consultation with the organisations representing people with disabilities;", "4.3. focus this new road map on priority issues such as the legal capacity of people with disabilities and the measures aimed at ensuring their dignity and full inclusion in society;", "4.4. invite the Council of Europe Development Bank to make compliance with accessibility requirements a condition for granting loans for construction and renovation projects and not to finance the construction of large institutions for people with disabilities;", "4.5. ensure that disability is taken into account in the specific activities conducted by the Council of Europe, in particular in Council of Europe activities and campaigns to combat violence and hate speech.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH Article 2 of protocol no. 1", "32. The applicant complained of an infringement of her right to education. In that connection it pointed out that for two whole school years she had been unable to receive the specialist assistance prescribed by law. She also considered that the State had failed in its positive obligation to ensure equal opportunities for persons with disabilities. She relied on Article 2 of Protocol No. 1, which reads as follows:", "“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”", "33. The applicant also complained that she had sustained discriminatory treatment on account of her disability, in breach of Article 14 of the Convention. The provision reads as follows:", "“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Subject matter of the dispute", "34. The Court considers that the core of the applicant’s complaint is the allegation that she sustained discriminatory treatment. She therefore considers that the case should primarily be examined under Article 14 of the Convention read in conjunction with Article 2 of Protocol No. 1 (see, for a similar approach, Oršuš and Others v. Croatia [GC], no. 15766/03, §§ 143 ‑ 145, ECHR 2010, and Ponomaryovi v. Bulgaria, no. 5335/05, § 45, ECHR 2011; see also Enver Şahin v. Turkey, no. 23065/12, § 32, 30 January 2018), it being understood that the scope of Article 14 of the Convention also covers the prohibition of discrimination based on disability (see, for example, Glor v. Switzerland, no. 13444/04, § 80, ECHR 2009), but also the requirement for States to ensure “reasonable accommodation” that would help correct factual inequalities which are unjustified and therefore amount to discrimination.", "Admissibility", "35. The Government pleaded that the application had been lodged out of time. They submitted in particular that the final domestic decision had been given on 25 May 2015 and that the date stamped on the application form was 30 November 2015.", "36. The applicant contested that argument. She submitted that she had sent in her application on 24 November 2015, and that she had therefore applied to the Court on that date. In support of her submissions she presented copies of documents certifying that the application had been sent off on 24 November and, according to the acknowledgement of receipt of the registered letter, had arrived at the Court Registry on 27 November.", "37. The Court reiterates that the date on which the six-month time-limit laid down in Article 35 § 1 of the Convention starts running ( dies a quo ) is the date on which the final domestic decision is served on the applicant (see, among many other authorities, Sabri Güneş v. Turkey [GC], no. 27396/06, § 60, 29 June 2012), and that, pursuant to Rule 47 § 6 (a) of the Rules of Court, the date on which the application is lodged for the purposes of calculating the six-month time-limit ( dies ad quem ) is the date when the form was dispatched, as shown by the postmark, and not the date stamped by the Registry on the application acknowledging receipt (see Vasiliauskas v. Lithuania [GC], no. 35343/05, § 117, ECHR 2015).", "38. In the instant case, the Court observes that the final domestic decision was the judgment of the Consiglio di Stato. It further notes that the envelope containing the application was dispatched on 24 November 2015, according to the Italian postmark. The Court concludes therefore that the application was indeed lodged within six months of the final domestic decision and that, consequently, it was not submitted out of time.", "39. It therefore rejects the Government’s objection.", "40. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicant", "41. The applicant submitted that for two school years she had not been in receipt of the specialist assistance prescribed by Law no. 104 of 1992, despite her parents’ many requests. She added that that two-year period, which she considered very lengthy, had coincided with her arrival at primary school, thus jeopardising her chances of progressing and integrating into the school system.", "42. She further pleaded that the cost of providing the specialist educational services which she had needed would have had a very minimal impact on the municipal council’s budget. She argued that in failing to allocate resources to finance specialist educational services, the local authorities had chosen not to provide school support for children with disabilities.", "43. Relying on the Court’s case-law (see Velyo Velev v. Bulgaria, no. 16032/07, ECHR 2014, and Glor, cited above), the applicant submitted that the safeguards on the right to education could not be impeded or restricted for budgetary reasons. She added that in the present case, the municipal council had had sufficient resources to introduce the measures to which she had been entitled. She also argued that it transpired from the Court’s case-law that the margin of appreciation which the Contracting States enjoyed in balancing the right to education with other interests, in particular those of a financial nature, was considerably reduced, especially in the case of persons with disabilities (see Glor, cited above, § 84).", "44. Finally, she submitted that budgetary considerations could not justify a violation of the fundamental right to education and that, therefore, the Government had put forward no valid argument in support of the authorities’ failure to provide her with the assistance to which she had been entitled under national law, the Italian Constitution and the European Convention.", "45. In conclusion, the applicant considered that the present case was essentially characterised by a systematic violation of her right to education.", "(b) The Government", "46. The Government explained that the reason why the applicant had, in the school years 2010/2011 and 2011/2012, been unable to benefit from all the types of support provided for in section 13 of Law no. 104 of 1992 related to the budgetary cuts laid down in the 2011 Finance Law (Law no. 220 of 13 December 2010), which had explicitly earmarked a specific sum to finance the provision of home help to persons suffering from amyotrophic lateral sclerosis (“ALS”). They pointed out that the amount allocated to the Campania Region (EUR 9,070,000 ) had proved insufficient to cover all the types of school support once the budget earmarked for ALS sufferers had been deducted. They submitted that that illness was much more serious than that suffered by the applicant.", "47. Under those conditions, the Government submitted that the action taken at the local level had been consistent with what could reasonably have been expected of the authorities, having regard to their limited resources. They argued that several measures had been adopted to help the applicant to overcome the difficulties related to her disability and to facilitate her educational integration, submitting that a lack of resources at the regional level had led to a suspension, for two school years, of only one of those measures, which was insufficient to amount to a major infringement of the applicant’s right to school support. Underlining, in particular, that the school attended by the applicant had used some of its own resources to provided her with assistance, the Government submitted that in view of the need to prioritise the needs of persons suffering from ALS, the situation had amounted to a violation neither of Article 14 in conjunction with Article 2 of Protocol No. 1 nor, a fortiori, of Article 8 of the Convention.", "48. Lastly, the Government argued that while the Court had on many occasions found a violation of the Convention on account of mismanagement or delayed allocation of funds, it had never done so in cases of non-existent funds. Furthermore, even though the region had faced a lack of resources for two successive school years, the school had managed to cope with the situation and had succeeded, under its own steam/by means of its own resources, to provide support to the applicant, who had consistently received the type of support to which she had been entitled for twenty-four hours per week.", "The Court’s assessment", "(a) General principles", "49. The Court reiterates that it has already had occasion to point out that in a democratic society, the right to education is indispensable to the furtherance of human rights and plays a fundamental role (see Velyo Velev, cited above, § 33), and that education is one of the most important public services in a modern State. However, it also acknowledges that education is an activity that is complex to organise and expensive to run, whereas the resources that the authorities can devote to it are necessarily finite. It is also true that in deciding how to regulate access to education, a State must strike a balance between, on the one hand, the educational needs of those under its jurisdiction and, on the other, its limited capacity to accommodate them. However, the Court cannot overlook the fact that, unlike some other public services, education is a right that enjoys direct protection under the Convention (ibid.).", "50. The Court reaffirms that, in interpreting and applying Article 2 of Protocol No. 1, it must have regard to the fact that the Convention is to be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005 ‑ X, and Austin and Others v. the United Kingdom [GC], nos. 39692/09 and 2 others, § 54, ECHR 2012). Accordingly, Article 2 of Protocol No. 1 must be interpreted in the light, in particular, of Article 8 of the Convention, which safeguards everyone’s right to respect for his or her private life» (see Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, §§ 136 and 143, ECHR 2012).", "51. The Court reiterates that in interpreting and applying Article 2 of Protocol No. 1, account must also be taken of any relevant rules and principles of international law applicable in relations between the Contracting Parties and the Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part (ibid., § 136). Regard must therefore be had in the instant case to the provisions relating to the right to education set out in instruments such as the European Social Charter (Revised) or the UN Convention on the Rights of Persons with Disabilities (see Timishev v. Russia, nos. 55762/00 and 55974/00, § 64, ECHR 2005 ‑ XII; Catan and Others, cited above, § 136; and Çam, cited above, § 53).", "52. As regards the prohibition set forth in Article 14 of the Convention, the Court reiterates that discrimination means treating differently, without an objective and reasonable justification, persons in similar situations, and that “no objective and reasonable justification” means that the distinction in issue does not pursue a “legitimate aim” or that there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see Biao v. Denmark [GC], no. 38590/10, §§ 90 and 93, 24 May 2016; Molla Sali v. Greece [GC], no. 20452/14, §§ 135-136, 19 December 2018, and Çam, cited above, § 54 ). However, Article 14 does not prohibit member States from treating groups differently in order to correct “factual inequalities between them”; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article (see, among other judgments, Guberina v. Croatia, no. 23682/13, § 72, 22 March 2016). Furthermore, the Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 76, ECHR 2013).", "53. When examining a case under Article 14 of the Convention, the Court must have regard to developments in international and European law and respond, for example, to any emerging consensus as to the standards to be achieved (see, mutatis mutandis, Konstantin Markin v. Russia [GC], no. 30078/06, § 126, ECHR 2012, and Fabris v. France [GC], no. 16574/08, § 56, ECHR 2013). To that effect, the Court notes the importance of the fundamental principles of universality and non-discrimination in the exercise of the right to education, which are enshrined in many international (see the relevant international materials in paragraphs 20 ‑ 31 above). It further emphasises that those instruments have recognised inclusive education, aimed at promoting equal opportunities for all, particularly for persons with disabilities (see Çam, cited above, § 64, and the references therein). Inclusive education therefore forms part of the States’ international responsibility in this sphere (see Enver Şahin v. Turkey no. 23065/12, § 62, 30 January 2018).", "54. The Court also reiterates that if a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restriction in question. The Court has already identified a number of such vulnerable groups that suffered different treatment on account of their characteristics or status, including disability (see Glor, cited above, § 84; Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010; Kiyutin v. Russia, no. 2700/10, § 63, ECHR 2011; and Guberina, cited above, § 73). Moreover, any measure relating to children with disabilities must prioritise the best interests of the child (see paragraph 34 above, Article 7 § 2 CRPD). Nevertheless, in any event, regardless of the State’s margin of appreciation, the final decision as to observance of the Convention’s requirements rests with the Court (see, among other authorities, Konstantin Markin v. Russia [GC], no. 30078/06, § 126, ECHR 2012).", "(a) Application of these principles to the present case", "(i) Establishing the framework of the assessment", "55. The Court observes at the outset that the Italian legal system secures the right of education for children with disabilities in the form of inclusive education in ordinary schools. In Italy all children attend a single type of school throughout their period of compulsory education: children with disabilities are integrated into ordinary classes in State schools, and the State has introduced educational psychology services responsible for ensuring the presence in the relevant classes of a “support” teacher to coordinate the assistants’ activities and co-operate with the class teacher, sharing responsibility with him or her. Where required by the pupil’s situation, other professionals can be called in as “autonomy and communication assistants” tasked with “eliminating barriers to perception and sensorial obstacles”, and educational assistants accompanying the pupil in order to promote his or her autonomy and socialisation (see paragraph 18 above).", "56. In the present case the applicant, a non-verbal autistic child, alleged that she had been unable to receive the specialist assistance provided for by law.", "57. The Court’s task is therefore to ascertain whether the national authorities effectively honoured their obligations under Article 14 of the Convention, read in conjunction with Article 2 of Protocol No. 1 to the Convention, in respect of the applicant, within their margin of appreciation, and whether they made reasonable accommodation so that she could benefit from the rights secured under Article 2 of Protocol No. 1 in conjunction with Article 14.", "58. The Court must therefore assess the readiness of the authorities to react to the situation submitted to them.", "(ii) Refusal to provide the applicant with specialist assistance", "59. In the instant case the applicant submitted that her inability to receive specialist assistance for her first two years in primary school amounted to discriminatory treatment. On that point, the Court observes that at the material time various legislative provisions set forth the right to education of children with disabilities and afforded them protection against discrimination (see section on relevant domestic law, paragraphs 17 ‑ 18 above).", "60. The Court emphasises that by providing for the inclusion of children with disabilities in ordinary schooling, the legislature had effected a choice in the framework of its margin of appreciation. It observed that the contents of the case file here show that even though the law provided, in an abstract manner, for making “reasonable accommodation”, without granting the authorities any leeway, the competent national bodies did not actually explain how such accommodation should be effected in the period from 2010 to 2012, and that the applicant was therefore unable to receive specialist assistance tailored to her specific educational needs during that time.", "61. Reiterating that the Convention is intended to safeguard concrete and effective rights, the Court pointed out that in the present case it had to have regard to developments in international and European law and respond, for example, to any emerging consensus as to the standards to be achieved in the relevant sphere (see paragraphs 51 and 53 above).", "62. The Court thus considers that Article 14 of the Convention should be interpreted in the light of the requirements set out in the aforementioned texts, particularly the CRPD (see paragraph 26 above). The latter instrument provides that the “reasonable accommodation” which persons with disabilities are entitled to expect are “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms” (Article 2, see paragraph 26 above), and discrimination on grounds of disability “includes all forms of discrimination, including denial of reasonable accommodation”. Indeed, reasonable accommodation measures are aimed at correcting factual inequalities (see paragraph 26 above; see also, mutatis mutandis, Çam, cited above, §§ 65 and 67, and Şanlısoy v. Turkey (dec.), no. 77023/12, § 60, 8 November 2016).", "63. Clearly it is not the Court’s task to define the “reasonable accommodation” – which can take on different material and non-material forms – to be implemented in the educational sphere in response to the educational needs of persons with disabilities; the national authorities are much better placed than it to do so (see, for example, Çam, cited above, § 66). However, it is important for States to pay particular attention to their choices in this sphere in view of their impact on children with disabilities, whose high level of vulnerability cannot be overlooked (see paragraph 54 above).", "64. In the instant case, therefore, the Court must verify, in view of the fact that the State had decided to provide the possibility of inclusive education to children with disabilities, whether the authorities had had valid reasons for depriving the applicant of access to specialist assistance (see paragraph 34 above).", "65. The Government based its pleadings primarily on the argument that since the only available funds had been earmarked for persons suffering from ALS, the authorities had not had any financial resources readily available for school support. They further submitted that in any event, the school in question had, at its own expense, made arrangements for specialist assistance to be provided by a number of its employees. Nevertheless, they supplied no information on the specific competences of those persons or on the support provided, and no details concerning the timescales involved. The Court further observes in that connection that according to the information communicated, the school had spent EUR 476.56 on the services provided by six persons for one school year.", "66. Having regard to the Government’s explanations, the Court considers that there can be no doubt that the applicant was unable to continue to attend primary school under conditions equivalent to those enjoyed by non-disabled pupils, and that that difference of treatment had been due to her disability. It can only note that for two whole school years, apart from private assistance paid for by her parents, and a number of interventions by school employees, concerning which the Government provided no further information, the applicant did not receive the specialist assistance to which she was entitled and which would have given her access to the educational and social services afforded by the school on an equal footing with the other pupils.", "(i) Proceedings before the administrative courts", "67. The administrative courts to which the applicant applied dismissed her claims. They held that the lack of financial resources had justified her inability to receive specialist assistance, without seeking to ascertain whether the authorities had struck a fair balance between her educational needs and the authorities’ reduced capacity for meeting those needs, or whether her allegations of discrimination had been justified. In particular, they had failed to ascertain whether the budgetary restrictions relied on by the authorities had had the same impact on the educational services provided for both disabled and non-disabled children.", "68. The Court notes that the national authorities had at no stage considered the possibility that the lack of resources or the urgent need to prioritise the treatment of persons suffering from a serious disease could be offset not by tampering with the reasonable accommodation measures guaranteeing equal opportunities for children with disabilities, but by reducing the level of educational provision in a manner divided equitably between the non-disabled and the disabled pupils, even though the Court of Cassation had already stressed that aspect in its judgments (see paragraph 19 above). The Court considers in this regard that, having regard, on the one hand, to the inclusive schooling model adopted in Italy, with a single stream for all pupils, and on the other, to the case-law of the Court of Cassation, any budgetary restrictions should affect educational provision in an identical manner for both disabled and non-disabled pupils.", "69. The Court reiterates in this connection that pursuant to Article 15 of the European Social Charter (Revised) (see paragraph 27 above), States should “promote [the] full social integration and participation [of persons with disabilities] in the life of the community in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility” (see also, in paragraph 26 above, Articles 24 § 2 (c) and (d) and 24 § 3 (a) CRPD). In the present case, the applicant should have received specialist assistance aimed at promoting her personal autonomy and communication skills and improving her learning process, her relationships with others and her integration at school in order to prevent the risk of marginalisation. The Court reiterates that in its Recommendation Rec(2006)5 (see paragraph 29 above), the Committee of Ministers emphasised that “enabling persons with disabilities to participate in ordinary educational structures is important not only for them but also for non-disabled people, allowing the latter to learn about disability as a factor in human diversity”.", "(i) The Court’s conclusions", "70. In the light of all the foregoing considerations, the Court concludes that in the present case the authorities did not seek to determine the applicant’s real needs or possible solutions to enable her to attend primary school under conditions as similar as possible to those enjoyed by other children, without imposing a disproportionate or undue burden on the authorities (see, to converse effect, Sanlisoy cited above, in which the Court ruled that a private school’s refusal to enrol the applicant, who was a seven-year-old autistic child, had amounted neither to a systematic negation of his right to education on grounds of his autism, nor to a failure on the part of the State to honour its obligations under Article 2 of Protocol No. 1 read in conjunction with Article 14 of the Convention; and also Stoian v. Romania [Committee], no. 289/14, 25 June 2019, in which the Court considered that the national authorities had allocated resources to the schools attended by the applicant, a disabled child, such as to meet his special needs).", "71. The Court further holds that the discrimination suffered by the applicant is particularly serious as it occurred in the framework of primary schooling, when the foundations are laid ich provides the bases for overall education and social integration and the first experiences of living together – and which is compulsory in most countries (see, mutatis mutandis, Ponomaryovi, cited above, §§ 56 ‑ 57).", "72. Having regard to all those considerations, the Court concludes that in the present case the Government failed to demonstrate that the national authorities had reacted with the requisite diligence to ensure that the applicant could enjoy her right to education on an equal footing with the other pupils, such as to strike a fair balance between the competing interests.", "There has therefore been a violation of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1.", "73. Having regard to that conclusion, the Court considers it unnecessary to consider separately the complaint under Article 2 of Protocol No. 1 (see, mutatis mutandis, Darby v. Sweden, 23 October 1990, § 35, Series A no. 187; Pla and Puncernau v. Andorra, no. 69498/01, § 64, ECHR 2004 ‑ VIII; Oršuš and Ithers, cited above, § 186; and Çam, cited above, § 70).", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 14", "74. The applicant also considered that she had sustained an infringement, which she deemed discriminatory, of her right to respect for her private life. She submitted that the fact that she had not benefited from specialist educational services had harmed her personal and intellectual development and undermined her present and future chances of leading a worthwhile life as a full member of the community.", "75. For their part, the Government affirmed that the authorities had adopted appropriate support measures to guarantee the applicant’s education, training, socialisation and integration at school.", "76. The Court considers that that complaint is closely related to that which it has just examined and that it must therefore also be declared admissible. However, having regard to the observations set out in paragraphs 70 to 72 above, as well as to its finding in paragraph 73, it holds that there is no need to examine it separately.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "77. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Pecuniary damage", "78. The applicant claimed 2,520 euros (EUR) in respect of pecuniary damage, explaining that that sum corresponded to the cost of the private specialist assistance paid for by her parents for the 2011/2012 school year.", "79. She also requested that the Court award her an equitable amount in respect of non-pecuniary damage. She considered that having regard to the fact that her inability to receive appropriate assistance adequate had impeded her personal development and infringed her right to education and her right to respect for her private life, a sum of EUR 10,000 might be considered fair. However, she left that matter to the Court’s discretion.", "80. The Government submitted that the applicant’s claims lacked any basis in law and that her parents had freely chosen to resort to private specialist assistance.", "81. The Court discerned a causal link between the violation found and the pecuniary damage alleged, that is to say the costs incurred by the applicant’s parents in providing their daughter with private specialist assistance for the 2011/2012 school year. Having regard to the documents in its possession, the Court considers it reasonable to award the applicant the sum of EUR 2,520 under that head.", "82. Further considering that the fact that the applicant had been deprived of specialist assistance for two school years had caused her non-pecuniary damage, the Court considers it appropriate to award her the requested sum of 10 000 EUR under that head.", "Costs and expenses", "83 Submitting documentary evidence, the applicant claimed EUR 4,175 in respect of costs and expenses incurred in the framework of proceedings before the domestic courts, and EUR 8,000 in respect of costs and expenses incurred for the purposes of the proceedings before the Court, that amount having been calculated on the basis of the applicable national rates.", "84. The Government considered that the claim for reimbursement of costs incurred in the framework of the domestic proceedings lacked any legal basis.", "85. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 4,175 in respect of costs and expenses incurred in the framework of the domestic proceedings, which sum corresponds to the costs paid for the purposes of the proceedings before the administrative courts. On the other hand, it rejects the claim concerning costs incurred for the purposes of the proceedings before it, as the applicant has failed to produce any evidence in support.", "Default interest", "86. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1954 and lives in Rózsaszentmárton.", "7. In 1991 the applicant was diagnosed with manic depression. On 27 May 2005 he was placed under partial guardianship. Although this measure was based on the Civil Code which deals with the pecuniary and certain personal relations of citizens (see paragraph 12 below), it nevertheless also attracted the application of Article 70(5) of the Constitution (see paragraph 11 below) to the applicant, excluding him from the right to vote. In the underlying court decision it was noted that he took care of himself adequately but sometimes wasted money in an irresponsible fashion and was occasionally aggressive. The applicant did not appeal against this decision.", "8. On 13 February 2006 the applicant realised that he had been omitted from the electoral register drawn up in view of the upcoming legislative elections. His complaint to the Electoral Office was to no avail.", "9. The applicant further complained to the Pest Central District Court. On 9 March 2006 this court dismissed his case. It observed that, under Article 70(5 ) of the Constitution, those under guardianship could not participate in elections. This decision was served on the applicant's representative on 25 April 2006.", "10. In the meantime, legislative elections took place on 9 and 23 April 2006, in which the applicant could not participate.", "i. requests of social security, social and unemployment benefits and disposition over such benefits or over income deriving from employment ... exceeding the amount defined in paragraph (2) c) of section 14/B;", "ii. right of disposition concerning moveable and real property;", "iv. taking pecuniary decisions in relation to maintenance obligations;", "v. making legal statements in relation to residential leases (conclusion and termination of the contract);", "vi. inheritance matters;", "vii. legal statements concerning placement in an in-house social institution;", "viii. disposing of rights related to health services;", "ix. determination of place of residence. ”", "13. Act no. C of 1997 on Election Procedure provides as follows:", "Registration of citizens of legal age without the right to vote", "Section 17", "“(1) In order to establish the right to vote, the organs listed under points a)-c) keep informed the central agency, managing the register of citizens'personal data and addresses, of the changes occurring in the data, specified in paragraph (2), of ... citizens of legal age without the right to vote, as follows :", "a) the office of guardians ... on placement under guardianship limiting or excluding legal capacity, and on the termination of guardianship, ...", "(2) The communication described under paragraph (1) includes the citizen's:", "a) first and last name (for women, also maiden name ),", "b) personal identification number,", "c) the reason for exclusion from the exercise of voting rights, its beginning date and expected end date.”", "14. The United Nations Convention on the Rights of Persons with Disabilities ( the “ CRPD”), which was ratified by Hungary on 2 0 July 2007, provides as follows:", "Article 1 - Purpose", "... “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others.”", "Article 12 - Equal recognition before the law", "“ 1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.", "2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.", "3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.", "4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests. ... ”", "Article 29 - Participation in political and public life", "“ States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake to:", "a. Ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by:", "i. Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use;", "ii. Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate;", "iii. Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice;", "b. Promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs, including:", "i. Participation in non-governmental organizations and associations concerned with the public and political life of the country, and in the activities and administration of political parties;", "ii. Forming and joining organizations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels. ”", "15. The Council of Europe Recommendation R(99)4 of the Committee of Ministers to Member States on Principles Concerning the Legal Protection of Incapable Adults (adopted on 23 February 1999) (“ Recommendation R(99)4 ”) provides as follows:", "Principle 3 – Maximum preservation of capacity", "“ ... 2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so.”", "16. Opinion no. 190/2002 of the European Commission for Democracy through Law (Venice Commission) on the Code of Good Practice in Electoral Matters (“Opinion no. 190/2002”) provides as follows:", "I. 1. Universal suffrage – 1.1. Rule and exceptions", "d. Deprivation of the right to vote and to be elected:", "“ i. provision may be made for depriving individuals of their right to vote and to be elected, but only subject to the following cumulative conditions:", "ii. it must be provided for by law;", "iii. the proportionality principle must be observed; conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them;", "iv. The deprivation must be based on mental incapacity or a criminal conviction for a serious offence.", "v. Furthermore, the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law. ”", "17. The Council of Europe Recommendation R(2006)5 of the Committee of Ministers to Member States on the Council of Europe Action Plan to Promote the Rights and Full Participation of People with Disabilities in Society: Improving the Quality of Life of People with Disabilities in Europe 2006-2015 (adopted on 5 April 2006) (“Recommendation R(2006)5”) provides as follows:", "3.1. Action line No.1: Participation in political and public life", "3.1.3. Specific actions by member states", "“ ... iii. to ensure that no person with a disability is excluded from the right to vote or to stand for election on the basis of her/his disability; ... ”" ]

[ "II. RELEVANT DOMESTIC LAW AND THE INTERNATIONAL LEGAL INSTRUMENTS CONSIDERED", "11. Article 70(5 ) of the Hungarian Constitution provides inter alia that persons placed under total or partial guardianship do not have a right to vote.", "12. The Civil Code provides :", "Section 1", "“(1) This Act regulates the pecuniary and certain personal relations of citizens ... ”", "Section 14", "“ (4) Persons of legal age may be placed under partial guardianship by a court if their faculties necessary to conduct their affairs are – owing to their mental state, unsound mind or pathological addiction – permanently or recurrently diminished to a great extent in general or in relation to certain groups of matters.", "(5) If the limitation of discretionary ability is only partial, the person under guardianship may make valid legal statements independently in all matters in relation to which the court did not limit his/her capacity in its decision.", "(6) The court may limit the full capacity of a person placed under guardianship in particular in respect of the following groups of matters:", "iii. making certain legal statements in family law matters, namely:", "a) legal statements concerning matrimonial property rights or property rights related to a registered partnership,", "b) making statements in relation to the establishment of parentage,", "c) defining the name of one's child and its alteration,", "d) giving consent to the adoption of one's child;", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1 TO THE CONVENTION", "18. The applicant complained that the disenfranchisement, imposed on him because he was under partial guardianship for manic depression, constituted an unjustified deprivation of his right to vote, which was not susceptible to any remedy since it was prescribed by the Constitution, and which was discriminatory in nature. He relied on Article 3 of Protocol No. 1, read alone or in conjunction with Articles 13 and 14 of the Convention.", "19. The Government contested those arguments.", "20. The Court considers that the application falls to be examined under Article 3 of Protocol No. 1 (see, mutatis mutandis, Hirst v. the United Kingdom (no. 2), no. 74025/01, § § 53 and 54, 30 March 2004 ) which provides as relevant:", "“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”", "A. Admissibility", "21. The Government submitted that the application should be rejected for non-exhaustion of domestic remedies, since the applicant had not appealed against his placement under guardianship (see paragraph 7 above).", "22. The applicant submitted that he had accepted the necessity of his placement under partial guardianship in view of his mental ailment; therefore, he had not appealed against the District Court's decision. The purpose of the present application was solely to challenge the fact that as a person placed under guardianship he had automatically lost his right to vote. To challenging his guardianship was not an effective remedy to this problem; guardianship proceedings are not concerned as such with one's right to vote. Only a full restoration of the applicant's legal capacity would restore his right to vote, which however was neither possible (since he suffers from a mental disability) nor desirable (since he would lose the legal protection provided by guardianship ).", "23. The Court notes that the applicant accepted the necessity of his placement under partial guardianship and that, therefore, he did not appeal against it. It observes that the subject matter of the application is not the guardianship measure, but its automatic consequence prescribed in the Constitution (see paragraph 11 above), namely the applicant's disenfranchisement. The Government have not pointed to any remedy capable of redressing this latter issue. It follows that the application cannot be rejected for non-exhaustion of domestic remedies. Moreover, it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties'submissions", "a. The Government", "24. The Government submitted that the rights under Article 3 of Protocol No. 1 are not absolute and might be restricted under certain conditions. The Contracting States might specify the conditions of active and passive suffrage in their domestic law and enjoyed a wide margin of appreciation in this respect, although those conditions must not restrict the rights in question to such an extent that their very substance was affected. The grounds for exclusion from the right to vote ( Article 70(5) of the Constitution, see paragraph 11 above ) had been incorporated into the Constitution by Act no. 31 of 1989. According to the reasoning of the Act, its purpose had been to regulate the basic rights and obligations in the spirit of international human rights instruments, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.", "25. In identifying those eligible to vote, the general practice was to set a minimum age requirement, normally that of majority, whereby States automatically excluded from the right to vote all underage citizens (although assessed individually, several minors could be found mature enough to participate in public affairs ). The objective was to ensure that only citizens capable of assessing the consequences of their decisions, capable of making conscious and judicious decisions and vested with other rights linked to the age of majority, should participate in public affairs.", "26. The exclusion from the right to vote of persons under guardianship pursued the same legitimate aim. These persons, although adults, lacked the capacity to manage their affairs, including the exercise of their right to vote, owing to their mental state, unsound mind or pathological addiction. When assessing whether to place the applicant under guardianship, the District Court factored into its decision the applicant's resultant exclusion from the right to vote, pursuant to the constitutional rule disenfranchising those citizens who were incapable of assessing the consequences of their decisions or of making conscious or judicious decisions.", "27. Furthermore, in the Government's view, the prohibition complained of was in compliance with the Venice Commission's Opinion no. 190/2002 (see paragraph 16 above) and cannot therefore be considered disproportionate, all the more so since the applicant's right to vote would be statutorily restored if his placement under guardianship was rescinded at one of the periodical judicial reviews of his condition, or if a motion of the applicant to the same end succeeded in view of his improved mental status.", "b. The applicant", "28. The applicant accepted in principle that the restriction in question pursued a legitimate aim, as suggested by the Government ( see paragraphs 25 and 26 above), without subscribing to the view that people under guardianship in general could not make the responsible choices required for participation in elections. However, he argued that States should enjoy a narrow margin of appreciation in the matter, essentially because any exclusion of people with disabilities from public life must be subject to scrutiny as to whether it was compatible with relevant international human rights requirements, particularly where there had been no substantive debate at the domestic level on the appropriateness of the measure. He added that, with regard to the voting rights of people with disabilities, the historical or political specifics of particular electoral systems played no role.", "29. The applicant also submitted that the restriction in question affected 0.75% of the Hungarian population of voting age, which was a substantial group. In reply to the Government's argument in paragraph 25 above, he emphasised that there were important distinctions between minors and people with disabilities, the most significant being that, while an individual assessment of the maturity of all minors would be an unreasonable burden on the authorities, the same could not be said about the fitness to vote of adults under guardianship, whose status was in any event determined in individual judicial proceedings.", "30. He further argued that the judicial decision resulting in his placement under guardianship had not been preceded by any particular scrutiny establishing a connection between his mental ailment and his capacity to vote. In his view, there was indeed no such connection, since his condition in no way impeded his capacity to orient himself in political matters. The absence of such scrutiny could be explained by the fact that, in any event, the District Court had no discretion in this regard, the restriction being directly prescribed by the Constitution. This was different from the legislation of several Member States of the Council of Europe including Germany, Austria, Switzerland, France, Italy, Sweden and Spain, where persons under partial guardianship could vote.", "31. As regards international law, the applicant submitted, in reply to the Government's argument in paragraph 27 above, that Opinion no. 190/2002 was in fact silent on the issue of whether persons under guardianship could be excluded from the right to vote, but this silence could not be interpreted as permitting a blanket and automatic prohibition on all persons under guardianship. He drew attention to Principle 3.2 of Recommendation R(99)4 (see paragraph 15 above) and Articles 12 and 29 of the CRPD (see paragraph 14 above).", "32. The applicant further rejected as outdated the Government's approach according to which all persons with intellectual and psycho-social disability, placed under guardianship, were incapable of independent decision-making. In his view, modern legislation accepted that the decision-making capacity of people with intellectual or mental disabilities should be recognised as much as possible, especially in the field of the right to vote. This approach was reflected in trends in international law, such as the CRPD (see paragraph 14 above). If one were to accept that a blanket and automatic prohibition on the right to vote of people under guardianship was justified because they were, based on their legal status, unable to make conscious and judicious decisions and were unfit to vote, then a large class of citizens would be deprived of the protection provided by Article 3 of Protocol No. 1, without due consideration given to their individual circumstances. This was incompatible with the Court's case-law on the matter (see Hirst v. the United Kingdom (no. 2 ) [GC], no. 74025/01, ECHR 2005 ‑ IX ).", "33. Lastly, the applicant submitted that the impugned restriction could be replaced by a less restrictive alternative, such as allowing the courts to address this particular issue in guardianship proceedings or establishing a separate procedure with a view to assessing the fitness to vote of a person under guardianship.", "c. The third party", "34. The intervener emphasised that the prohibition in question was not only at variance with Recommendation R(2006)5 (see paragraph 17 above), but was also not in compliance with Articles 12 and 29 of the CRPD (see paragraph 14 above), which was the first legally binding instrument in international law guaranteeing the comprehensive protection of the rights of persons with disabilities. This convention, signed by the European Community on 30 March 2007, represented the practice of European States which should be considered when interpreting Article 3 of Protocol No. 1.", "d. The applicant's comments on the third-party intervention", "35. The applicant agreed with the intervener that the rights under the Convention of those with disabilities should be interpreted in the light of the CRPD (see paragraph 14 above). He considered himself mentally disabled and, as such, should benefit from the protection afforded by the CRPD. The restriction imposed on him is incompatible with the CRPD's spirit and text, in particular its Articles 12 and 29.", "2. The Court's assessment", "a. General principles", "36. The Court refers to its case-law in the matter, as outlined in the judgment of Hirst v. the United Kingdom (no. 2) [GC], (op.cit.):", "“57. [T]he Court has established that [Article 3 of Protocol No. 1] guarantees individual rights, including the right to vote and to stand for election (see Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A no. 113, pp. 22-23, §§ 46-51). ...", "58. The ... rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law ...", "59. ... [T]he right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion. ... Universal suffrage has become the basic principle (see Mathieu-Mohin and Clerfayt, cited above, p. 23, § 51, citing X v. Germany, no. 2728/66, Commission decision of 6 October 1967, Collection 25, pp. 38-41).", "60. Nonetheless, the rights bestowed by Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations and Contracting States must be allowed a margin of appreciation in this sphere.", "61. ... The Court reaffirms that the margin in this area is wide (see Mathieu-Mohin and Clerfayt, cited above, p. 23, § 52, and, more recently, Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I; see also Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV, and Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II). ...", "62. It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Mathieu-Mohin and Clerfayt, p. 23, § 52). In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. For example, the imposition of a minimum age may be envisaged with a view to ensuring the maturity of those participating in the electoral process or, in some circumstances, eligibility may be geared to criteria, such as residence, to identify those with sufficiently continuous or close links to, or a stake in, the country concerned (see Hilbe v. Liechtenstein (dec.), no. 31981/96, ECHR 1999-VI, and Melnychenko v. Ukraine, no. 17707/02, § 56, ECHR 2004-X). Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates. Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (see, mutatis mutandis, Aziz v. Cyprus, no. 69949/01, § 28, ECHR 2004-V).”", "b. Application of those principles to the present case", "37. The Court will therefore determine whether the measure in question pursued a legitimate aim in a proportionate manner having regard to the principles identified above.", "(i) Legitimate aim", "38. The Court points out that Article 3 of Protocol No. 1 does not, like other provisions of the Convention, specify or limit the aims which a restriction must pursue and that a wide range of purposes may therefore be compatible with Article 3. The Government submitted that the measure complained of pursued the legitimate aim of ensuring that only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs (see paragraphs 25 and 26 above). The applicant accepted this view (see paragraph 28 above) and the Court sees no reason to hold otherwise. It is therefore satisfied that the measure pursued a legitimate aim.", "(ii) Proportionality", "39. The Court notes that the restriction in question does not distinguish between those under total and those under partial guardianship (see paragraph 11 above), and is removed once guardianship is terminated (see the Government's submission in paragraph 27 above, not disputed by the applicant). However, it observes the applicant's assertion in paragraph 29 above, not refuted by the Government, that 0.75% of the Hungarian population of voting age is concerned by disenfranchisement on account of being under guardianship in a manner which is indiscriminate. It finds this to be a significant figure, and it cannot be claimed that the bar is negligible in its effects.", "40. The Government argued, relying on the margin of appreciation, that it must be permissible for the legislature to establish rules ensuring that only those who are capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs.", "41. The Court accepts that this is an area in which, generally, a wide margin of appreciation should be granted to the national legislature in determining whether restrictions on the right to vote can be justified in modern times and, if so, how a fair balance is to be struck. In particular, it should be for the legislature to decide as to what procedure should be tailored to assessing the fitness to vote of mentally disabled persons. The Court observes that there is no evidence that the Hungarian legislature has ever sought to weigh the competing interests or to assess the proportionality of the restriction as it stands.", "42. The Court cannot accept, however, that an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties, falls within an acceptable margin of appreciation. Indeed, while the Court reiterates that this margin of appreciation is wide, it is not all-embracing ( Hirst v. the United Kingdom (no. 2) [GC], op. cit., § 82 ). In addition, if a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, such as the mentally disabled, then the State's margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question (cf. also the example of those suffering different treatment on the ground of their gender - Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 78, Series A no. 94, race - D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 182, ECHR 2007 ‑ ..., or sexual orientation - E.B. v. France [GC], no. 43546/02, § 94, ECHR 2008 ‑ ... ). The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice may entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs (cf. Shtukaturov v. Russia, no. 44009/05, § 95, 27 March 2008).", "43. The applicant in the present case lost his right to vote as the result of the imposition of an automatic, blanket restriction on the franchise of those under partial guardianship. He may therefore claim to be a victim of the measure. The Court cannot speculate as to whether the applicant would still have been deprived of the right to vote even if a more limited restriction on the rights of the mentally disabled had been imposed in compliance with the requirements of Article 3 of Protocol No. 1 (see mutatis mutandis Hirst v. the United Kingdom (no. 2), op.cit, § § 48 to 52).", "44. The Court further considers that the treatment as a single class of those with intellectual or mental disabilities is a questionable classification, and the curtailment of their rights must be subject to strict scrutiny. This approach is reflected in other instruments of international law, referred to above (paragraphs 14-17). The Court therefore concludes that an indiscriminate removal of voting rights, without an individualised judicial evaluation and solely based on a mental disability necessitating partial guardianship, cannot be considered compatible with the legitimate grounds for restricting the right to vote.", "There has accordingly been a violation of Article 3 of Protocol No. 1 to the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "45. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "46. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.", "47. The Government contested this claim.", "48. The Court considers that the applicant must have suffered some non-pecuniary damage and awards him, on an equitable basis, EUR 3,000 under this head.", "B. Costs and expenses", "49. The applicant also claimed EUR 7,500 for the costs and expenses incurred before the domestic authorities and the Court. This sum corresponds to 75 hours of legal work, according to the time-sheet submitted, billable by his representative and charged at an hourly rate of EUR 100.", "50. The Government contested this claim.", "51. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5 ,000 covering costs under all heads.", "C. Default interest", "52. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1954 and lives in Rózsaszentmárton.", "7. In 1991 the applicant was diagnosed with manic depression. On 27 May 2005 he was placed under partial guardianship. Although this measure was based on the Civil Code which deals with the pecuniary and certain personal relations of citizens (see paragraph 12 below), it nevertheless also attracted the application of Article 70(5) of the Constitution (see paragraph 11 below) to the applicant, excluding him from the right to vote. In the underlying court decision it was noted that he took care of himself adequately but sometimes wasted money in an irresponsible fashion and was occasionally aggressive. The applicant did not appeal against this decision.", "8. On 13 February 2006 the applicant realised that he had been omitted from the electoral register drawn up in view of the upcoming legislative elections. His complaint to the Electoral Office was to no avail.", "9. The applicant further complained to the Pest Central District Court. On 9 March 2006 this court dismissed his case. It observed that, under Article 70(5 ) of the Constitution, those under guardianship could not participate in elections. This decision was served on the applicant's representative on 25 April 2006.", "10. In the meantime, legislative elections took place on 9 and 23 April 2006, in which the applicant could not participate.", "i. requests of social security, social and unemployment benefits and disposition over such benefits or over income deriving from employment ... exceeding the amount defined in paragraph (2) c) of section 14/B;", "ii. right of disposition concerning moveable and real property;", "iv. taking pecuniary decisions in relation to maintenance obligations;", "v. making legal statements in relation to residential leases (conclusion and termination of the contract);", "vi. inheritance matters;", "vii. legal statements concerning placement in an in-house social institution;", "viii. disposing of rights related to health services;", "ix. determination of place of residence. ”", "13. Act no. C of 1997 on Election Procedure provides as follows:", "Registration of citizens of legal age without the right to vote", "Section 17", "“(1) In order to establish the right to vote, the organs listed under points a)-c) keep informed the central agency, managing the register of citizens'personal data and addresses, of the changes occurring in the data, specified in paragraph (2), of ... citizens of legal age without the right to vote, as follows :", "a) the office of guardians ... on placement under guardianship limiting or excluding legal capacity, and on the termination of guardianship, ...", "(2) The communication described under paragraph (1) includes the citizen's:", "a) first and last name (for women, also maiden name ),", "b) personal identification number,", "c) the reason for exclusion from the exercise of voting rights, its beginning date and expected end date.”", "14. The United Nations Convention on the Rights of Persons with Disabilities ( the “ CRPD”), which was ratified by Hungary on 2 0 July 2007, provides as follows:", "Article 1 - Purpose", "... “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others.”", "Article 12 - Equal recognition before the law", "“ 1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.", "2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.", "3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.", "4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests. ... ”", "Article 29 - Participation in political and public life", "“ States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake to:", "a. Ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by:", "i. Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use;", "ii. Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate;", "iii. Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice;", "b. Promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs, including:", "i. Participation in non-governmental organizations and associations concerned with the public and political life of the country, and in the activities and administration of political parties;", "ii. Forming and joining organizations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels. ”", "15. The Council of Europe Recommendation R(99)4 of the Committee of Ministers to Member States on Principles Concerning the Legal Protection of Incapable Adults (adopted on 23 February 1999) (“ Recommendation R(99)4 ”) provides as follows:", "Principle 3 – Maximum preservation of capacity", "“ ... 2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so.”", "16. Opinion no. 190/2002 of the European Commission for Democracy through Law (Venice Commission) on the Code of Good Practice in Electoral Matters (“Opinion no. 190/2002”) provides as follows:", "I. 1. Universal suffrage – 1.1. Rule and exceptions", "d. Deprivation of the right to vote and to be elected:", "“ i. provision may be made for depriving individuals of their right to vote and to be elected, but only subject to the following cumulative conditions:", "ii. it must be provided for by law;", "iii. the proportionality principle must be observed; conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them;", "iv. The deprivation must be based on mental incapacity or a criminal conviction for a serious offence.", "v. Furthermore, the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law. ”", "17. The Council of Europe Recommendation R(2006)5 of the Committee of Ministers to Member States on the Council of Europe Action Plan to Promote the Rights and Full Participation of People with Disabilities in Society: Improving the Quality of Life of People with Disabilities in Europe 2006-2015 (adopted on 5 April 2006) (“Recommendation R(2006)5”) provides as follows:", "3.1. Action line No.1: Participation in political and public life", "3.1.3. Specific actions by member states", "“ ... iii. to ensure that no person with a disability is excluded from the right to vote or to stand for election on the basis of her/his disability; ... ”" ]

[ "II. RELEVANT DOMESTIC LAW AND THE INTERNATIONAL LEGAL INSTRUMENTS CONSIDERED", "11. Article 70(5 ) of the Hungarian Constitution provides inter alia that persons placed under total or partial guardianship do not have a right to vote.", "12. The Civil Code provides :", "Section 1", "“(1) This Act regulates the pecuniary and certain personal relations of citizens ... ”", "Section 14", "“ (4) Persons of legal age may be placed under partial guardianship by a court if their faculties necessary to conduct their affairs are – owing to their mental state, unsound mind or pathological addiction – permanently or recurrently diminished to a great extent in general or in relation to certain groups of matters.", "(5) If the limitation of discretionary ability is only partial, the person under guardianship may make valid legal statements independently in all matters in relation to which the court did not limit his/her capacity in its decision.", "(6) The court may limit the full capacity of a person placed under guardianship in particular in respect of the following groups of matters:", "iii. making certain legal statements in family law matters, namely:", "a) legal statements concerning matrimonial property rights or property rights related to a registered partnership,", "b) making statements in relation to the establishment of parentage,", "c) defining the name of one's child and its alteration,", "d) giving consent to the adoption of one's child;", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1 TO THE CONVENTION", "18. The applicant complained that the disenfranchisement, imposed on him because he was under partial guardianship for manic depression, constituted an unjustified deprivation of his right to vote, which was not susceptible to any remedy since it was prescribed by the Constitution, and which was discriminatory in nature. He relied on Article 3 of Protocol No. 1, read alone or in conjunction with Articles 13 and 14 of the Convention.", "19. The Government contested those arguments.", "20. The Court considers that the application falls to be examined under Article 3 of Protocol No. 1 (see, mutatis mutandis, Hirst v. the United Kingdom (no. 2), no. 74025/01, § § 53 and 54, 30 March 2004 ) which provides as relevant:", "“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”", "A. Admissibility", "21. The Government submitted that the application should be rejected for non-exhaustion of domestic remedies, since the applicant had not appealed against his placement under guardianship (see paragraph 7 above).", "22. The applicant submitted that he had accepted the necessity of his placement under partial guardianship in view of his mental ailment; therefore, he had not appealed against the District Court's decision. The purpose of the present application was solely to challenge the fact that as a person placed under guardianship he had automatically lost his right to vote. To challenging his guardianship was not an effective remedy to this problem; guardianship proceedings are not concerned as such with one's right to vote. Only a full restoration of the applicant's legal capacity would restore his right to vote, which however was neither possible (since he suffers from a mental disability) nor desirable (since he would lose the legal protection provided by guardianship ).", "23. The Court notes that the applicant accepted the necessity of his placement under partial guardianship and that, therefore, he did not appeal against it. It observes that the subject matter of the application is not the guardianship measure, but its automatic consequence prescribed in the Constitution (see paragraph 11 above), namely the applicant's disenfranchisement. The Government have not pointed to any remedy capable of redressing this latter issue. It follows that the application cannot be rejected for non-exhaustion of domestic remedies. Moreover, it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties'submissions", "a. The Government", "24. The Government submitted that the rights under Article 3 of Protocol No. 1 are not absolute and might be restricted under certain conditions. The Contracting States might specify the conditions of active and passive suffrage in their domestic law and enjoyed a wide margin of appreciation in this respect, although those conditions must not restrict the rights in question to such an extent that their very substance was affected. The grounds for exclusion from the right to vote ( Article 70(5) of the Constitution, see paragraph 11 above ) had been incorporated into the Constitution by Act no. 31 of 1989. According to the reasoning of the Act, its purpose had been to regulate the basic rights and obligations in the spirit of international human rights instruments, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.", "25. In identifying those eligible to vote, the general practice was to set a minimum age requirement, normally that of majority, whereby States automatically excluded from the right to vote all underage citizens (although assessed individually, several minors could be found mature enough to participate in public affairs ). The objective was to ensure that only citizens capable of assessing the consequences of their decisions, capable of making conscious and judicious decisions and vested with other rights linked to the age of majority, should participate in public affairs.", "26. The exclusion from the right to vote of persons under guardianship pursued the same legitimate aim. These persons, although adults, lacked the capacity to manage their affairs, including the exercise of their right to vote, owing to their mental state, unsound mind or pathological addiction. When assessing whether to place the applicant under guardianship, the District Court factored into its decision the applicant's resultant exclusion from the right to vote, pursuant to the constitutional rule disenfranchising those citizens who were incapable of assessing the consequences of their decisions or of making conscious or judicious decisions.", "27. Furthermore, in the Government's view, the prohibition complained of was in compliance with the Venice Commission's Opinion no. 190/2002 (see paragraph 16 above) and cannot therefore be considered disproportionate, all the more so since the applicant's right to vote would be statutorily restored if his placement under guardianship was rescinded at one of the periodical judicial reviews of his condition, or if a motion of the applicant to the same end succeeded in view of his improved mental status.", "b. The applicant", "28. The applicant accepted in principle that the restriction in question pursued a legitimate aim, as suggested by the Government ( see paragraphs 25 and 26 above), without subscribing to the view that people under guardianship in general could not make the responsible choices required for participation in elections. However, he argued that States should enjoy a narrow margin of appreciation in the matter, essentially because any exclusion of people with disabilities from public life must be subject to scrutiny as to whether it was compatible with relevant international human rights requirements, particularly where there had been no substantive debate at the domestic level on the appropriateness of the measure. He added that, with regard to the voting rights of people with disabilities, the historical or political specifics of particular electoral systems played no role.", "29. The applicant also submitted that the restriction in question affected 0.75% of the Hungarian population of voting age, which was a substantial group. In reply to the Government's argument in paragraph 25 above, he emphasised that there were important distinctions between minors and people with disabilities, the most significant being that, while an individual assessment of the maturity of all minors would be an unreasonable burden on the authorities, the same could not be said about the fitness to vote of adults under guardianship, whose status was in any event determined in individual judicial proceedings.", "30. He further argued that the judicial decision resulting in his placement under guardianship had not been preceded by any particular scrutiny establishing a connection between his mental ailment and his capacity to vote. In his view, there was indeed no such connection, since his condition in no way impeded his capacity to orient himself in political matters. The absence of such scrutiny could be explained by the fact that, in any event, the District Court had no discretion in this regard, the restriction being directly prescribed by the Constitution. This was different from the legislation of several Member States of the Council of Europe including Germany, Austria, Switzerland, France, Italy, Sweden and Spain, where persons under partial guardianship could vote.", "31. As regards international law, the applicant submitted, in reply to the Government's argument in paragraph 27 above, that Opinion no. 190/2002 was in fact silent on the issue of whether persons under guardianship could be excluded from the right to vote, but this silence could not be interpreted as permitting a blanket and automatic prohibition on all persons under guardianship. He drew attention to Principle 3.2 of Recommendation R(99)4 (see paragraph 15 above) and Articles 12 and 29 of the CRPD (see paragraph 14 above).", "32. The applicant further rejected as outdated the Government's approach according to which all persons with intellectual and psycho-social disability, placed under guardianship, were incapable of independent decision-making. In his view, modern legislation accepted that the decision-making capacity of people with intellectual or mental disabilities should be recognised as much as possible, especially in the field of the right to vote. This approach was reflected in trends in international law, such as the CRPD (see paragraph 14 above). If one were to accept that a blanket and automatic prohibition on the right to vote of people under guardianship was justified because they were, based on their legal status, unable to make conscious and judicious decisions and were unfit to vote, then a large class of citizens would be deprived of the protection provided by Article 3 of Protocol No. 1, without due consideration given to their individual circumstances. This was incompatible with the Court's case-law on the matter (see Hirst v. the United Kingdom (no. 2 ) [GC], no. 74025/01, ECHR 2005 ‑ IX ).", "33. Lastly, the applicant submitted that the impugned restriction could be replaced by a less restrictive alternative, such as allowing the courts to address this particular issue in guardianship proceedings or establishing a separate procedure with a view to assessing the fitness to vote of a person under guardianship.", "c. The third party", "34. The intervener emphasised that the prohibition in question was not only at variance with Recommendation R(2006)5 (see paragraph 17 above), but was also not in compliance with Articles 12 and 29 of the CRPD (see paragraph 14 above), which was the first legally binding instrument in international law guaranteeing the comprehensive protection of the rights of persons with disabilities. This convention, signed by the European Community on 30 March 2007, represented the practice of European States which should be considered when interpreting Article 3 of Protocol No. 1.", "d. The applicant's comments on the third-party intervention", "35. The applicant agreed with the intervener that the rights under the Convention of those with disabilities should be interpreted in the light of the CRPD (see paragraph 14 above). He considered himself mentally disabled and, as such, should benefit from the protection afforded by the CRPD. The restriction imposed on him is incompatible with the CRPD's spirit and text, in particular its Articles 12 and 29.", "2. The Court's assessment", "a. General principles", "36. The Court refers to its case-law in the matter, as outlined in the judgment of Hirst v. the United Kingdom (no. 2) [GC], (op.cit.):", "“57. [T]he Court has established that [Article 3 of Protocol No. 1] guarantees individual rights, including the right to vote and to stand for election (see Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A no. 113, pp. 22-23, §§ 46-51). ...", "58. The ... rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law ...", "59. ... [T]he right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion. ... Universal suffrage has become the basic principle (see Mathieu-Mohin and Clerfayt, cited above, p. 23, § 51, citing X v. Germany, no. 2728/66, Commission decision of 6 October 1967, Collection 25, pp. 38-41).", "60. Nonetheless, the rights bestowed by Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations and Contracting States must be allowed a margin of appreciation in this sphere.", "61. ... The Court reaffirms that the margin in this area is wide (see Mathieu-Mohin and Clerfayt, cited above, p. 23, § 52, and, more recently, Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I; see also Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV, and Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II). ...", "62. It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Mathieu-Mohin and Clerfayt, p. 23, § 52). In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. For example, the imposition of a minimum age may be envisaged with a view to ensuring the maturity of those participating in the electoral process or, in some circumstances, eligibility may be geared to criteria, such as residence, to identify those with sufficiently continuous or close links to, or a stake in, the country concerned (see Hilbe v. Liechtenstein (dec.), no. 31981/96, ECHR 1999-VI, and Melnychenko v. Ukraine, no. 17707/02, § 56, ECHR 2004-X). Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates. Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (see, mutatis mutandis, Aziz v. Cyprus, no. 69949/01, § 28, ECHR 2004-V).”", "b. Application of those principles to the present case", "37. The Court will therefore determine whether the measure in question pursued a legitimate aim in a proportionate manner having regard to the principles identified above.", "(i) Legitimate aim", "38. The Court points out that Article 3 of Protocol No. 1 does not, like other provisions of the Convention, specify or limit the aims which a restriction must pursue and that a wide range of purposes may therefore be compatible with Article 3. The Government submitted that the measure complained of pursued the legitimate aim of ensuring that only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs (see paragraphs 25 and 26 above). The applicant accepted this view (see paragraph 28 above) and the Court sees no reason to hold otherwise. It is therefore satisfied that the measure pursued a legitimate aim.", "(ii) Proportionality", "39. The Court notes that the restriction in question does not distinguish between those under total and those under partial guardianship (see paragraph 11 above), and is removed once guardianship is terminated (see the Government's submission in paragraph 27 above, not disputed by the applicant). However, it observes the applicant's assertion in paragraph 29 above, not refuted by the Government, that 0.75% of the Hungarian population of voting age is concerned by disenfranchisement on account of being under guardianship in a manner which is indiscriminate. It finds this to be a significant figure, and it cannot be claimed that the bar is negligible in its effects.", "40. The Government argued, relying on the margin of appreciation, that it must be permissible for the legislature to establish rules ensuring that only those who are capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs.", "41. The Court accepts that this is an area in which, generally, a wide margin of appreciation should be granted to the national legislature in determining whether restrictions on the right to vote can be justified in modern times and, if so, how a fair balance is to be struck. In particular, it should be for the legislature to decide as to what procedure should be tailored to assessing the fitness to vote of mentally disabled persons. The Court observes that there is no evidence that the Hungarian legislature has ever sought to weigh the competing interests or to assess the proportionality of the restriction as it stands.", "42. The Court cannot accept, however, that an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties, falls within an acceptable margin of appreciation. Indeed, while the Court reiterates that this margin of appreciation is wide, it is not all-embracing ( Hirst v. the United Kingdom (no. 2) [GC], op. cit., § 82 ). In addition, if a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, such as the mentally disabled, then the State's margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question (cf. also the example of those suffering different treatment on the ground of their gender - Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 78, Series A no. 94, race - D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 182, ECHR 2007 ‑ ..., or sexual orientation - E.B. v. France [GC], no. 43546/02, § 94, ECHR 2008 ‑ ... ). The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice may entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs (cf. Shtukaturov v. Russia, no. 44009/05, § 95, 27 March 2008).", "43. The applicant in the present case lost his right to vote as the result of the imposition of an automatic, blanket restriction on the franchise of those under partial guardianship. He may therefore claim to be a victim of the measure. The Court cannot speculate as to whether the applicant would still have been deprived of the right to vote even if a more limited restriction on the rights of the mentally disabled had been imposed in compliance with the requirements of Article 3 of Protocol No. 1 (see mutatis mutandis Hirst v. the United Kingdom (no. 2), op.cit, § § 48 to 52).", "44. The Court further considers that the treatment as a single class of those with intellectual or mental disabilities is a questionable classification, and the curtailment of their rights must be subject to strict scrutiny. This approach is reflected in other instruments of international law, referred to above (paragraphs 14-17). The Court therefore concludes that an indiscriminate removal of voting rights, without an individualised judicial evaluation and solely based on a mental disability necessitating partial guardianship, cannot be considered compatible with the legitimate grounds for restricting the right to vote.", "There has accordingly been a violation of Article 3 of Protocol No. 1 to the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "45. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "46. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.", "47. The Government contested this claim.", "48. The Court considers that the applicant must have suffered some non-pecuniary damage and awards him, on an equitable basis, EUR 3,000 under this head.", "B. Costs and expenses", "49. The applicant also claimed EUR 7,500 for the costs and expenses incurred before the domestic authorities and the Court. This sum corresponds to 75 hours of legal work, according to the time-sheet submitted, billable by his representative and charged at an hourly rate of EUR 100.", "50. The Government contested this claim.", "51. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5 ,000 covering costs under all heads.", "C. Default interest", "52. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "3. The first applicant was born in 1966. He lives in Frederiksberg. The second applicant was born in 1987. He lives in Greve. The applicants were represented by Mr Christian Dahlager, a lawyer practising in Copenhagen.", "4. The Government were represented by their Agent, Mr Michael Braad, from the Ministry of Foreign Affairs, and their Co-Agent, Mrs Nina Holst-Christensen, from the Ministry of Justice.", "5. The facts of the case, as submitted by the parties, may be summarised as follows.", "6. The first applicant was declared legally incompetent to manage his financial and personal affairs by the Copenhagen City Court ( Københavns Byret ) on 20 March 1984, as the conditions for declaring him legally incompetent under sections 2(1)(i) and 46 of the then applicable Act on Legal Competence ( myndighedsloven ) and part 43 of the Administration of Justice Act ( retsplejeloven ) were found to have been met.", "7. In 1996, the Act on Legal Competence was replaced by the Guardianship Act ( værgemålsloven ), which distinguished between (i) persons who under the Act’s section 5 were subject to guardianship but remained legally competent, and (ii) persons who were both subject to guardianship under section 5 and had been deprived of their legal capacity under section 6. Only those who had been deprived of their legal capacity under section 6 were to be considered legally incompetent.", "8. The second applicant was placed under financial guardianship and deprived of his legal capacity by order of the District Court of Roskilde ( Retten i Roskilde ) on 23 March 2009. The District Court gave the following reasoning:", "“On the basis of the [submitted] medical certificate, it is considered a fact that [the second applicant] is unable to manage his financial affairs because of mental disability, for which reason he requires financial guardianship and requires to be deprived of his legal capacity in order to prevent him from incurring more debt.", "Accordingly, the conditions for financial guardianship set out in section 5(1) of the Guardianship Act and the conditions for deprivation of legal capacity set out in section 6(1) of the Guardianship Act have been met. For that reason, an order for financial guardianship and deprivation of legal capacity is granted.”", "9. Under section 29 of the Constitution, and section 1 of the Danish Act on Parliamentary Elections, persons who were legally incompetent did not have the right to vote in general elections.", "10. Consequently, the applicants were not entitled to vote, inter alia, in the parliamentary elections that took place on 18 June 2015.", "11. By a statutory amendment (Act no. 391 of 27 April 2016), persons who were legally incompetent were given the right to vote in European Parliament elections and in local and regional elections, but not in national parliamentary elections.", "12. The applicants, joined by two other persons, instituted proceedings before the Danish courts, claiming that they had wrongfully been denied the right to vote in the parliamentary elections on 18 June 2015. They relied, inter alia, on Article 3 of Protocol No. 1 to the Convention, both taken alone and in conjunction with Article 14 of the Convention.", "13. The Danish Ministry of Social Affairs and the Interior ( Social- og Indenrigsministeriet ), against whom the above-mentioned proceedings were brought, contested the claims.", "14. Before the High Court of Eastern Denmark ( Østre Landsret ), a written statement submitted by the first applicant was read out. According to that statement, as read out by the first applicant’s mother:", "“He suffered brain damage after being immunised during his first year [of life]. He currently lives at the Egmont folk high school [ Højskolen ] in Hou. He is able to write with [the help of a third party supporting his] hand and wrote the statement because, unfortunately, he was not able to travel from Jutland to attend the trial hearing. For many years, he has had to share a single vote in general elections with his mother, who is his guardian. They have not always had the same perception of the political landscape. It is humiliating for him not to have the right to cast his own vote, and he would therefore be very pleased if judgment were to be delivered in his favour. According to his papers, he was deemed to be unteachable. However, neuropsychologists and occupational therapists have now been persuaded [that he has some] intellect. He asks for justice.”", "15. Before the High Court, the second applicant stated:", "“He lives in Greve in his own flat, which is part of a group home. A mentor comes every Wednesday to help him clean, do grocery shopping and read his mail. He is thirty-five years old [sic]. He works on the Glad Foundation reception desk every day from 8 a.m. until usually 2 p.m. or 3 p.m. There are always two employees at work on the reception desk, and on Fridays there are three. He felt sad and disappointed about not being allowed to vote in the general elections in June 2015, when everybody else was allowed to. He feels like an outcast from society. He reads the Metroexpress newspaper and is interested in politics. He watches the TV2 news before going to work, and he watches the “TV-Avisen” news on the DR1 channel in the evening. He was deprived of his legal capacity because it is difficult for him to manage his financial affairs. He requested a guardian himself. He asked his mentor to organise the [relevant] paperwork that had to be submitted to the State Administration ( Statsforvaltningen ). Later the case was heard in court.”", "16. In its judgment of 29 June 2017, the High Court dismissed the claim. The High Court gave the following reasoning:", "“...The provisions of the Constitution [regarding the right to vote] (previously section 35 and section 30, and now section 29) have continuously been construed by the legislature to mean that persons deprived of their legal capacity under section 2 and section 34 of the former Act on Legal Competence and, since the effective date of the Guardianship Act, under section 6 of the Guardianship Act, do not have the right to vote in general elections. This understanding also seems to be supported to a predominant extent in printed legal literature on the subject.", "The High Court concurs with this understanding of section 29 of the Constitution and finds, without taking into account the significance of Denmark’s international obligations, that there is no basis for a different interpretation of the provision.", "...", "Accordingly, and since the High Court finds that the provisions of the international conventions acceded to by Denmark and relied upon by the plaintiffs and the intervener do not imply that the very limited number of persons deprived in full of their legal capacity by a court order under section 6 of the Guardianship Act, but who otherwise meet the conditions for suffrage in general elections, also have an absolute and unconditional right to vote in general elections, and since such legal status is not recognised in the judgments of the Court relied upon by the parties and the intervener, the High Court finds for the Ministry of [Social] Affairs and the Interior.”", "17. The applicants appealed against the judgment to the Supreme Court, which by a judgment of 18 January 2018, upheld the decision of the High Court. The Supreme Court gave the following reasoning:", "“The right to vote (claims 1 and 2)", "Under section 29 of the Constitution, persons declared ‘legally incompetent’ do not have the right to vote in general elections. For the reasons given by the High Court, the Supreme Court concurs with the view that persons deprived of their legal capacity under section 6 of the Guardianship Act must be considered legally incompetent within the meaning of the Constitution, for which reason they do not have the right to vote in general elections. Section 1 of the Parliamentary Elections Act is worded accordingly.", "Notwithstanding Denmark’s international obligations, the Supreme Court cannot allow the appellants’ arguments that section 1 of the Parliamentary Elections Act is inapplicable and that they had the right to vote in the 2015 general election. The Supreme Court therefore concurs with the judgment delivered by the High Court in favour of the Ministry of [Social] Affairs and the Interior as regards claims 1 and 2.", "Entitlement to compensation (claim 3)", "The question is now whether the appellants’ rights under, in particular, the European Convention for the Protection of Human Rights and Fundamental Freedoms were violated and, if so, whether the appellants are entitled to compensation.", "Under Article 3 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Contracting States undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.", "According to the case-law of the European Court of Human Rights, this provision guarantees individuals the right to vote and to stand for election, but this right is not absolute, and the Contracting States must be allowed a margin of appreciation in that sphere – see in this respect, inter alia, paragraph 115 of the judgment delivered on 16 March 2006 in Ždanoka v. Latvia (application no. 58278/00) and paragraphs 57 and 62 of the judgment delivered on 6 October 2005 in Hirst v. the United Kingdom (no. 2). It furthermore appears from those judgments that restrictions on the right to vote should not automatically adhere to the same criteria as those applied with regard to interference with other Convention rights; that interference must be necessary in a democratic society. However, restrictions on the right to vote must not be arbitrary or disproportionate, or thwart the free expression of the people in the choice of the legislature. When determining whether a restriction on the right to vote is compatible with the Convention, the European Court of Human Rights takes into account whether the restriction pursues a legitimate aim and whether it is proportionate to that aim.", "In the judgment of 20 May 2010 in Alajos Kiss v. Hungary, which concerned a provision of the Hungarian Constitution providing that persons placed under total or partial guardianship did not have the right to vote, the European Court of Human Rights was satisfied that the restriction pursued a legitimate aim. That aim was to ensure that only citizens capable of assessing the consequences of their decisions and of making conscious and judicious decisions should participate in public affairs. The European Court of Human Rights found, however, that the Hungarian measure was disproportionate, for which reason it constituted a violation of Article 3 of Protocol No. 1. In making that assessment, the European Court of Human Rights took into account the fact that the Hungarian Constitution did not distinguish between persons under total and persons under partial guardianship, and that there was no evidence that the competing interests had been weighed in order to assess the proportionality of the restriction. It furthermore appears from the judgment that 0.75% of the Hungarian population of voting age had been disenfranchised on account of being under guardianship, that the European Court of Human Rights considered that that was a significant figure, and that it could not be claimed that the restriction on the right to vote was negligible in its effects. The European Court of Human Rights found that the absolute disenfranchisement of all persons under partial guardianship without due consideration being given to [the degree of] their mental disability did not fall within an acceptable margin of appreciation, referring, inter alia, to the fact that the margin of appreciation allowed the Contracting States is substantially narrower if disenfranchisement applies to a particularly vulnerable group in society and that weighty reasons are required for such disenfranchisement. When the applicant lost his right to vote as a consequence of the automatic disfranchisement imposed, without access to any remedy, on persons under partial guardianship, he suffered a violation, for which reason the European Court of Human Rights did not speculate as to whether the applicant would still have been deprived of the right to vote even if a more limited restriction on the rights of the mentally disabled had been imposed, in line with the requirements of Article 3 of Protocol No. 1. The European Court of Human Rights also said that the treatment of those with intellectual or mental disabilities as a single class constituted a questionable classification and that the curtailment of their rights must be subject to strict scrutiny. The indiscriminate removal of voting rights without an individualised judicial evaluation and solely on the basis of a mental disability necessitating partial guardianship could therefore not be considered to constitute legitimate grounds for restricting the right to vote.", "The Alajos Kiss judgment is the only judgment on disenfranchisement imposed as a consequence of guardianship, except for the judgments delivered by panels of three judges on 23 September 2014 in Gajcsi v. Hungary and on 21 October 2014 in Harmati v. Hungary, in which cases the Hungarian government did not dispute the alleged violation of the Convention.", "The Supreme Court finds that the purpose of disenfranchising legally incompetent persons under section 29 of the Constitution falls within the framework of a measure deemed to pursue a legitimate aim, as set out by the European Court of Human Rights in Alajos Kiss. The question is now whether the requirement of proportionality has been met.", "The first condition that must be met in order to deprive a person of his or her legal capacity under section 6 of the Guardianship Act is that the person must be unable to manage his or her own affairs owing to mental unsoundness or mental disability, etc. (see section 5), and the second condition is that a legal incapacitation order be necessary to prevent the person in question from exposing his or her assets, income or other financial interests to the risk of major loss, or to prevent financial exploitation. Persons subject to guardianship solely under section 5 are legally competent, whereas persons also deprived of their legal capacity under section 6 are legally incompetent. It follows from section 8(1) that a person cannot be deprived of his or her legal capacity if his or her interests can be sufficiently guarded through guardianship under section 5. As opposed to persons who are only subject to guardianship under section 5, persons deprived of their legal capacity under section 6 need more than a guardian to guard their interests; they are often persons who act contrary to their own best interests or risk being exploited by others.", "Under section 10, a legal incapacitation order must be quashed if the prescribed conditions are no longer met. The legal incapacitation order in respect of [one of the two additional persons who joined the proceedings] has been quashed, in accordance with that provision, and he is now solely subject to guardianship under section 5 and consequently now has the right to vote in general elections.", "Accordingly, strict requirements must be met in order to deprive a person of his or her legal capacity and to maintain in effect such a legal incapacitation order, and such requirements are closely related to the issue of whether the person in question is able to foresee the consequences of his or her decisions and to make conscious and judicious decisions.", "The Guardianship Act, which was enacted in 1996, reduced the group of persons declared legally incompetent and consequently disenfranchised in general elections as compared with the group similarly disenfranchised under the former Danish Act on Legal Competence ( myndighedsloven ). In 1990, just under 3,300 persons had been declared legally incompetent, and in December 2017 about 1,850 persons had been deprived of their legal capacity.", "Danish Act no. 391 of 27 April 2016 gave persons deprived of their legal capacity the right to vote in European Parliament elections and in local and regional elections. It appears from the preparatory notes to the Act that it was intended to bestow upon this group of individuals the right to vote to the extent possible under the Constitution.", "The restriction on the right to vote set out in section 29 of the Constitution therefore reflects an arrangement [ ordning ] that is considerably narrower than the Hungarian measure deemed by the European Court of Human Rights in respect of Alajos Kiss to be disproportionate.", "The Supreme Court finds that it follows from that judgment that an arrangement imposing a more limited restriction on the right to vote of persons suffering from a mental disability as compared with the then applicable Hungarian measure might be compatible with Article 3 of Protocol No. 1. It cannot be inferred from the judgment that in order for a restriction on the right to vote of persons deprived of their legal capacity to be considered compatible with Article 3 of Protocol No. 1, a specific and individual assessment must always have been made of the relevant person’s mental capacity to exercise the right to vote. The Supreme Court observes in this respect, as did the High Court, that a specific and individual assessment of whether a person’s mental capacity is sufficient [for that person] to exercise the right to vote may give rise to concern. The case-law of the European Court of Human Rights concerning restrictions on the right to vote and on eligibility to stand for election for reasons other than mental disability also supports the view that a specific and individual assessment is not always required to deprive a person of his or her right to vote – see in this respect paragraphs 112 and 114 of the judgment delivered in Ždanoka v. Latvia and paragraphs 98, 99 and 102 of the judgment delivered on 22 May 2012 in Scoppola v. Italy (no. 3).", "The Supreme Court also observes that it follows from the legislation on elections and the constitutions of a number of other European countries that persons deprived of their legal capacity do not have the right to vote [it appears from the transcript that the Supreme Court referred to a report by the European Union Agency for Fundamental Rights of 21 May 2014 “The right to political participation for persons with disabilities: human rights indicators”, see paragraph 71 below].", "Against this background, the Supreme Court finds no basis for ruling that the arrangement set out in section 29 of the Constitution is contrary to Article 3 of Protocol No. 1 or to Article 14 read in conjunction with Article 3 of Protocol No. 1. The Supreme Court also finds, as was also found by the High Court, that there is no basis for ruling that section 29 of the Constitution is contrary to the Convention on the Rights of Persons with Disabilities.", "For this reason alone, the appellants are not entitled to compensation.”", "18. The Supreme Court judgment attracted renewed focus among politicians on the situation of persons who were both subject to guardianship and had been deprived of their legal capacity, and who did not have the right to vote in general elections. Consequently, several parties that were not government parties at that time introduced private members’ bill no. B 71, which sought that fewer persons subject to guardianship should be excluded owing to their disability from the right to vote in general elections. At the first reading of the bill in Parliament, the then Minister of Justice expressed the view that the bill served a commendable purpose, and he promised to examine the possibility of excluding fewer persons subject to guardianship from the right to vote in general elections. After the reading of the bill, a report was published saying that the Parliamentary Committee on Social Affairs, the Interior and Children ( Social-, Indenrigs- og Børneudvalget ) looked forward to discussing with the Government the outcome of the analytical work launched by the Government.", "19. In the light of this report, the Ministry of Justice carried out an analysis of the rules within this field. On 3 October 2018, the Ministry of Justice concluded, on the basis of that analysis, that section 29 of the Constitution did not constitute a bar to an amendment to or repeal of the guardianship rules aimed at allowing some of those persons who had been deprived of their legal capacity to again be allowed to manage their own assets in full or in part. The opinion of the Ministry of Justice was that a person subject to guardianship who was barred only in part from managing his or her assets was not “legally incompetent” within the meaning of the Constitution and could therefore retain the right to vote in general elections.", "20. Against that background, the then Minister of Justice introduced a bill to amend the Guardianship Act and the Parliamentary Elections Act; that amendment was passed by Parliament on 20 December 2018 and entered into force on 1 January 2019. The following appears from the explanatory notes to the bill:", "“The first purpose of the bill is to introduce the possibility of depriving a person [only] partially of his or her legal capacity, one of the consequences being that such a person will retain the right to vote in general elections.", "Therefore, it is the opinion of the Government that, according to the principles of democracy, the group of persons with suffrage in elections to a body elected by the people ought to be as wide as possible. The Government wishes to bestow the right to vote in nationwide elections in Denmark upon as many citizens as possible – [including] persons subject to guardianship – within the framework of the Constitution.", "...", "It appears from paragraph 2.4 of the report that as long as a group of persons are deprived of the right to manage their assets, it is a consequence of section 29 of the Constitution that those persons are barred from voting in general elections.", "It therefore requires an amendment to the Constitution if the deprivation of a person’s legal capacity is not to lead to disenfranchisement.", "However, section 29 of the Constitution is not a bar to an amendment to or repeal of the guardianship rules to the effect that some of the persons deprived of their legal capacity today would again be allowed to manage their own assets in full or in part.", "However, in the opinion of the Ministry of Justice, such an arrangement must not have as a consequence [the scenario] that persons in need of the protection afforded by the deprivation of their legal capacity would be left in a situation in which they risked being exposed to financial exploitation or ... a potential risk of losing their assets.", "It is observed that the group of around 1,900 persons who have been deprived of their legal capacity is a particularly vulnerable population group.", "It is the opinion of the Ministry of Justice that it would constitute a major impairment of the protection of those persons if the possibility of depriving them of their legal capacity were to be abolished entirely. In such a case, those persons would no longer be prevented from entering into legal transactions and incurring financial commitments, even though they are not able to understand the consequences, thereby exposing their assets to risk. The relevant persons might also risk financial exploitation.", "Therefore, the Ministry of Justice cannot recommend the full abolition of the possibility of depriving them of their legal capacity. ...”", "21. Accordingly, it was the assessment of the Ministry of Justice that the proposed possibility of the partial deprivation of legal capacity was most compatible with the aim of allowing as many citizens as possible the right to vote while protecting a small group of citizens in need of such protection by depriving them of their legal capacity.", "22. In the light of the above, the statutory amendment introduced the possibility of the partial deprivation of legal capacity. Thereby it became possible to limit an order restricting a person’s legal incapacity to comprise only particular assets or affairs, such as credit purchase transactions or taking out loans, or to specifying a maximum amount of agreements into which such a person could enter. Persons deprived only partially of their legal capacity remain legally competent and thus retain the right to vote in general elections. Only persons fully deprived of their legal capacity do not have the right to vote in general elections.", "23. The first applicant lodged an application with a district court for a change to his guardianship status following the statutory amendment. On 20 May 2019, the order regarding his legal incapacitation was quashed in its entirety, and he was consequently granted the right to vote in general elections.", "24. The second applicant also lodged an application for a change to his guardianship status. He is still subject to guardianship, but by a district court order of 9 November 2019, he was only partially deprived of his legal capacity pursuant to section 6(2)(2) of the Guardianship Act. Consequently, he was granted the right to vote in general elections." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "The Constitution", "25. The fundamental rules on the right to vote in general elections are set out in section 29 of the Constitution, which, in so far as relevant, reads as follows:", "Section 29", "“(1) Any person who is a Danish national, has a permanent home in the realm and has reached the age to qualify for suffrage, as provided in subsection (2) hereof, shall have the right to vote in general elections unless he or she has been declared legally incompetent. It must be laid down by statute to what extent conviction [of a crime] and public assistance amounting to poor relief within the meaning of the law will lead to disfranchisement.”", "26. The provision was first introduced in the Constitutional Act, which was enacted on 5 June 1849. The wording of the part of the provision stipulating that persons declared legally incompetent do not have the right to vote was revised in 1915 and 1953.", "27. The following overview can be made of the development of the provision.", "28. In 1849, section 35 set out:", "“Any man of good repute and Danish nationality has the right to vote in general elections when he attains the age of 30, unless he:-", "[...]", "(c) is barred from managing his [own] property”.", "29. In 1915, section 30 set out:", "“Any man or woman of Danish nationality has the right to vote in general elections when he or she has attained the age of 25 and has a permanent home in Denmark, unless he or she:", "...", "(c) is barred from managing his or her [own] property owing to bankruptcy or a declaration of legal incompetence.”", "30. In 1953, as stated above, the first sentence of section 29(1) set out:", "“Any person who is a Danish national, has a permanent home in the realm and has reached the age qualifying [him or her] for suffrage, as provided in subsection (2) hereof, shall have the right to vote in general elections, unless he or she has been declared legally incompetent ...”", "31. Section 35 of the first Danish Constitution of June 1849 set out the qualifications for suffrage. The conditions had been extensively discussed by the Constitutional Committee. One of the subjects discussed was whether suffrage was to be conditional on levels of income or assets (the so-called “census requirements”). By contrast with the census requirements, a less controversial issue was that of whether legally incompetent persons were to be barred from voting. A.F. Krieger, the spokesman of the Constitutional Committee, said in this respect (see the Report on the Parliamentary Debate, vol. 2, column 2184f):", "“There is indeed general agreement that legally incompetent persons, children, women and criminals should be barred from voting.”", "32. The 1915 amendment to the Constitution (see Act no. 161 of 5 June 1915) added the stipulation that whenever a person was barred from managing his or her property it should be “owing to bankruptcy or a declaration of legal incompetence”. The preparatory notes to the provision (see the Official Report on Parliamentary Proceedings (Rigsdagstidende ) 1914-15, column 3937) explained that the wording “owing to bankruptcy or a declaration of legal incompetence” had been added in order to ensure the suffrage of married women. The only reason for the amendment was therefore that women would qualify for suffrage even if they were barred from managing their own property because they had married.", "33. The provision was given its current wording by the 1953 amendment to the Constitution (see Act no. 169 of 5 June 1953). As regards the reason for this amendment, according to which it is a condition for suffrage that a person has not been “declared legally incompetent”, the preparatory notes read as follows (see in this respect the explanatory notes to section 29 in Report No. 66/1953 issued by the 1946 Commission on the Constitution):", "“There is consensus that bankruptcy should no longer be considered grounds for exclusion. However, it is maintained that a declaration of legal incompetence will continue to lead to disenfranchisement. The bill does not combine this with the requirement that a person declared legally incompetent must have been barred from managing his or her [own] property, as does the current Constitution. Under the Act on Legal Competence, such a restriction on the right to manage one’s property is always linked to a declaration of legal incompetence.”", "34. It thus appeared from the preparatory notes that no amendment was contemplated to the condition that a person declared legally incompetent would also become disenfranchised, since a restriction on the right to manage one’s own property was an automatic consequence of a declaration of legal incompetence under the former Act on Legal Competence.", "35. The procedure for enacting amendments to the Constitution is set out in section 88 of the Constitution, which reads as follows:", "“If Parliament passes a bill on a new constitutional provision and the Government wishes to proceed with the matter, a general election must be called. If the bill is passed without amendment by the Parliament that assembles after the general election, a referendum must be held on whether to approve or reject the bill within six months of its final passage. Detailed rules on the referendum process must be laid down by statute. If a majority of the persons casting a vote in the referendum and at least 40% of the electorate have voted in favour of the bill, as passed by Parliament, and if the bill receives royal assent, it shall form an integral part of the Constitution.”", "The process of preparing and enacting an amendment to the Constitution is a time-consuming one. Moreover, history has shown that it is difficult to reach the required voter turnout in a referendum on an amendment to the Constitution.", "The Parliamentary Elections Act", "36. Since the enactment of the 1849 Constitution, the conditions for suffrage laid down by the Constitution have been implemented by the enactment of an elections statute. Section 1 of the Parliamentary Elections Act reads as follows:", "Section 1", "“Any person who is a Danish national, has attained the age of eighteen and has a permanent home in the realm shall have the right to vote in general elections, unless he or she is legally incompetent.”", "37. The following overview can be made of the development of the provision.", "38. In 1849, section 5 set out:", "“Therefore, no person subjected to guardianship or whose property is subject to insolvency or bankruptcy proceedings shall have the right to vote.”", "39. In 1915, section 2 set out:", "‘No person shall have the right to vote if he or she:", "...", "(c) is barred from managing his or her property owing to bankruptcy or a declaration of legal incompetence.’", "40. In 1953, section 1(1) set out:", "“Any person who is a Danish national, is of the age to qualify for suffrage, as provided for in subsection (2) hereof, and has a permanent home in the realm shall have the right to vote in general elections unless he or she:-", "[...]", "(b) is barred from managing his or her property owing to a declaration of legal incompetence.”", "41. In 1965, section 1(1) set out:", "“Any person who is a Danish national, has attained the age of 21 and has a permanent home in the realm shall have the right to vote in general elections unless he or she has been declared legally incompetent.”", "42. In 1997, section 1 set out:", "“Any person who is a Danish national, has attained the age of 18 and has a permanent home in the realm shall have the right to vote in general elections unless he or she is subject to guardianship combined with deprivation of legal capacity under section 6 of the Guardianship Act.”", "43. In 2019, section 1, set out:", "“Any person who is a Danish national, has attained the age of 18 and has a permanent home in the realm shall have the right to vote in general elections unless he or she is legally incompetent.”", "44. The 1849 Elections Act of 16 June 1849 implemented section 35 of the Constitution, under which the right to vote was subject to “the right to manage one’s own property”. It followed from section 5 of the Elections Act that persons “subject to guardianship” did not have the right to vote. According to A.F. Krieger, the reason for the different wordings used was that the words used in the Constitution could have “a more specific meaning” (see the Report on the Parliamentary Debate, vol. 2, column 3407).", "45. In connection with the 1915 amendment to the Constitution, the provision of the Elections Act on suffrage was worded to render it identical with the wording of the constitutional provision on suffrage, as enacted (see Act no. 142 of 10 May 1915).", "46. The rules on elections to the Rigsdagen, the former parliamentary assembly, were replaced by the Parliamentary Elections Act (Act no. 171 of 31 March 1953) – in connection with the 1953 amendment to the Constitution, by which the Rigsdagen was replaced by the Folketinget as the Danish parliamentary assembly. By the enactment of the Parliamentary Elections Act, “bankruptcy” was omitted from the provisions regarding disenfranchisement, as bankruptcy should no longer lead to disenfranchisement, according to the findings of the 1946 Commission on the Constitution (see the explanatory notes to section 1 of the Parliamentary Elections Act provided in Report No. 74 of 2 February 1953 of the Commission on the Elections Act). However, the wording still said that the relevant person must not be “barred from managing his or her [own] property owing to a declaration of legal incompetence”.", "47. The expression “the right to manage one’s [own] property” was removed by a statutory amendment in 1965. Accordingly, this provision was given the same wording as section 29 of the Constitution, the only condition now being that a person must not have been “declared legally incompetent”.", "48. Section 1(1) of the Parliamentary Elections Act retained this wording, except for amendments to the age qualifying citizens for suffrage, until 1997. In 1997, the provision was reworded to say that persons who were both subject to guardianship and who had been deprived of their legal capacity under section 6 of the Guardianship Act did not have the right to vote. The amendment was made in the light of the enactment of the Guardianship Act. The amendment to the Parliamentary Elections Act took into account the fact that the Committee on the Act on Legal Competence had assessed, in particular, the meaning of the wording of the Constitution in the light of the new Guardianship Act.", "49. Section 1 of the Parliamentary Elections Act, as currently worded, came into force on 1 January 2019 (see section 2 of Act no. 1722 of 27 December 2018) to reflect the new possibility to only partially deprive a person of his or her legal capacity. The provision is drafted to the effect that persons declared legally incompetent are disenfranchised, whereas persons deprived only partially of their legal capacity are deemed to be still legally competent and thus have the right to vote in general elections.", "The Guardianship Act", "50. In 1996, the Act on Legal Competence was replaced by the Guardianship Act, which distinguished between (i) persons who under section 5 were subject to guardianship but remained legally competent, and (ii) persons who were subject to guardianship under section 5 and were also deprived of their legal capacity under section 6.", "51. The Guardianship Act defined three kinds of guardianship for adults. Guardianship under section 5 was the standard arrangement. It read as follows:", "Section 5", "“(1) A guardianship order can be made in respect of any person unable to manage his or her own affairs owing to mental unsoundness, including severe dementia, or mental disability or other severe impairment, if necessary.", "(2) A guardianship order can be made in respect of any person who is unsuited to manage his or her own financial affairs owing to illness or other severe decline and who makes a request [for such an order] himself or herself – if necessary instead of appointing a surrogate decision-maker for such a vulnerable adult under section 7.", "(3) A guardianship order can be restricted to financial matters, including specific assets or affairs. Such an order can also be restricted to personal matters, including specific personal affairs.", "(4) Unless otherwise specifically provided, the guardian shall act on behalf of the relevant person in respect of affairs covered by the guardianship order.", "(5) Persons subject to guardianship under this provision are legally competent, unless deprived of their legal capacity under section 6.”", "Accordingly, section 5 of the Guardianship Act allowed for individual guardianship arrangements adapted to individual needs. Persons subject to guardianship under section 5 of the Act could enter into legal transactions on their own, and they had the right to vote in general elections", "52. At the relevant time, section 6 of the Guardianship Act was worded as follows:", "Section 6", "“(1) Persons subject to guardianship over their financial affairs under section 5 can be deprived of their legal capacity, if necessary, to prevent them from exposing their assets, income or other financial interests to the risk of a major loss, or to prevent financial exploitation. The deprivation of a person’s legal capacity cannot be restricted to particular assets or affairs.", "(2) A person deprived of his or her legal capacity is legally incompetent and does not have the right to enter into legal transactions or to manage his or her assets, unless otherwise provided.", "(3) Legal incapacitation orders must be registered (see section 48 of the Registration of Property Act).”", "53. Under section 8 of the Guardianship Act, a guardianship order must be granted on the basis of the principle of implementing the least intrusive measure. One implication is that a person cannot be deprived of his or her legal capacity under section 6 if it is possible to safeguard his or her interests to a sufficient extent through guardianship under section 5.", "54. From the preparatory notes to the Act, it appeared that it was based on Report No. 1247/1993 on Guardianship issued by the Committee of the Ministry of Justice on the Act on Legal Competence ( Myndighedslovudvalget). The report read, in its relevant part, as follows:", "“9.2.2. For the purpose of the Committee’s considerations of concepts and terminology, it was particularly relevant to assess the wording of the Constitution. It is irrelevant whether a person is only declared legally incompetent to manage his or her financial affairs (see section 2 of the current Act on Legal Competence) or also declared legally incompetent to manage his or her personal affairs, see section 46. A declaration of legal incompetence relied upon as grounds for exclusion from the right to vote in pursuance of section 29 of the Constitution is based on the assumption, as is also the condition of having attained the age of majority, that a certain level of mental skills is a prerequisite for suffrage. According to the preparatory notes, it must be assumed that it is the restriction on a person’s right to manage his or her assets (when declared legally incompetent) that gave rise to combining a declaration of legal incompetence with disenfranchisement. It must also be taken into account that the reason for declaring a person legally incompetent under section 2 of the current Act on Legal Competence must extend beyond limited mental faculties or mental capacity, such as bibulousness, bodily deficiency, illness or another infirmity. Moreover, as mentioned above in parts 2 and 4, by no means everyone with limited mental capacity is declared legally incompetent. Against this background, Max Sørensen [ a Danish professor of constitutional law, international law and a judge] mentions that the rational arguments for section 29 of the Constitution are weak and that the provision can only be understood in view of the historical development, as the 1849 Constitution and the 1866 Constitution disenfranchised persons barred from managing their property for the reason that a person who was not deemed able by the legal system to attend to his own financial affairs should not have any influence on the national government either. ...", "...", "9.4.5. As mentioned in paragraph 9.2 above, section 29 of the Constitution on the right to vote is not deemed to constitute a bar to the Committee’s determination of concepts, including the decision not to use the concept of “declared legally incompetent”. However, it must be a consequence of the conditions set out in the Constitution that any person deprived of his or her legal capacity, within the meaning contemplated by the Committee (see section 6 of the draft), or barred from controlling his or her personal affairs, according to the wording of the provision drafted by the dissenting Committee members (see section 6a of the draft), must be disenfranchised under the legislation on elections.”", "55. Subsequent to statutory amendment by Act no. 1722 of 27 December 2018, which entered into force on 1 January 2019, section 6 of the Guardianship Act read as follows:", "Section 6", "“(1) Persons subject to guardianship over their financial affairs under section 5 can be deprived of their legal capacity, if necessary, to prevent them from exposing their assets, income or other financial interests to the risk of a major loss, or to prevent financial exploitation. The deprivation of a person’s legal capacity can be restricted to particular assets or affairs.", "(2) A person deprived of his or her legal capacity under the first sentence of subsection (1) is legally incompetent and does not have the right to enter into legal transactions or to manage his or her own assets, unless otherwise provided. A person partially deprived of his or her legal capacity under the second sentence of subsection (1) is legally competent, but does not have the right to enter into legal transactions or to manage his or her assets to the extent provided.", "(3) Legal incapacitation orders must be registered (see section 48 of the Danish Registration of Property Act [ Tinglysningsloven ])”", "56. Owing to the statutory amendment, it became possible to partially deprive persons of their legal capacity – as opposed to the previous legal situation, in which it had been possible only to fully deprive persons of their legal capacity. One of the consequences of the statutory amendment was that persons who were both subject to guardianship and had been partially deprived of their legal capacity were still legally competent and accordingly entitled to vote in general elections.", "57. The reason for the statutory amendment was the political desire that emerged following the Supreme Court judgment of 18 January 2018 to bestow the right to vote in general elections upon as many citizens as possible, as far as the Constitution allowed.", "58. According to information received from the Agency of Family Law ( Familieretshuset ), which considers applications for the revision of guardianship orders, the Agency had received a total of seventeen applications by 16 September 2019 for changing guardianship orders involving the total deprivation of legal capacity to guardianship orders involving the partial deprivation of legal capacity. Fourteen of those applications have been decided on, and one guardianship order combined with the total deprivation of legal capacity has been changed to an order on guardianship involving the partial deprivation of legal capacity, the consequence being that the relevant person now has the right to vote in general elections. In three cases, the legal incapacitation order has been terminated in its entirety.", "Concerning the right to vote in European Parliament and local and regional elections", "59. Act no. 391 of 27 April 2016 gave persons deprived of their legal capacity (under section 6 of the Guardianship Act) the right to vote in European Parliament elections and in local and regional elections. It appears from the preparatory notes to the Act that it was intended to bestow upon this group of individuals the right to vote to the extent possible under the Constitution. The relevant part of the statutory amendment (Bill no. 130 of 24 February 2016) reads as follows:", "“The Government wishes to bestow the right to vote in nationwide elections in Denmark upon as many citizens as possible within the framework of the Constitution. Accordingly, it is proposed to amend the legislation on elections to allow persons who are [both] subject to guardianship [and have been deprived of] of their legal capacity under section 6 of the Guardianship Act, but who otherwise meet the conditions for suffrage, the right to vote in European Parliament elections and in local and regional elections.", "There has been a demand for some time, including from the Danish Institute for Human Rights, for an amendment to the legislation on elections to allow persons [who are both] subject to guardianship and have been deprived of their legal capacity under section 6 of the Guardianship Act the right to vote in all nationwide elections and referendums in Denmark. Under current law, it is a condition for having the right to vote in all nationwide elections and referendums in Denmark that one is not subject to guardianship combined with deprivation of legal capacity under section 6 of the Guardianship Act.", "It is the assessment of the Government that the Constitution does not make it possible to bestow the right to vote in general elections upon persons deprived of their legal capacity as a consequence of a guardianship order under section 6 of the Guardianship Act. On the other hand, the Constitution cannot be considered to constitute a bar to bestowing the right to vote in local and regional elections and in European Parliament elections upon persons [who are both] subject to guardianship [and have been deprived] of their legal capacity under section 6 of the Guardianship Act. Reference is made to the reply of 17 March 2014 from the Ministry of Justice to question no. 644 (general questions) from the Legal Affairs Committee of the Danish Parliament.", "It furthermore follows from the Constitution that the parliamentary electorate – that is to say persons having the right to vote in general elections – are the ones who are entitled to vote in constitutional referendums.", "In order to bestow upon persons [who are] subject to guardianship [and have been deprived] of their legal capacity under section 6 of the Guardianship Act a more extensive right to vote, it is proposed to bestow upon this group of persons the right to vote in local and regional elections and in European Parliament elections.”", "60. The following appears from the reply of 17 March 2014 from the Minister for Justice to question no. 644 from the Legal Affairs Committee of the Danish Parliament:", "“Question no. 644 (general questions) from the Legal Affairs Committee of the Danish Parliament:", "Is the Minister willing to consider amendments to the Guardianship Act or other compensatory measures in view of the 2012 report by the Danish Institute for Human Rights entitled “Autonomy and Guardianship” ( Selvbestemmelse og værgemål ), which points out on page 49 that “Disenfranchisement as a consequence of guardianship is contrary to the Convention on the Rights of Persons with Disabilities and [to] the ECHR”?", "Answer:", "1. Section 29(1) of the Constitution provides that any person who is a Danish national, has a permanent home in the realm and has attained the age of 18 has the right to vote in general elections unless he or she has been declared legally incompetent.", "As appears from the Report of the Committee on the Act on Legal Competence (Report No. 1247/1993), which formed the basis for the relevant Guardianship Act, it must be assumed on the basis of the preparatory notes to section 29(1) of the Constitution that it is the restriction on a person’s right to manage his or her own assets (when declared legally incompetent) that gave rise to combining a declaration of legal incompetence with disenfranchisement.", "The deprivation of a person’s legal capacity under section 6 of the Guardianship Act is effected in cases in which the guardianship order applies to financial affairs. Therefore, it must be a consequence of section 29 of the Constitution that any person deprived of his or her legal capacity under section 6 of the Guardianship Act will become disenfranchised under the legislation on elections (see in this respect also pp. 156-57 of the Report of the Committee on the Act on Legal Competence). Accordingly, the Constitution does not make it possible to bestow the right to vote in general elections upon persons deprived of their legal capacity because they are subject to guardianship under section 6 of the Guardianship Act.", "2. However, it is the opinion of the Ministry of Justice that the Constitution cannot be considered to constitute a bar to bestowing the right to vote in elections for local councils, regional councils and the European Parliament upon persons subject to guardianship under section 6 of the Guardianship Act. Amendments involving such an extension of the right to vote would have to be implemented by statute. This issue falls within the remit of the Ministry of Economic Affairs and the Interior.", "3. It is the opinion of the Ministry of Justice that there is no basis for assuming – contrary to the findings in the report of the Danish Institute for Human Rights – that the Danish rules on disenfranchisement of persons subject to guardianship under section 6 of the Guardianship Act are contrary to the European Convention on Human Rights.", "In its 2012 report, the Danish Institute for Human Rights refers to the judgment delivered by the European Court of Human Rights on 20 May 2010 in Alajos Kiss v. Hungary (application no. 38832/06). However, it is the assessment of the Ministry of Justice that it is not a consequence of Alajos Kiss that the Danish rules on suffrage and guardianship cannot be maintained, one reason being that that case concerned the national legislation of Hungary, under which any form of guardianship automatically led to disenfranchisement. This is not the case in Denmark, where only the orders on guardianship under section 6 of the Guardianship Act mentioned above will concurrently lead to disenfranchisement. Moreover, Hungary had more lenient rules for issuing guardianship orders than Denmark.", "4. As regards the United Nations Convention on the Rights of Persons with Disabilities, it should be noted that on 20 September 2013, in its communication No. 4/2011, the Committee on the Rights of Persons with Disabilities issued its views (in respect of Zsolt Bujdosó and five others v. Hungary ) concerning the right to vote of persons with intellectual disabilities.", "The Committee on the Rights of Persons with Disabilities said in its communication that it is contrary to the Convention for a State party to exclude persons with intellectual disabilities from suffrage. It would appear that that view applies regardless of whether or not the relevant persons have the mental capacity to vote, as the Committee found that the State party should merely provide specific assistance to such vulnerable persons.", "In the opinion of the Ministry of Justice, the views issued by the Committee on the Rights of Persons with Disabilities give rise to essential questions pertaining to section 29 of the Constitution, which, as mentioned above, provides that any person who is a Danish national, has a permanent home in the realm and has attained the age of 18 has the right to vote in general elections unless he or she has been declared legally incompetent.", "Unlike judgments delivered by the European Court of Human Rights, views issued by the Committee on the Rights of Persons with Disabilities are, however, not binding on Denmark.", "5. Against this background, the Ministry of Justice has not considered any amendment to the Guardianship Act.”", "The historical and political context", "61. The statutory basis for the right to vote in general elections and referendums is section 29 of the Constitution. The possibility of amending section 29 of the Constitution has been regularly considered. At the time of the most recent amendment to the Constitution in 1953, the legislature maintained the position that a declaration of legal incompetence should lead to disenfranchisement. The issue of the franchise of legally incompetent persons was further considered in more detail in connection with the readings and enactment of the Guardianship Act, which came into force in 1996. Most recently, Parliament had a robust debate in 2016 (in respect of a potential amendment to section 29(1) of the Constitution) concerning legally incompetent persons’ right to vote during the readings of the bill that ultimately bestowed upon them the right to vote in elections for the European Parliament and in local and regional elections. It appears from the report of that parliamentary debate that the 2016 Parliament did not have a political majority among its members for a constitutional amendment concerning the right to vote under section 29(1) of the Constitution. Only a small minority of twenty-one MPs from two parties (from a total of 179 MPs) expressed a desire to work towards such an amendment to the Constitution. Such a process is time-consuming, and history has shown that it has been difficult to reach the required voter turnout in referendums, despite the political majority in Parliament for other proposed amendments to the Constitution.", "62. Since 1849, the Elections Act has also continuously attracted political attention and has been adapted, reflecting developments in society, to bestow the right to vote in general elections upon as many persons deprived of their legal capacity as possible.", "63. Upon its enactment in 1996, the Guardianship Act instantly reduced the size of the group of persons who were deemed to be legally incompetent and consequently disenfranchised in general elections. In 1990, just under 3,300 persons had been declared legally incompetent, and in December 2017 about 1,850 persons had been deprived of their legal capacity. An additional purpose of the 2019 amendments to the Guardianship Act and the Parliamentary Elections Act was to reduce the size of the group of persons disenfranchised owing to the deprivation of their legal capacity as far as the Constitution allowed.", "64. It was likewise the purpose of the 2016 amendment, by which the right to vote in elections for the European Parliament and in local and regional elections was bestowed upon persons who had been deprived of their legal capacity, that the right to vote should be bestowed upon this group of persons to the extent possible under the Constitution.", "65. The rules governing suffrage for persons deprived of their legal capacity have thus been considered, discussed and adapted on a regular basis in order to grant the right to vote to the greatest extent possible, as far as the Constitution allowed.", "RELEVANT INTERNATIONAL AND EUROPEAN MATERIAL", "66. The United Nations Convention on the Rights of Persons with Disabilities (the “CRPD”), which was ratified by Denmark on 24 July 2009, provides as follows:", "Article 1 - Purpose", "... “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others.”", "Article 12 - Equal recognition before the law", "“1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.", "2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.", "3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.", "4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests. ...”", "Article 29 - Participation in political and public life", "“States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake to:", "a. Ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by:", "i. Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use;", "ii. Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate;", "iii. Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice;", "b. Promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs, including:", "i. Participation in non-governmental organizations and associations concerned with the public and political life of the country, and in the activities and administration of political parties;", "ii. Forming and joining organizations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels.”", "67. Council of Europe Recommendation R(99)4 of the Committee of Ministers to Member States on Principles Concerning the Legal Protection of Incapable Adults (issued on 23 February 1999) (“Recommendation R(99)4”) provides as follows:", "Principle 3 – Maximum preservation of capacity", "“... 2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so.”", "68. Opinion no. 190/2002 of the European Commission for Democracy through Law (“Venice Commission”) on the Code of Good Practice in Electoral Matters provides as follows:", "I.1. Universal suffrage – 1.1. Rule and exceptions", "d. Deprivation of the right to vote and to be elected:", "“i. provision may be made for depriving individuals of their right to vote and to be elected, but only subject to the following cumulative conditions:", "ii. it must be provided for by law;", "iii. the proportionality principle must be observed; conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them;", "iv. The deprivation must be based on mental incapacity or a criminal conviction for a serious offence.", "v. Furthermore, the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law.”", "69. Council of Europe Recommendation R(2006)5 of the Committee of Ministers to Member States on the Council of Europe Action Plan to Promote the Rights and Full Participation of People with Disabilities in Society: Improving the Quality of Life of People with Disabilities in Europe 2006-2015 (issued on 5 April 2006) provides as follows:", "3.1. Action line No.1: Participation in political and public life", "3.1.3. Specific actions by member states", "“... iii. to ensure that no person with a disability is excluded from the right to vote or to stand for election on the basis of her/his disability; ...”", "70. In its report of 30 October 2014 on Denmark, the United Nations Committee on the Rights of Persons with Disabilities expressed, inter alia, the following concern under the heading “Participation in political and public life” (“Article 29):", "“The Committee is concerned that under the Constitution, the Parliamentary Elections Act and other electoral laws, and the Guardianship Act (section 6), persons under guardianship are not allowed to vote or to stand for election in parliamentary, municipal, regional or European Parliament elections, or referendums. The Committee is also concerned that election materials are reportedly rarely accessible to blind persons or to persons with learning and intellectual disabilities, that polling stations are often not physically accessible, that ballots may not be accessible to blind persons, and that persons under guardianship may not be able to freely choose the kind of voting assistance that they would wish to use.", "The Committee recommends that the State party amend the relevant laws, including the Parliamentary Elections Act and other laws governing municipal, regional and European Parliament elections, so that all persons with disabilities can enjoy the right to vote and stand for election regardless of guardianship or other regimes. It also recommends that the State party ensure, through legislative and other measures, the accessibility of ballots and election materials, and of polling stations, and that it ensure that freely chosen, adequate and necessary assistance is provided in order to facilitate voting by all persons.”", "71. A report by the European Union Agency for Fundamental Rights of 21 May 2014 on “The right to political participation for persons with disabilities: human rights indicators” stated among other things (pages 40 ‑ 41):", "“Seven out of the 28 EU Member States – Austria, Croatia, Italy, Latvia, the Netherlands, Sweden and the United Kingdom – guarantee the right to vote for all persons with disabilities, including those without legal capacity.", "In Croatia, legal reform in December 2012 abolished the exclusion of persons without legal capacity from the right to vote, meaning that people deprived of legal capacity were able to participate in the European Parliament and local elections in 2013. Similarly, amendments to the Latvian Civil Code which came into force in 2013 end the denial of the right to vote for those deprived of legal capacity. The relevant electoral legislation has not yet been amended, however, meaning people deprived of legal capacity can be barred from voting.", "A second group of EU Member States have a system whereby an assessment is made of the individual’s actual ability to vote. In Hungary, a system where everyone under guardianship was prohibited from voting was changed in 2012; now judges decide whether persons with “limited mental capacities” are allowed to vote. In Slovenia, the legal test for judges deciding whether to restrict the right to vote is whether the person with a disability is capable of understanding the meaning, purpose and effect of elections.", "A further 15 EU Member States prohibit people with disabilities who have been deprived of their legal capacity from voting. The Member States are Belgium, Bulgaria, Cyprus, Denmark, Estonia, Germany, Greece, Ireland, Lithuania, Luxembourg, Malta, Poland, Portugal, Romania and Slovakia. This exclusion is either set out in the country’s constitution or in electoral legislation. The German Federal Election Law is an example of this second approach. Persons for whom a custodian to manage all their affairs is appointed, not just by temporary order, are automatically deprived of their voting rights.”", "The Court observes that it seems that other European States, including Albania, Moldova, Serbia and Turkey, also had legislation restricting the right to vote in respect of persons who had been deprived of their legal capacity.", "THE LAW", "JOINDER OF THE APPLICATIONS", "72. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.", "ARTICLE 3 OF PROTOCOL NO. 1 TO THE CONVENTION", "73. The applicants complained that the Supreme Court judgment of 18 January 2018 had breached their right to vote under Article 3 of Protocol No. 1 to the Convention, which reads as follows:", "“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”", "Admissibility", "1. Submissions by the parties", "74. The Government submitted that the complaint should be declared inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "75. The applicants disagreed.", "2. The Court’s assessment", "76. The Court notes that the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "Merits", "1. Submissions by the parties", "77. The applicants did not dispute that the restriction in question pursued a legitimate aim, but maintained that the disenfranchisement had been unjustified and arbitrary.", "78. The State should enjoy a narrow margin of appreciation in this matter, since any exclusion of persons with disabilities from public life had to be subject to close scrutiny; that principle also applied to any assessment of whether such exclusion was compatible with international human rights guarantees.", "79. In the present case, the disenfranchisement had been an automatic consequence of the applicants being deprived of their legal competence. There had been no assessment of the applicants’ ability to vote.", "80. The authorities had been aware that there was no clear and absolute link between a person’s ability to organise his or her own finances and that person’s political rights. Nevertheless, there had been no proper legal debate at the domestic level regarding the appropriateness of the exclusion.", "81. Moreover, the Ministry of Justice had continuously refused to amend the relevant legislation; its sole argument for that refusal had been that that would require an amendment to the Constitution, which would be difficult from a practical point of view. Thus, in 2014, even though the United Nations Committee on the Right of Persons with Disabilities had made critical remarks about the legislation at issue, its report and remarks had not prompted any further considerations on the part of the Ministry of Justice. Likewise in 2016, when persons deprived of their legal capacity had been given the right to vote in elections for the European Parliament and in local and regional elections, they had still been denied the right to vote in general elections, as it had been argued that that would require an amendment to the Constitution. It had not been until after the Supreme Court judgment of 18 January 2018 that a thorough analysis of the legislation had been made by the Ministry of Justice. For the first time there had been a substantive and meaningful debate regarding the disenfranchisement of persons deemed to be legally incompetent, which had led to amendments to the Guardianship Act and the Parliamentary Act, which had entered into force on 1 January 2019.", "82. In the applicants’ view their case was thus identical to the Court’s judgment in Alajos Kiss v. Hungary (no. 38832/06, 20 May 2010). They found it of no specific importance that the affected group or person in Denmark was narrower than the affected group of persons in Hungary. The essential point was that their disenfranchisement had been arbitrary and an automatic result of their financial incapacity.", "83. The Government submitted that there had been no violation of Article 3 of Protocol No. 1 to the Convention, since the restriction on the right to vote had been proportionate to the legitimate aim pursued.", "84. Section 29 of the Constitution, which excluded persons who had been declared legally incompetent from voting (in addition to persons who had not attained the age of majority) had the legitimate aim of ensuring that voters in general elections had the required level of mental skills. In that connection, it had been necessary to link the grounds for exclusion to clear-cut criteria that were objective, clear and predictable.", "85. As regards the proportionality of the restriction, the Government referred to the Supreme Court’s reasoning in its judgment of 18 January 2018.", "86. They emphasised that the present case differed significantly from that of Alajos Kiss (cited above). Under the Danish arrangement, only a small group of persons were disenfranchised – namely those who were both subject to guardianship and had been deprived of their legal capacity under section 6 of the Guardianship Act. However, a person could not be deprived of his or her legal capacity if his or her interests could be sufficiently guarded through guardianship under section 5. The deprivation of legal capacity was thus a measure that affected a narrow group of persons, amounting to 0.046% of the Danish population of voting age, whereas 0.75% of the Hungarian population was subject to disenfranchisement. Moreover, the Danish legislature had considered on an ongoing basis the issue of disenfranchisement and had sought to extend the franchise as much as possible, as far as the Constitution allowed – hence, inter alia, the most recent amendment to the Constitution in 1953, and the amendment of rules on guardianship in 1996, and again in 2016 and 2019.", "87. The Government reiterated that disenfranchisement as an automatic legal consequence could be in accordance with Article 3 of Protocol No. 1, provided that it was proportionate, and not of a general, automatic and indiscriminate nature (see, inter alia, Scoppola v. Italy (no. 3), no. 126/05, § 102, 18 January 2011). The Danish rules setting out the conditions for depriving a person of his or her legal capacity were very strict and closely related to the issue of whether the person in question was able to foresee the consequences of his or her decisions and to make conscious and judicious decisions. Such decisions had to be made by a court. Moreover, under the relevant Danish legislation there were objective, clear and predictable criteria for qualifying for suffrage, and the circumstances automatically giving rise to disenfranchisement were detailed in the law.", "88. As regards the applicants’ submissions that there was no difference between the right to vote in general elections and the right to vote in elections for the European Parliament, the Government recalled that the legislature had seriously considered that matter during the readings of the bill by which the right to vote in European Parliament elections had been granted in 2016. At that time the right to vote had been extended to the greatest extent possible, without having to resort to an amendment to the Constitution.", "89. Lastly, the Government pointed to the fact that other European countries had made exceptions for persons without legal capacity with regard to the right to vote, and that Contracting States should be allowed a wide margin of appreciation in determining what procedures should be followed in order to assess mentally disabled persons’ fitness to vote.", "2. Submissions by the third party", "90. The European Network of National Human Rights Institutions, a Belgium-based NGO, submitted, inter alia, that recent changes in legislation, jurisprudence and practices across the Contracting Member states showed that there was a consensus, and common values, emerging around the principle that the voting rights of persons with disabilities should be guaranteed – including those of persons who were subject to a restriction or removal of their legal capacity. That consensus could equally be inferred from various resolutions, opinions, statements and recommendations from international and regional human rights bodies, which had repeatedly emphasised that the automatic link between the right to vote and one’s legal capacity disproportionately infringed upon the political rights of persons with disabilities.", "3. The Court’s assessment", "(a) General principles", "91. The Court refers to its relevant case-law, as outlined in the judgment of Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005 ‑ IX:", "“57. [T]he Court has established that [Article 3 of Protocol No. 1] guarantees individual rights, including the right to vote and to stand for election (see Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A no. 113, pp. 22-23, §§ 46-51). ...", "58. The ... rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law ...", "59. ... [T]he right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion. ... Universal suffrage has become the basic principle (see Mathieu-Mohin and Clerfayt, cited above, p. 23, § 51, citing X v. Germany, no. 2728/66, Commission decision of 6 October 1967, Collection 25, pp. 38-41).", "60. Nonetheless, the rights bestowed by Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations and Contracting States must be allowed a margin of appreciation in this sphere.", "61. ... The Court reaffirms that the margin in this area is wide (see Mathieu-Mohin and Clerfayt, cited above, p. 23, § 52, and, more recently, Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I; see also Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV, and Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II). ...", "62. It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Mathieu-Mohin and Clerfayt, p. 23, § 52). In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. For example, the imposition of a minimum age may be envisaged with a view to ensuring the maturity of those participating in the electoral process or, in some circumstances, eligibility may be geared to criteria, such as residence, to identify those with sufficiently continuous or close links to, or a stake in, the country concerned (see Hilbe v. Liechtenstein (dec.), no. 31981/96, ECHR 1999-VI, and Melnychenko v. Ukraine, no. 17707/02, § 56, ECHR 2004-X). Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates. Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (see, mutatis mutandis, Aziz v. Cyprus, no. 69949/01, § 28, ECHR 2004-V).”", "92. In addition to the principle above about the margin of appreciation being wide in this area, the Court recalls that the quality of the parliamentary and judicial review of the necessity of a general measure, such as the disputed disenfranchisement imposed as a consequence of declaring a person legally incompetent, is of particular importance, including to the operation of the relevant margin of appreciation (see, among others, Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts), and Correia de Matos v. Portugal [GC], no. 56402/12, §§ 117 and 129, 4 April 2018).", "93. Another factor which has impact on the scope of the margin of appreciation is the Court’s fundamentally subsidiary role in the Convention protection system. The Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto, and in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the Court. Through their democratic legitimation, the national authorities are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions (see, inter alia, Lekić v. Slovenia [GC], no. 36480/07, § 108, 11 December 2018).", "(b) Application of the general principles to the present case", "94. In the present case the applicants had been declared legally incompetent. Consequently, they were disenfranchised and prevented from voting in general elections. Their right to vote had thus been restricted by law. The Court will proceed to determine whether this measure pursued a legitimate aim in a proportionate manner, having regard to the principles identified above.", "(i) Lawfulness", "95. Unlike other provisions of the Convention, such as Article 5, Articles 8 to 11, or Article 1 of Protocol No. 1, the text of Article 3 of Protocol No. 1 does not contain an express reference to the “lawfulness” of any measures taken by the State. However, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention and its Protocols (see, among many other authorities, Amuur v. France, 25 June 1996, § 50, Reports of Judgments and Decisions 1996 ‑ III, and Abil v. Azerbaijan (no. 2), no. 8513/11, § 66, 5 December 2019).", "96. In the present case, it is not in dispute between the parties that the applicants’ disenfranchisement was lawful. It was prescribed by section 29 of the Constitution and section 1 of the Danish Act on Parliamentary Elections. The Court finds no reason to hold otherwise (see, for example, a contrario, Seyidzade v. Azerbaijan, no. 37700/05, §§ 31-40, 3 December 2009.", "(ii) Legitimate aim", "97. The Court points out that Article 3 of Protocol No. 1 does not (as do other provisions of the Convention) specify or limit the aims that a restriction must pursue; a wide range of purposes may therefore be compatible with Article 3. The Government submitted that the measure complained of had pursued the legitimate aim of ensuring that voters in general elections had the required level of mental skills. The applicants accepted that view, and the Court sees no reason to hold otherwise (see also Alajos Kiss, cited above, § 38, in which the Court accepted “that the measure complained of pursued the legitimate aim of ensuring that only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs”).", "(iii) Proportionality", "98. From the outset, it should be noted that at time of the parliamentary elections that took place on 18 June 2015 (in which the applicants could not vote), persons who were subject to guardianship under section 5 the Guardianship Act were deemed to be legally competent. Accordingly, they could vote in general elections.", "99. Only persons covered by section 5 and who had also been declared legally incompetent under section 6 of the Guardianship Act were excluded from voting in general elections.", "100. In order for a person to be declared legally incompetent under section 6, two conditions had to be fulfilled. The first condition was that the person in question had to be unable to manage his or her own affairs owing to reasons, such as mental unsoundness or mental disability, set out under section 5, and the second condition was that a legal incapacitation order was necessary to prevent the relevant person from exposing his or her assets, income or other financial interests to the risk of a major loss, or to prevent financial exploitation. It followed from section 8(1) of the Act that a person could not be deprived of his or her legal capacity if his or her interests could be sufficiently safeguarded through guardianship under section 5. Under section 10, a legal incapacitation order had to be quashed if the prescribed conditions were no longer met. Domestic law thus required an assessment of proportionality and proscribed an obligation to implement the least intrusive measure, in other words, the principle of proportionality applied to the imposition, content and lifting of the measures.", "101. As regards the quality of the parliamentary review, having regard, inter alia, to the historical and political context, the Guardianship Act and its preparatory notes (see paragraphs 50-54 and 61-63 above), and the reply of 17 March 2014 from the Minister for Justice to question no. 644 from the Legal Affairs Committee of the Danish Parliament (see paragraph 60 above), the Court finds it established that the review of the necessity of the general measure at issue, namely the disenfranchisement imposed as a consequence of declaring a person legally incompetent, and its compliance with section 29 of the Constitution, was indeed thorough.", "102. It also notes that the number of persons who had been declared legally incompetent was rather low, and the disenfranchisement in question therefore affected a small group of persons, amounting to 0.046% of the Danish population of voting age.", "103. The Court will proceed to examine the quality of the judicial review, and will have particular regard to the Supreme Court’s reasoning.", "104. In its judgment of 18 January 2018, the Supreme Court (see paragraph 17 above) explicitly took into account the applicable principles under Article 3 of Protocol No. 1 and the relevant Convention case-law.", "105. The Supreme Court observed that “strict requirements must be met in order to deprive a person of his or her legal capacity and to maintain in effect such a legal incapacitation order, and such requirements are closely related to the issue of whether the person in question is able to foresee the consequences of his or her decisions and to make conscious and judicious decisions”.", "106. The Supreme Court found that the purpose of disenfranchising legally incompetent persons under section 29 of the Constitution pursued a legitimate aim, as set out by the Court in Alajos Kiss (cited above).", "107. The Supreme Court also found that such disenfranchisement had been proportionate. In that respect it gave weight to the fact, as stated above, that the requirements for declaring a person legally incompetent were strict, that the restriction on the right to vote set out in section 29 of the Constitution therefore affected a low number of persons, and that the legislature had intended to afford the right to vote to the extent possible under the Constitution, notably when passing the Guardianship Act in 1996, and when passing Act no. 391 of 27 April 2016, which had given persons deprived of their legal capacity the right to vote in elections for the European Parliament and in local and regional elections. The case thus differed significantly from the situation in Alajos Kiss (cited above). Moreover, the Supreme Court considered that it could not be inferred from the Court’s case-law that in order for a restriction on the right to vote in respect of persons deprived of their legal capacity to be considered compatible with Article 3 of Protocol No. 1, a specific and individual assessment always had to be made of the relevant person’s mental capacity to exercise the right to vote. It observed in that respect, as did the High Court, that a specific and individual assessment of whether a person’s mental capacity was sufficient to exercise the right to vote might give rise to", "concern.", "108. Lastly, the Supreme Court observed that other European countries also had legislation restricting the right to vote in respect of persons who had been deprived of their legal capacity.", "109. Against this background, the Supreme Court found no violation of Article 3 of Protocol No. 1 (or of Article 14 of the Convention).", "110. The Court notes from the above that the Supreme Court thoroughly examined the proportionality and justification of the limitation of the applicants’ voting rights, and performed a balancing of interests, in the light of the Court’s case ‑ law, including Alajos Kiss (cited above). The quality of the judicial review of the disputed general measure and its application in the present case therefore militate in favour of a wide margin of appreciation.", "111. A further factor of relevance to the scope of the margin of appreciation is the existence or not of common ground between the national laws of the Contracting States. Relying on the report by the European Union Agency for Fundamental Rights of 21 May 2014 on “The right to political participation for persons with disabilities: human rights indicators”, the Supreme Court noted that other European countries also had legislation restricting the right to vote in respect of persons who had been deprived of their legal capacity. At the time, besides Denmark, it concerned Belgium, Bulgaria, Cyprus, Estonia, Germany, Greece, Ireland, Lithuania, Luxembourg, Malta, Poland, Portugal, Romania and Slovakia (see paragraph 71 above). The Court observes that it also seems to be the case in other European States, including Albania, Moldova, Serbia and Turkey. Accordingly, it cannot be concluded that there was common ground between the national laws of the Contracting States to uncouple disenfranchisement from deprivation of legal capacity.", "112. Nor does the Court discern any common ground at the international and European level in this respect.", "It recalls, on the one hand, that Article 29 of the United Nations Convention on the Rights of Persons with Disabilities sets out that States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others. Moreover, in its report of 30 October 2014 on Denmark, the United Nation Committee on the Rights of Persons with Disabilities expressed concern that persons who were deprived of their legal capacity under section 6 of the Guardianship Act were not allowed, at the time, to vote or to stand for election in parliamentary, municipal, regional or European Parliament elections, or referendums (see paragraphs 66 and 70 above).", "On the other hand, the Court observes that the Venice Commission in its Opinion no. 190/2002 had a more cautious approach, accepting that under certain cumulative conditions, provision may be made for depriving individuals of their right to vote (see paragraph 68 above).", "113. The Court notes the applicants’ submission that the margin of appreciation should have been narrow, presumably narrower than that applied by the Supreme Court. The Court agrees that although the margin of appreciation is generally wide under Article 3 of Protocol No. 1 (see, for example, Ždanoka v. Latvia [GC], no. 58278/00, §§ 105-106, ECHR 2006 ‑ IV), it is substantially narrower when a restriction on fundamental rights applies to a particularly vulnerable group in society, such as the mentally disabled (see Alajos Kiss, cited above, §§ 41 and 42). In the present case, however, the Court reiterates that the mentally disabled were not in general subject to disenfranchisement; nor were persons under guardianship by virtue of section 5 of the Guardianship Act – as stated above, only those persons covered by section 5, who, after an individualised judicial evaluation, had also been found legally incompetent by a court under section 6 of the Guardianship Act, were subject to disenfranchisement. The Court therefore agrees with the Government and the Supreme Court, that the legislation at issue significantly differed from the legislation examined in Alajos Kiss (cited above), where all persons, whether under full or partial guardianship, were subject to an automatic, blanket restriction in respect of suffrage. In the Court’s view, there is therefore no basis for finding that the Supreme Court in its judgment of 18 January 2018 overstepped the margin of appreciation afforded to it.", "114. It is correct, though, as pointed out by the applicants, that apart from the individualised judicial evaluation of their legal capacity under section 6 of the Guardianship Act, domestic law did not require a separate individualised assessment of their voting capacity. The Court reiterates in this respect that under Article 3 of Protocol No. 1 to the Convention, it is not a requirement for depriving a person of his or her right to vote that a specific and individual assessment of their voting capacity has been carried out (see, for example, in the context of prisoners’ voting rights, Hirst v. the United Kingdom (no. 2) [GC], cited above, § 62). Moreover, as pointed out above, there is a lack of European consensus, including as to whether to detach disenfranchisement from deprivation of legal capacity (see paragraphs 71 and 111 above). In this context, the Court also notes that a general measure may, in some situations, be found to be a more feasible means of achieving a legitimate aim than a provision requiring a case ‑ by ‑ case examination, a choice that, in principle, is left to the legislature in the Member State, subject to European supervision (see, inter alia, Correia de Matos v. Portugal, cited above, § 129, Animal Defenders International v. the United Kingdom [GC], cited above, § 108).", "115. Lastly, the applicants alleged that there had never been a true legal debate at the domestic level about the appropriateness of the disenfranchisement of persons who had been deprived of their legal capacity. It also appears that they alleged that the only reason why the legislation, under which they were disenfranchised, had not been amended was that the Ministry of Justice had found that an amendment to the Constitution would be impractical. The Court reiterates from the outset that in cases arising from individual petitions its task is not to review the relevant legislation or an impugned practice in the abstract. Instead, it must confine itself, as far as possible, without losing sight of the general context, to examining the issues raised by the case before it (see, for example, Donohoe v. Ireland, no. 19165/08, § 73, 12 December 2013; Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, §§ 69-70, 20 October 2011; Taxquet v. Belgium [GC], no. 926/05, § 83 in fine, ECHR 2010; and Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, § 90, 31 July 2008).", "116. Nevertheless, having regard anew to the historical and political context, the Court does consider it a fact that the legislator constantly sought to allow as many persons as possible to be able to vote while at the same time aiming to protect the small group of persons who were in need of guardianship combined with a deprivation of their legal capacity. The restrictions on the right to vote of persons deprived of their legal capacity were thus gradually reduced in 1996 when the Guardianship Act entered into force, and in 2016, when persons deprived of their legal capacity were given the right to vote in elections for the European Parliament and in local and regional elections.", "117. Moreover, after the parliamentary elections that took place on 18 June 2015 (in which the applicants could not vote), an Act that entered into force on 1 January 2019 provided for the possibility of depriving a person “only” partially of his or her legal capacity, with the intended consequence that such a person would retain the right to vote in general elections. Consequently, the applicants are now eligible to vote in general elections.", "118. It is correct, as pointed out by the applicants, that until the amendment of the legislation on 1 January 2019, the legislators considered that one of the main obstacles for providing persons deprived of their legal capacity with the right to vote in general elections was Article 29 of the Constitution. The Court can also endorse the applicants’ view that objectively seen it is difficult to justify that although in 2016 they were granted the right to vote in European Parliament elections, they were nevertheless still considered ineligible to vote in general elections, and in local and regional elections.", "119. The Court recalls, however, that with each legal amendment, including the one leading to the right to vote in European Parliament elections in 2016, the issue of disenfranchisement was carefully assessed by the legislature in its laudable effort throughout many years to limit the restrictions on the right to vote. The fact that the development obtained required thorough legal reflection and time, cannot, in the Court’s view, be held against the Government to negate the justification and proportionality of the restriction at issue. The Court also takes account of the changing perspective in society, which makes it difficult to criticise that the legislation only changed gradually (see, mutatis mutandis, Petrovic v. Austria, 27 March 1998, § 4, Reports of Judgments and Decisions 1998 ‑ II).", "120. The Court is therefore satisfied that the above elements significantly differed from the situation in Alajos Kiss (cited above, § 41), where the Court observed that there was no evidence that the legislature had ever sought to weigh the competing interests or to assess the proportionality of the restriction in question.", "121. Having regard to the above, the Court concludes that there has been no violation of Article 3 of Protocol No. 1 to the Convention.", "ALLEGED VIOLATION OF ARTICLE 14 READ IN CONJUNCTION WITH ARTICLE 3 OF PROTOCOL No. 1 TO THE CONVENTION", "122. The applicants also complained that the Supreme Court judgment of 18 January 2018 had breached their right under Article 14, read in conjunction with Article 3 of Protocol No. 1 to the Convention. Article 14 of the Convention reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. Admissibility", "1. Submissions by the parties", "123. The Government submitted that the application should be declared inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "124. The applicants disagreed.", "2. The Court’s assessment", "125. The Court notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "B. Merits", "1. Submissions by the parties", "126. The parties referred notably to their submissions under Article 3 of Protocol No. 1 to the Convention.", "2. The Court’s assessment", "(a) General principles", "127. The Court reiterates that Article 14 complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence, since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. The prohibition on discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms that the Convention and Protocols require each State to guarantee (see, inter alia, Biao v. Denmark [GC], no. 38590/10, § 88, 24 May 2016).", "128. According to established case-law, a difference in the treatment of persons in relevantly similar situations is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, inter alia, Molla Sali v. Greece [GC], no. 20452/14, § 135, 19 December 2018; Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017; and Fabris v. France [GC], no. 16574/08, § 56, ECHR 2013 (extracts)).", "129. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (see, for example, Molla Sali (cited above) § 136; Fábián, cited above, § 114; and Hämäläinen v. Finland [GC], no. 37359/09, § 108, ECHR 2014). The scope of this margin will vary according to the circumstances, the subject-matter and the background (see, inter alia, Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010).", "(b) Application of the general principles to the present case", "130. Referring to the reasoning set out under its examination of Article 3 of Protocol No. 1 to the Convention, the Court is satisfied that the difference in the treatment of the applicants, who had been deprived of their legal capacity at the relevant time, pursued a legitimate aim, and that there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised.", "131. Accordingly, there has been no violation of Article 14 read in conjunction with Article 3 of Protocol No. 1 to the Convention of the Convention." ]

[ "2. The applicant was born in and lives in Santiago de Compostela. She is the mother of M., a mentally disabled young woman born in A Coruña (La Coruña) in 1996. The applicant was represented by Ms L. Gonzalez-Lagana Vicente, a lawyer practising in A Coruña.", "3. The Government were represented by their Agent, Mr R.-A. León Cavero, State Counsel and head of the Human Rights Department at the Ministry of Justice.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. In December 2013, given the fact that M., the applicant’s daughter, would soon turn 18, the applicant lodged a request with a judge of First-Instance Court No. 6 of Santiago de Compostela (“the First-Instance Judge”) that she be deprived of her legal capacity. The applicant requested that her legal guardianship over her daughter be extended, but specifically asked that her daughter not be deprived of her right to vote.", "6. On 2 September 2014, the First-Instance Judge decided that the applicant’s daughter should be placed under the extended partial legal guardianship of her mother and that, in the light of the evidence and the case file, M.’s right to vote should be revoked.", "7. In an extensively reasoned judgment, the First-Instance Judge held that, given the specific circumstances of the case, the applicant’s daughter was not capable of exercising her right to vote. Having examined the Convention on the Rights of Persons with Disabilities (CRPD) (see paragraph 23 below) in the light of the Spanish legal system, the First-Instance Judge explained the difference between the CRPD’s general concept of disability and the Spanish legal institution of incapacitation ( incapacitación ), which is intended to guarantee the rights of disabled people. He also referred to the case-law of the Supreme Court (according to which the CRPD and the institution of incapacitation, as regulated under the Spanish legal system, are compatible); he furthermore stated that a person who has been declared incapacitated ( incapacitado ) in the course of judicial proceedings (and who is not able to manage himself or herself) cannot be compared to a person who suffers a disability but is capable of managing himself or herself. The First-Instance Judge indicated in particular that:", "“It is necessary to bring on this particular controversial aspect the most recent and consolidated scientific doctrine and jurisprudence, citing, inter alia, the recent Supreme Court judgment 341/2014, of 1 July 2014, which states that ... (as is clear from the New York Convention and as was maintained by Supreme Court judgment 421/2013 of 24 June) Article 29 of the CRPD guarantees to persons with disabilities all political rights, and the possibility to enjoy them, under equal conditions, and as a logical corollary thereto ... the right to vote ...; sections 3(1)(b) and 2 of Institutional Law 5/85 of 19 July 1985 on the General Electoral System states that those declared incapacitated by virtue of a final judicial decision shall be deprived of the right to vote, provided that the decision expressly declares the relevant person’s incapacity to exercise it, and that the judges or courts deciding on that person’s incapacity or on confinement proceedings expressly rule on that person’s incapacity to exercise his right to vote. The loss of the right to vote is not an automatic or necessary consequence of incapacity ... It is for the judge in charge of the case to analyse and assess the situation of the person under his consideration and to rule on the advisability of denying that person his right to exercise of this fundamental right, ... which is a rule and not the exception ...”", "8. The First-Instance Judge considered that in respect of the instant case, the limitations imposed on M. in respect of her right to vote were based neither on the requirement of a higher cognitive or intellectual capacity nor on M.’s lack of knowledge regarding her voting options (that is to say her choice of candidate or party) nor on any hypothetical irrationality in respect of such choices, but on the strict and objective establishment of her lack of capacity in respect of political affairs and electoral matters. The court’s medical expert and the First-Instance Judge had ascertained the notable – and at that time insuperable – deficiencies of M. (without, in accordance with section 761 of the Civil Procedural Law, prejudging any possible subsequent change in her capacity) in respect of her exercising an electoral choice. The First-Instance Judge acknowledged that depriving a person of her voting rights could not be an automatic consequence of a judicial declaration of legal incapacity and that decisions dealing with such situations had therefore to be extensively reasoned. He noted that the task at hand was not that of examining the knowledge of the applicant’s daughter about a specific political system, but to assess the circumstances of the case. The restriction of her right to vote was not justified by the fact that she hardly knew anything about the Spanish political system, but because she was highly influenceable and not aware of the consequences of any vote that she might cast. The First-Instance Judge emphasised in his judgment that such decisions were always subject to judicial review.", "9. In October 2014, the applicant lodged an appeal with the Regional Court ( Audiencia Provincial ) of A Coruña. She asked the court to expressly recognise her daughter’s right to vote, submitting that under Articles 12 and 29 of the CRPD, the right to vote of persons with disabilities was recognised and that States had to provide them with the support necessary for the full exercise of that right to be guaranteed.", "10. On 11 March 2015, the Regional Court of A Coruña dismissed the applicant’s appeal. The Regional Court considered that a decision to deprive a person of his or her right to vote was legal and compatible with the CRPD, provided that that person’s capacity to exercise the right to vote had been subjected to individual review by a judicial body; it noted that the first-instance judgment had been sufficiently reasoned. The Regional Court emphasised that the intellectual ability of the applicant’s daughter was equivalent to that of child aged between six and eight.", "11. In April 2015, the applicant lodged an appeal on points of law with the Supreme Court. She argued that all citizens had the right to vote under Article 23 of the Spanish Constitution (taken in conjunction with Article 10 § 2 thereof, which provided that fundamental rights recognised under the Constitution should be interpreted in accordance with the international conventions ratified by Spain). Moreover, she considered it to be contrary to the principle of non-discrimination that disabled people were prevented from exercising the fundamental right to vote.", "12. On 17 March 2016, the Supreme Court dismissed the applicant’s appeal, upholding the decision of the Regional Court and ruling that the reasoning of the contested judgment had contained a thorough analysis of the case and had correctly balanced the interests at stake.", "13. On 28 April 2016 the applicant lodged an amparo appeal alleging a violation of Article 23 of the Spanish Constitution, defending her daughter’s right to vote. It was dismissed by the Constitutional Court on 28 November 2016 (notified on the 22 December 2016).", "14. In its reasoned decision ( auto ), the Constitutional Court stated as follows:", "“... 2. With regard to doubt about the constitutionality of sections 3(1)(b) and 2 of Institutional Law 5/1985 ... on the general electoral system (the LOREG) under Article 23 § 1 of the Spanish Constitution, the applicant assumes that this constitutional provision guarantees to all citizens the right of active suffrage, without any limitation or exception ...", "...", "Sections 2 and 3 of the LOREG limit the ... right to vote to those who, besides holding Spanish nationality ..., have reached the minimum legal age, have been included in the electoral census, and are not affected by the circumstances provided by section 3 (including having been judicially deprived of the right to vote in incapacity proceedings or being confined owing to a psychiatric disorder). Thus, the constitutional model of universal suffrage is not per se incompatible with an individual being deprived of the right to vote for a reason legally provided for, especially when such deprivation is covered by the standard legal guarantees.", "3. On the basis of the considerations listed in the previous paragraph, the arguments employed in the appeal are insufficient to effectively question the constitutionality – owing to the infringement of Articles 23 §§ 1 and 14 of the Spanish Constitution – of the above-mentioned legal provisions (paragraphs (1)(b) and (2) of section 3 of the LOREG), which enable courts and tribunals to restrict the exercise of a person’s right to vote on the basis of that person’s legal incapacity – in particular, on the basis of the specific circumstances of each person and after the completion of the appropriate judicial procedure determining his or her incapacity (or the authorisation of his or her confinement on the basis of mental illness).", "With regard to the alleged interpretation of Article 23 of the Spanish Constitution in accordance with the CRPD – and, in particular, in accordance with Article 29 thereof – which was adopted in New York on 13 December 2006 and ratified by Spain ... on 9 April 2008 ..., it is necessary to take into account, first of all, the distinction between ‘disability’ (a) in the sense of the Convention – a very broad concept that includes any ‘long-term physical, mental, intellectual or sensory impairment’ that may prevent any actual equality, and (b) ‘disability’ in the sense of the Spanish Civil Code (CC) – that is to say ‘persistent physical or mental illnesses or impairments that prevent the person from caring for himself/herself’ (Article 200 of the CC) with regard to his/her exercise of the right in question under section 3 of the LOREG. The latter deals with the ability of ... each person to cast a vote as a ‘free expression of the will of the elector’, which is also guaranteed by the CRPD (Article 29 (a) (iii)), the purpose of which is ..., in line with the mandate specified by Article 9 § 2 of the Spanish Constitution: to remove obstacles that prevent or hinder free and secret voting without fear (Article 29 (a) (ii) and (iii)) by persons with disabilities and to ensure that they are ‘assisted in voting by a person of their choice, ... where necessary and at their request’.", "...", "It should be stressed that section 3 of the LOREG does not deprive the ‘disabled’ of their right to vote as a group or on the basis of any disability. On the contrary, it gives the judicial authorities the task of deciding on such a restriction of the exercise of the fundamental right on an individual basis, because of the specific circumstances of each person and after due process has been observed. This provision does not stipulate the deprivation of this right of suffrage in its active aspect in respect of people suffering from any disability, but only to those in respect of whom it has been so decided, by a judgment, after the appropriate proceedings have been conducted with due respect to the guarantees of adequate defence and evidence, and by virtue of the specific dysfunctionality from which they suffer and which affects their intellectual and volitional capacity with respect to the exercise of the right to vote. Therefore, the restriction should only affect those persons who lack the minimum level of understanding and will necessary to freely exercise their vote, as provided by Article 23 § 1 of the Spanish Constitution. Furthermore, the nature of the measures referred to in Article 29 (a) (i) to (iii) of the CRPD is such ... that their purpose is to ensure the effective exercise of the right to vote as a true reflection of the free will of a person with a disability and not, on the contrary, the mere insertion of the ballot paper into the ballot box.", "4. ... The case-law of the Civil Chamber of the Supreme Court ... requires that a decision not to allow someone to exercise his fundamental right to vote be preceded by an individualised examination of that person’s situation and by an assessment of the competing interests in play. ...", "... It is necessary to point out that an assessment of the specific circumstances from which the contested decisions imply the inability to exercise the right to vote in the present case not only does not manifest any arbitrariness, irrationality, or obvious error in the wording of those decisions, but also complies with the principle of reinforced reasoning, which is required when a restriction of the exercise of fundamental rights is involved ...", "... The contested judicial decisions take into consideration the data that they extract from the evidence – in particular from the forensic report and the examination carried out by the judge himself, as well as ... the statement given by the applicant’s daughter at the hearing – in order to reach a decision that cannot be categorised as unreasonable.", "As is clear from the judgments appealed against and as was explicit in the first-instance judgment, the disputed decision does not depend on the person’s threshold of knowledge or instruction, which is not required for other citizens not subject to incapacity proceedings. The said knowledge is only one piece of information which, together with others – particularly medical-psychiatric expert reports – can be reasonably used to evaluate a person’s aptitude ... This can also be applied to the question of ‘influence exerted by third parties’ ... It is not ... a question of identifying an absence of knowledge ... on the part of a person lacking capacity, but of recognising that through these elements (among others) ... the degree of development of the mental faculties of the person in question can be ascertained.”", "15. The Constitutional Court concluded that there had not been any violation of the fundamental rights alleged." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "Relevant Domestic Law", "16. The relevant provisions of the Spanish Constitution read as follows:", "Article 14", "“All Spanish citizens are equal before the law and they may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.”", "Article 23", "“1. Citizens have the right to participate in public affairs, directly or through representatives freely elected in periodic elections by universal suffrage.", "2. They likewise have the right to access on equal terms to public office, provided that they meet the requirements provided by law.”", "17. The relevant provisions of the Civil Code read as follows:", "Article 199", "“No one may be declared incapacitated, except under a court judgment for reasons set forth in the law.”", "Article 200", "“Persistent physical or mental illness or deficiencies that prevent a person from caring for himself constitute reasons for ruling that person legally incapacitated.”", "Article 232", "“Guardianship shall be exercised under the supervision of the Public Prosecutor, who shall act ex officio or at the request of any interested party.", "The Public Prosecutor may require at any time a guardian to inform him of the situation of the minor or incapacitated person in question and of the state of the administration of the guardianship.”", "Article 233", "“The judge may establish, in the resolution establishing a guardianship or in another subsequent resolution, any supervision and control measures deemed suitable for the benefit of the person under guardianship. Likewise, he may at any time require the guardian to inform him of the situation of the minor or incapacitated person and the state of the administration of the guardianship.”", "18. The relevant provisions of Institutional Law 5/1985 of 19 June 1985 on the general electoral system (the LOREG), as worded at the material time, read as follows:", "Section 2 – Right to vote", "“1. All Spanish citizens of legal age not falling within any of the categories listed in the following section have the right to vote.”", "Section 3 – Disenfranchisement", "“1. The following have no right to vote:", "...", "b) Persons declared incapacitated by a final judicial decision, provided that that decision specifically declares the person in question incapable of exercising suffrage.", "c) Persons residing in a mental hospital by order of a court, in the event that the court explicitly declares in its order that the person in question is incapable of exercising the right to vote.", "2. For the purposes of this section, courts or tribunals having jurisdiction to declare a person’s legal incapacity or to order a person’s residence in a mental hospital must specifically decide whether that person is incapable of exercising the right to vote, and if that is the case, they shall require that fact to be noted in the Civil Register.”", "19. Institutional Law 2/2018 of 5 December 2018 modified the LOREG so that it guaranteed the right to vote to persons with a disability, eliminating the provisions of the LOREG relating to the possibility of depriving disabled people of the right to vote. Institutional Law 2/2018, which entered into force on 7 December 2018, amended the wording of section 3 of the LOREG, so that it now reads, where relevant, as follows:", "“(i). Sub-paragraphs (b) and (c) of section 3 § 1 are deleted.", "(ii). The second paragraph of section 3 shall read as follows:", "Everyone shall be entitled to exercise his right to vote, knowingly, freely and voluntarily, whatever the manner in which that vote is cast and whatever means of support he may require.", "An eighth, additional, provision is added with the following wording:", "As of the entry into force of Organic Law 5/1985 of 19 June modifying the Organic Law on the General Electoral System in order to adapt it to reflect the International Convention on the Rights of Persons with Disabilities, any limitations on the exercise of the right to vote established by judicial resolution (on the basis of section 3(1)(b) and (c) of Organic Law 5/1985 – no longer in force) shall cease to have effect. Those persons whose right to vote has been limited or annulled owing to disability shall fully regain that right by virtue of the law”.", "20. The relevant provisions of the Code of Civil Procedure read as follows:", "Article 759", "“1. In incapacity proceedings, in addition to examining evidence adduced in accordance with the provisions of Article 752, the court shall hear the next-of-kin of the allegedly incapacitated person, examine the person himself and agree on which expert opinions in respect of the claims made in the application for a declaration of incapacity should be ordered and on what other measures provided by law should be undertaken. A decision on a declaration of incapacity shall never be made without first securing, with the agreement of the relevant court, an expert medical opinion.", "2. Where an application for a declaration of incapacity requests the appointment of a person or persons to assist or represent the incapacitated person and to look after him, the next-of-kin of the allegedly incapacitated person, the allegedly incapacitated person himself if there is sufficient reason, and such other persons as the court considers appropriate shall be heard regarding the matter.", "3. If the judgment on incapacity is appealed against, the evidence referred to in the preceding paragraphs of this Article shall also be secured by the second-instance court.”", "Article 760", "“1. The judgment declaring a person’s incapacity shall specify the extent and limits of that incapacity, as well as the system of guardianship or tutelage to which the incapacitated person is to be subjected, and shall rule, where appropriate, on the need for confinement, without prejudice to the provisions of Article 763.", "2. In the case referred to in paragraph 2 of the preceding Article, if the court allows the application, the judgment declaring a person’s incapacity or the prodigality [ prodigalidad ] shall indicate the person or persons who, under the law, are to assist or represent the incapacitated person and look after him.", "3. The judgment declaring a person’s prodigality shall determine the acts that the prodigal [ pródigo ] cannot perform without the consent of the person who is to assist him.”", "Article 761", "“1. A finding of incapacity shall not preclude the possibility of new proceedings being instituted, in the event of new circumstances, for the purpose of terminating or modifying the scope of the incapacity already established.", "2. The persons referred to in Article 757 § 1, those exercising guardianship or who have custody of the disabled person, the Public Prosecutor’s Office or the disabled person himself shall be requested to initiate the proceedings referred to in the preceding paragraph.", "If the incapacitated person has been deprived of the capacity to appear in court, he must obtain express judicial authorisation to act in the proceedings on his own behalf.", "3. The mandatory evidence referred to in Article 759 shall be adduced ex officio, both during the first-instance proceedings and, where appropriate, in the second-instance proceedings.", "The judgment to be delivered shall rule on whether or not the declaration of incapacity should be revoked, or whether or not the extent and limits of the incapacity should be modified.”", "International Legal Instruments AND COMPARATIVE PRACTICE", "21. The relevant provisions of the International Covenant on Civil and Political Rights (CCPR), adopted on 19 December 1966, and ratified by Spain on 13 April 1977, read as follows:", "Article 25", "“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:", "(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;", "(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.”", "22. In recent concluding observations – notably in those on the fifth periodic report of Portugal, adopted on 2-27 March 2020 (CCPR/C/PRT/CO/5) – the Human Rights Committee made the following observations with respect to persons with psychosocial or intellectual disabilities:", "“18. ... The Committee further notes with concern the undue restrictions imposed on the right to vote for people with mental disabilities.", "19. The State party should:", "...", "(c) Ensure that it does not discriminate against persons with mental, intellectual or psychosocial disabilities by denying them the right to vote on grounds that are disproportionate or have no reasonable and objective relation to their ability to vote, taking account of article 25 of the Covenant.”", "23. The relevant provisions of the Convention on the Rights of Persons with Disabilities (CRPD), adopted on 13 December 2006 and ratified by Spain on 9 April 2008, read as follows:", "Article 1 – Purpose", "“ The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.", "Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”", "Article 2 – Definitions", "“For the purposes of the present Convention:", "...", "‘Discrimination on the basis of disability’ means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.", "‘Reasonable accommodation’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.”", "Article 12 – Equal recognition before the law", "“1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.", "2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.", "3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.", "4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.", "...”", "Article 29 – Participation in political and public life", "“States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake:", "a. To ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by:", "i. Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use;", "ii. Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate;", "iii. Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice;", "b. To promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs, including:", "i. Participation in non-governmental organizations and associations concerned with the public and political life of the country, and in the activities and administration of political parties.", "ii. Forming and joining organizations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels.”", "24. In its General Comment No. 1 (2014) on Article 12 of the CRPD (Equal recognition before the law), adopted on 19 May 2014, the Committee on the Rights of Persons with Disabilities made the following comment on Article 29 of the CRPD:", "Article 29: Political participation", "“48. Denial or restriction of legal capacity has been used to deny political participation, especially the right to vote, to certain persons with disabilities. In order to fully realize the equal recognition of legal capacity in all aspects of life, it is important to recognize the legal capacity of persons with disabilities in public and political life (Article 29). This means that a person’s decision-making ability cannot be a justification for any exclusion of persons with disabilities from exercising their political rights, including the right to vote, the right to stand for election and the right to serve as a member of a jury.", "49. States parties have an obligation to protect and promote the right of persons with disabilities to access the support of their choice in voting by secret ballot, and to participate in all elections and referendums without discrimination. The Committee further recommends that States parties guarantee the right of persons with disabilities to stand for election, to hold office effectively and to perform all public functions at all levels of government, with reasonable accommodation and support, where desired, in the exercise of their legal capacity.”", "25. Recommendation R (99)4 of the Committee of Ministers to member States on Principles Concerning the Legal Protection of Incapacitated Adults (adopted on 23 February 1999) provides as follows:", "Principle 3 – Maximum preservation of capacity", "“... 2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so.”", "26. The Code of Good Practice in Electoral Matters, adopted by the European Commission for Democracy through Law (the Venice Commission) at its 51 st and 52 nd sessions (5-6 July and 18-19 October 2002, opinion no. 190/2002), provides as follows:", "“I.1. Universal suffrage – 1.1. Rule and exceptions", "d. Deprivation of the right to vote and to be elected:", "“i. provision may be made for depriving individuals of their right to vote and to be elected, but only subject to the following cumulative conditions:", "ii. it must be provided for by law;", "iii. the proportionality principle must be observed; conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them;", "iv. The deprivation must be based on mental incapacity or a criminal conviction for a serious offence.", "v. Furthermore, the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law.”", "27. The European Union Agency for Fundamental Rights noted (in its report of 21 May 2014 entitled “The right to political participation for persons with disabilities: human rights indicators”) that the right to vote is often linked in national legislation to legal capacity; consequently, people who have been deprived of their legal capacity (either wholly or in part) are prohibited from voting.", "This report stated, in its relevant parts, as follows (pages 40-41; footnotes omitted):", "“Seven out of the 28 EU Member States – Austria, Croatia, Italy, Latvia, the Netherlands, Sweden and the United Kingdom – guarantee the right to vote for all persons with disabilities, including those without legal capacity.", "In Croatia, legal reform in December 2012 abolished the exclusion of persons without legal capacity from the right to vote, meaning that people deprived of legal capacity were able to participate in the European Parliament and local elections in 2013. Similarly, amendments to the Latvian Civil Code which came into force in 2013 end the denial of the right to vote for those deprived of legal capacity. The relevant electoral legislation has not yet been amended, however, meaning people deprived of legal capacity can be barred from voting.", "A second group of EU Member States have a system whereby an assessment is made of the individual’s actual ability to vote. In Hungary, a system where everyone under guardianship was prohibited from voting was changed in 2012; now judges decide whether persons with “limited mental capacities” are allowed to vote. In Slovenia, the legal test for judges deciding whether to restrict the right to vote is whether the person with a disability is capable of understanding the meaning, purpose and effect of elections.", "A further 15 EU Member States prohibit people with disabilities who have been deprived of their legal capacity from voting. The Member States are Belgium, Bulgaria, Cyprus, Denmark, Estonia, Germany, Greece, Ireland, Lithuania, Luxembourg, Malta, Poland, Portugal, Romania and Slovakia. This exclusion is either set out in the country’s constitution or in electoral legislation”.", "28. The situation since that report has slightly changed (see a report of the Agency for Fundamental Rights of 2019 titled “Who will (not) get to vote in the 2019 European Parliament elections? Developments in the right to vote of people deprived of legal capacity in EU Member States”). It seems that, apart from Spain (2018), also France (2019) and Germany (2019) granted the right to vote to persons with mental disabilities. Denmark (2016 and 2018) eased the restrictions on the right to vote for persons with mental disabilities, and Belgium (2018) moved from a system of automatic disenfranchisement to one of disenfranchisement upon an individual assessment by a judge. The Supreme Court of Slovakia (2017) struck down legal provisions tying the right to vote to legal capacity.", "THE LAW", "On the request for the application to be struck out of the list", "29. The Government argued that the application should be struck out, in accordance with the provisions of Article 37 § (1) (a) and (b) of the Convention, since the applicant’s daughter had been legally recognised as having the right to vote and the judicial decisions that had given rise to that procedure had been automatically annulled. The Government argued in particular that Institutional Law 2/2018 of 5 December 2018 had modified the LOREG, eliminating the provisions of the LOREG relating to the possibility of depriving disabled people of the right to vote and guaranteeing the right to vote to persons with a disability.", "30. The Court notes that for a certain period of time the applicant’s daughter was not permitted to vote. Various elections were held in Spain and in Europe between 2014 and 2018 (namely, elections to the European Parliament in May 2014, Spanish general elections in 2015 and 2016). In none of these elections was the applicant’s daughter, despite being of legal age, able to exercise her right to vote.", "31. Therefore, the application does not fall under Article 37 § 1; it is true that the relevant legislation was amended in 2018 and that since then, all disabled persons have been allowed to vote, but the fact remains that the applicant’s daughter was not able to vote in several elections held after she had reached her majority until the amendment of the law in 2018.", "32. The Court considers in any event that respect for human rights, as defined by the Convention and the Protocols thereto, requires it to continue the examination of the application (Article 37 § 1 in fine).", "On the applicant’s standing to bring the present application", "33. The Court notes that the application was brought by Ms Maria del Mar Caamaño Valle in her own name, acting on behalf of her daughter, M. It accepts that under Spanish law, as is evidenced by the proceedings under review, the applicant has been exercising the rights of her disabled daughter.", "34. It is worth noting that the judicial process at each domestic instance – prior to the lodging of the instant application – consisted precisely of the domestic proceedings initiated at the time in question by the mother with the intention of extending her custody over her disabled daughter. That process ended with the declaration of her daughter’s incapacity and the extension of the parental-guardianship. It therefore considers that the applicant had the required capacity to lodge the present application. It will proceed, however, under the assumption that the actual victim of the alleged violation in this case is M.", "ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 AND ARTICLE 14 OF THE CONVENTION and article 1 of protocol No. 12", "35. The applicant complained of a violation of Article 3 of Protocol No. 1. She also complained of a violation of Article 3 of Protocol No. 1. in conjunction with Article 14 of the Convention and Article 1 of Protocol No. 12, asserting that the prohibition, in force at the relevant time, on people with disabilities voting had been discriminatory.", "The relevant provisions read as follows:", "Article 3 of Protocol No. 1", "“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”", "Article 14 of the Convention", "“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as ...other status.”", "Article 1 of Protocol No. 12", "“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.", "2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”", "Admissibility", "36. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicant", "37. The applicant noted that despite the universality of the right to vote, as recognised by the Constitution, the LOREG stated that people whose legal capacity had been modified could be deprived of the right to vote by a judicial decision. Such a restriction constituted unquestionable discrimination on the basis of disability, did not pursue a legitimate aim and was disproportionate.", "38. The applicant reiterated that international treaties on human rights served as interpretative criteria in respect of the rights safeguarded by the Convention. In that regard, the CPRD, which had been largely ratified worldwide, defined the standards of protection to be afforded to people with disabilities, guaranteed the right to vote of people with disabilities, and established that States were responsible for guaranteeing the exercise of this right in conditions of equality and non-discrimination.", "39. In the applicant’s opinion, it was an “impossible chimera” ( quimera imposible ) to attempt to limit a person’s right to vote through an evaluation of his or her capabilities or ability to think freely. She maintained that voting constituted an individual and personal choice and that political pluralism was an expression of human diversity in terms of elections and respect for elections.", "(b) The Government", "40. The Government stated that people with disabilities in Spain enjoyed the same fundamental rights as other citizens. The key point in the present case was that the term “disability”, as used in the CRPD, was not the equivalent of the term “incapacity”, as used by Spanish legal system.", "41. The Government noted that under Article 200 of the Civil Code, incapacity proceedings were designed to guarantee the rights of people suffering persistent mental illness or deficiencies preventing them from looking after themselves (see paragraph 17 above). Such proceedings were undertaken before a judge, a public prosecutor took part in such proceedings in order to help the person whose legal capacity was at stake, and the judgment delivered had to be properly reasoned and based on evidence. The judge examined the person concerned and the specific circumstances of the case and considered what was in that person’s best interests, the object of the judgment being only to guarantee that person’s rights. Any such judgment could be revised to reflect the evolution of the disabilities suffered by the subject of the judgment.", "42. The Government referred to the principles established by the Court’s conclusions in respect of the case of Alajos Kiss v. Hungary (no. 38832/06, §§ 38 et seq., 20 May 2010), and, in particular, to the wide margin of appreciation enjoyed by the national legislature in determining whether restrictions on the right to vote could be justified. In that respect, the Government submitted that preventing a person under guardianship from voting (depending on his or her specific circumstances) would be acceptable, particularly in a case such as the present one, in which the said restriction was not automatic but was only applicable to individuals following the completion of a judicial procedure that observed all due guarantees. Referring to Cernea v. Romania (no. 43609/10, §§ 34-36, 27 February 2018), the Government maintained that the applicant’s daughter had not suffered discrimination on the grounds of her disability.", "43. The Government reiterated that the case-law of the Court ensured that member States respected the minimum standard of protection of fundamental rights required by the European Convention on Human Rights. They submitted that the Court should not raise that standard by itself. The Court had the faculty to interpret the Convention as a living instrument, but only when there was a European consensus regarding a subject; however, even if that was the case, such an increase in the standard of protection could not be imposed by the Court.", "44. The Government described the process that was compulsory in Spain in order for someone to be declared incapable or for a person’s legal capacity to be modified. It furthermore pointed out the following guarantees: (i) only a party entitled to initiate that process could do so – that is to say the public prosecutor or a relative of the person in question, and (ii) the judge had to personally examine the person in question and be guided by a physician and by a report on the status of that person. The aim of the process was to protect the person, regardless of the aims sought by the initiator of the proceedings. The deprivation of the right to vote of the person in question was not an automatic consequence of the process; it depended on the specifics of each case. The decision was always revisable if the circumstances of the person in question changed. The Government also explained that the Venice Commission – in accordance with the Code of Good Practice in Electoral Matters – agreed with the approach followed under the Spanish legal system. Furthermore, the Government submitted that in the light of the Court’s judgment in the case of Alajos Kiss (cited above), it was not possible to argue that there had been any violation of the fundamental rights of the applicant’s daughter. The Government noted that Spanish law satisfied the standard set by Article 3 of Protocol No. 1.", "45. The Government furthermore noted that a new law (Institutional Law 2/2018) had entered into force, modifying the LOREG by guaranteeing the right of suffrage to persons with disabilities. Consequently, all persons suffering from a mental disability of whatever degree now had the right to vote, and all previous final judicial decisions declaring such a disability were deemed to be null and void. All persons who were in the same situation as the applicant automatically benefitted from the provisions of the new law.", "(c) The third party’s submissions", "46. The Commissioner for Human Rights of the Council of Europe (“the Commissioner”) considered that developments within the UN system and the Council of Europe demonstrated a clear evolution in terms of the clarification of international obligations and that there was a consensus among the Contracting States within the context of commonly agreed international standards to the effect that the withdrawal of political rights on the basis of a disability (including cognitive impairment) and mental health status was unacceptable, even when it stemmed from a judicial decision.", "47. In the opinion of the Commissioner, when a large category of persons – such as the nearly 100,000 persons in Spain with intellectual and psychosocial disabilities – was excluded from the electoral process, not only were they deprived of any possibility of influencing the political process and the chance of shaping the policies and measures that directly affected their lives, but society as a whole was deprived of a legislature that reflected its full diversity. Therefore, such measures certainly interfered with the free expression of the opinion of the people in the sense of Article 3 of Protocol No. 1. They also perpetrated age-old stigmas against persons with intellectual and psychosocial disabilities; such stigmas were damaging to the whole of society. Voting was also an important symbol of empowerment and inclusion and could affect the motivation of persons with disabilities to participate in public life and contribute to the societies in which they lived.", "48. In conclusion, the Commissioner was of the opinion that Article 3 of Protocol No. 1 to the Convention should be interpreted in the light of Article 29 of the CRPD and other international standards that provided that the right to vote of persons with disabilities should be upheld without exception. The Commissioner furthermore asserted that the practice of depriving persons with intellectual and psychosocial disabilities of their right to vote on the basis of a judicial decision could not be considered to be compatible with a legitimate aim in a modern democracy and amounted to discrimination; interfering with the ability of the persons concerned to freely express their opinions had serious negative effects on those persons, on society and on democracy. Accordingly, States should be reminded of their positive obligations to ensure that persons with disabilities (including intellectual and psychosocial disabilities) could effectively exercise their right to vote; they could realise those obligations by undertaking general measures securing the accessibility of electoral procedures, reasonable accommodation, and the provision of individual support where necessary.", "(d) The parties’ comments on the Commissioner’s intervention", "49. The applicant agreed with the Commissioner that the rights under the Convention of persons with disabilities should be interpreted in the light of the CRPD, and emphasised that Article 3 of Protocol No. 1, read in conjunction with Article 14 of the Convention and Article 1 of Protocol No. 12, should be interpreted as guaranteeing the right to vote of persons with disabilities, without exception and on an equal basis.", "50. The Government reiterated that the role of the Court consisted of guaranteeing minimum common standards of protection of human rights – not legislating or harmonising legislation. They noted that Article 29 of the CRPD did not specify that any person with disabilities had the right to vote, but it did specify that persons who were entitled to vote should be furnished with sufficient means to enable them to exercise that right. The Government asserted in this regard that Spain provided all the means necessary to enable disabled persons to exercise their right to vote and their right to stand for election and to undertake public duties.", "51. The Government emphasised that the Spanish legal system provided everyone reaching the age of eighteen automatically acquired the right to vote. Disenfranchisement could only be effected by a judge after the lodging of a request by an interested party (that is to say a parent, guardian or public prosecutor); under the relevant law, not all types of intellectual or psychosocial disabilities constituted grounds for disenfranchisement – only when they were persistent and so serious that the person in question was not able to take care of himself or herself unaided; a decision to disenfranchise a person was to be taken by a judge in a procedure in which all due guarantees would be observed, and which would be subject to judicial review at a minimum of three levels of jurisdiction and subject to review in the event that the relevant circumstances changed.", "The Court’s assessment", "(a) The interpretation of the Convention in the light of relevant rules and principles of international law", "52. Despite its specific character as a human rights instrument, the Convention is an international treaty that is to be interpreted in accordance with the relevant standards and principles of public international law and, in particular, in the light of the Vienna Convention on the Law of Treaties of 23 May 1969. Pursuant to the Vienna Convention, the Court must establish the ordinary meaning to be given to terms within their context and in the light of the object and purpose of the provision from which they are taken. Thus, the Court has never considered the provisions of the Convention to constitute the sole framework of reference for the interpretation of the rights and freedoms enshrined therein. On the contrary, it must also take into account any relevant rules and principles of international law applicable in relations between the Contracting Parties (see, among many other authorities, Demir and Baykara v. Turkey [GC], no. 34503/97, § 67, ECHR 2008, Al ‑ Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 134, 21 June 2016, Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 123, 8 November 2016, and N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, § 172, 13 February 2020).", "53. At the same time, the Court reiterates that it has authority to ensure that the text of the European Convention on Human Rights is respected (see Aliyeva and Aliyev v. Azerbaijan, no. 35587/08, § 74, 31 July 2014). It is the Convention which the Court can interpret and apply; it does not have authority to ensure respect for international treaties or obligations other than the Convention (see Güzelyurtlu and Others v. Cyprus and Turkey [GC], no.36925/07, § 235, 29 January 2019).", "54. The Court acknowledges that other instruments can offer wider protection than the Convention (regarding the CRPD, for example, see Rooman v. Belgium [GC], no. 18052/11, § 205, 31 January 2019), but the Court is not bound by interpretations given to similar instruments by other bodies, having regard to the possible difference in the contents of the provisions of other international instruments and/or the possible difference in role of the Court and the other bodies (see Muršić v. Croatia [GC], no. 7334/13, § 113, 20 October 2016). The Court understands that the Convention should be interpreted, as far as possible, in harmony with other rules of international law.", "(b) Alleged violation of Article 3 of Protocol No. 1", "(i) General principles", "55. The Court has established that Article 3 of Protocol No. 1 guarantees individual rights, including the right to vote and to stand for election (see, inter alia, Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 51, Series A no. 113, and Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 385 22 December 2020). However, the rights guaranteed under Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations, and the Contracting States have a margin of appreciation in this sphere, which generally is a wide one (see the above-cited cases of Mathieu-Mohin and Clerfayt, § 52, and Selahattin Demirtaş, § 387). The Court reiterates, however, that if a restriction on the right to vote applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, such as the mentally disabled, then the State’s margin of appreciation is substantially narrower (see Alajos Kiss, cited above, § 42).", "56. It is for the Court to finally determine whether the requirements of Article 3 of Protocol No. 1 have been complied with. It has to satisfy itself that the limitations imposed on the exercise of the rights under Article 3 of Protocol No. 1 do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Mathieu-Mohin and Clerfayt, cited above, § 52, and Selahattin Demirtaş, cited above, § 387).", "57. In addition, any conditions imposed must not thwart the “free expression of the people in their choice of legislature” (see Selahattin Demirtaş, cited above, § 388). In other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws that it promulgates. The exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (see, among other authorities, Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 62, ECHR 2005 IX, and Scoppola v. Italy (no. 3) [GC], no. 126/05, § 84, 22 May 2012). More specifically, election results should not be obtained through votes cast in a manner that runs counter to the fairness of elections or the free expression of the will of voters.", "58. The Court has stated that “since the Convention is first and foremost a system for the protection of human rights, it must have regard to the changing conditions within the respondent State and within Contracting States generally and respond, for example, to any emerging consensus as to the standards to be achieved. In this regard, one of the relevant factors in determining the scope of the authorities’ margin of appreciation may be the existence or non-existence of common ground between the laws of the Contracting States” (see Sitaropoulos and Giakoumopoulos v. Greece [GC], no. 42202/07, § 66, ECHR 2012).", "59. The Court reiterates that the presumption in a democratic State must be in favour of the inclusion of all, and that universal suffrage is the basic principle (see Hirst (no. 2 ), cited above, § 59; Sitaropoulos and Giakoumopoulos, cited above, § 67, and Scoppola (no. 3), cited above, § 82). This does not mean, however, that Article 3 of Protocol No. 1 guarantees to persons with a mental disability an absolute right to exercise their right to vote. Under this provision, these persons are not immune to limitations of their right to vote, provided that the limitations comply with the conditions set out above (see paragraphs 58 and 59 above). It is not for the Court to express an opinion on whether Article 29 of the CRPD imposes stricter obligations on the States that are parties to that convention. For the purpose of the interpretation of Article 3 of Protocol No. 1, the Court notes the fact that there is at present no consensus among the States Parties to Protocol No. 1 in the sense of an unconditional right of persons with a mental disability to exercise their right to vote. On the contrary, a majority of these States seems to allow for restrictions based on the mental capacity of the individual concerned (see paragraph 27 above).", "60. The margin of appreciation left to the States is not unlimited. The Court has already stated that an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties, does not fall within any acceptable margin of appreciation (see Alajos Kiss, cited above, § 42). Likewise, an indiscriminate removal of voting rights, without an individualised judicial evaluation and solely based on a mental disability necessitating partial guardianship, cannot be considered compatible with the legitimate grounds for restricting the right to vote (ibid., § 44).", "61. By contrast, the Court has accepted as legitimate the aim of “ensuring that only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs” (ibid., § 38).", "(ii) Application to the present case", "62. The Court will now examine whether the disenfranchisement of the applicant’s daughter pursued a legitimate aim in a proportionate manner, having regard to the principles identified above. It will also examine whether the limitation of the applicant’s daughter’s right to vote interfered with the free expression of the opinion of the people.", "(α) Legitimate aim", "63. The Court points out that Article 3 of Protocol No. 1 does not, as do other provisions of the Convention, specify or limit the aims that a restriction must pursue. A wide range of purposes may therefore be compatible with Article 3 (see Hirst (no. 2), cited above, § 74, and Alajos Kiss, cited above, § 38).", "64. The Court accepts that the measure complained of pursued the aim of ensuring that only citizens capable of assessing the consequences of their decisions and of making conscious and judicious decisions should participate in public affairs. It is therefore satisfied that the measure pursued a legitimate aim (see paragraph 61 above).", "(β) Proportionality", "65. The Court observes that at the relevant time the Spanish system did not establish an automatic bar on voting in respect of persons under guardianship in situations similar to that of the applicant’s daughter, but took into account such persons’ actual faculties, which were to be analysed during judicial proceedings brought in order for such persons to be declared incapable.", "66. The Court notes, with respect to legal incapacitation in general of persons with disabilities, that the presumption in Spanish law is that they have the legal capacity and ability to act, except in cases where the degree of disability is such that it prevents them from caring for themselves. Accordingly, those who suffer from a mental illness that prevents them from caring for themselves may be declared incapable and placed under the guardianship of a tutor or a curator (see paragraph 17 above). However, guardianship does not automatically lead to disenfranchisement.", "67. At the time of the events in question, Spanish law provided for the deprivation of the right to vote only in respect of the most serious cases of disability and in respect of persons ruled incapacitated by a final judicial decision (always revisable according to the personal circumstances) declaring specifically that the person in question was incapable of exercising the right to vote (see paragraph 18 above).", "68. The Court notes that Spain in 2018 eliminated the possibility of restricting disabled people’s right to vote (see paragraph 19 above). This means that the applicant’s daughter has been entitled to exercise her right to vote since the entry into force of the Law 2/2018 amending the LOREG. Nevertheless, the fact that the law was amended in 2018 in such a way as to return voting rights to all persons with a mental disability, without exception, does not imply that the previous system was incompatible with the requirements of Article 3 of Protocol No. 1.", "69. The Court reiterates that in respect of the restriction of the rights of mentally disabled persons the margin of appreciation is relatively narrow (see paragraph 55 above); an individualised judicial evaluation of the cognitive capacity is therefore required, and it must be demonstrated that the limitation is not solely based on a mental disability necessitating partial guardianship (see Alajos Kiss, cited above, § 44).", "70. The Court will therefore examine whether the domestic courts thoroughly examined the justification of the limitation of the daughter’s rights, in the light of the Convention principles.", "71. As indicated above, the applicant’s daughter did not lose her right to vote as the result of the imposition of an automatic, blanket restriction on the franchise of those under guardianship but as the result of an explicit decision taken in the course of separate incapacity proceedings that were initiated at the request of her parents (contrast Alajos Kiss, cited above, § 43). The Court notes that those proceedings were initiated in December 2013 (shortly before M. reached the age of 18) after her parents lodged an application for her to be deprived of her legal capacity and for their guardianship over her to be extended. Her parents initiated the proceedings because they were aware that their daughter had serious problems that rendered her unable to manage her life on her own.", "72. As noted above, four different judicial bodies were involved in the assessment of the “fitness to vote” (see Alajos Kiss, cited above, § 41) of the applicant’s daughter. The First-Instance Judge examined the applicant’s daughter’s legal capacity in depth and – after weighing the interests at stake and evaluating the evidence and reports made within that process – ruled that the guardianship should be extended and that M. should be deprived of her right to vote because she had a lack of cognitive skills to understand the meaning of a vote and was prone to be influenced very easily (see paragraphs 6-8 above). That decision was confirmed by the Regional Court on appeal (see paragraph 10 above). The latter’s decision was upheld by the Supreme Court after an appeal on points of law. The Supreme Court examined the substance of the appeals lodged by the applicant and found that the decision of the Regional Court had contained a thorough analysis of the case and had correctly balanced the interests at stake (see paragraph 12 above). Finally, the Constitutional Court dismissed an amparo appeal, after having found that the contested judicial decisions were based on an individualised examination of the applicant’s daughter’s situation and did not manifest any arbitrariness, irrationality or obvious error (see paragraph 14 above).", "73. Having regard to the foregoing, in particular the fact that the removal of the applicant’s daughter’s voting rights was based on her lack of understanding of the meaning of a vote and her susceptibility to being influenced, the Court concludes that her disenfranchisement was not disproportionate to the legitimate aim pursued.", "(γ) The free expression of the opinion of the people", "74. The Court emphasises that an overriding obligation under Article 3 of Protocol No. 1 is to “ensure the free expression of the opinion of the people”. Any limitation of the right to vote must therefore be analysed not only from the perspective of the individual concerned, but also from the perspective of democratic society as a whole, since each individual’s right is embedded within the broader framework of the electoral system. That system must be “aimed at identifying the will of the people through universal suffrage” (see paragraph 57 above). Such a result can only be obtained through a voting process that allows for the people freely expressing their opinion in the choice of the legislature.", "75. It is for each State to determine how the “free” expression of the opinion of the people is to be ensured while at the same time making provision that the opinion expressed represents the one “of the people”. The survey of 28 Member States of the European Union shows that while a number of States put the emphasis on the right of all people to participate in the elections, other States put the emphasis on the requirement of a free and self-determined electoral choice by the voters, thus prohibiting persons with certain mental disabilities from participating in the elections (see paragraphs 27-28 above). Article 3 of Protocol No. 1 does not impose either one of these systems. The Court considers that both systems fall within the margin of appreciation of the States, as long as -in the second system- the conditions for disenfranchisement are such that they apply only to those persons who are effectively unable to make a free and self-determined electoral choice.", "76. Having regard to the reasons for the exclusion of the applicant’s daughter from the electoral process (see paragraphs 71-73 above), the Court considers that the contested measure does not thwart the free expression of the opinion of the people.", "(δ) Conclusion", "77. In the light of the above, the Court considers that the decision taken by the domestic courts in the present case falls within the margin of appreciation of the States to regulate the right to vote. The disenfranchisement of the applicant’s daughter took place on the basis of her personal circumstances and by means of judgments that were delivered following a thorough analysis of her mental capacity. Contrary to the applicant’s assertion, M. was not deprived of the right to vote simply because she belonged to a certain group of persons. Her disenfranchisement cannot be considered to thwart the free expression of the opinion of the people in the choice of the legislature.", "78. Having regard to the foregoing, the Court concludes that there has been no violation of Article 3 of Protocol No. 1 to the Convention.", "(c) Alleged violation of Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1, and of Article 1 of Protocol No. 12", "79. The Court has stated that, in spite of the difference in scope between Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention, the meaning of the notion of “discrimination” in Article 1 of Protocol No. 12 is intended to be identical to that in Article 14 (see paragraphs 18 and 19 of the Explanatory Report to Protocol No. 12). In applying the same term under Article 1 of Protocol No. 12, the Court therefore sees no reason to depart from the established interpretation of “discrimination”. It can be inferred that, in principle, the same standards developed by the Court in its case-law concerning the protection afforded by Article 14 are applicable to cases brought under Article 1 of Protocol No. 12 (see Napotnik v. Romania, no. 33139/13, § 69 and 70, 20 October 2020).", "80. The Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without objective and reasonable justification, of individuals in analogous, or relevantly similar, situations. In other words, the requirement to demonstrate an analogous position does not require that the comparator groups be identical. For the purposes of Article 14, a difference in treatment is discriminatory if it “has no objective and reasonable justification” – that is to say if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see Napotnik, cited above, § 71).", "81. The Court has also established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017).", "82. The Court notes, in respect of the instant case, that the right to vote of the applicant’s daughter was restricted because of her limited mental capacity. The difference in treatment between the daughter (whose right to vote was restricted) and persons who had the right to vote was therefore based on the respective mental capacity of each person. The Court considers that (in respect of restrictions on the right to vote) a difference in treatment based on such grounds pursues a legitimate aim and that there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The assessment underlying the Court’s conclusion that the interferences with the right to vote of the applicant’s daughter were justified under Article 3 of Protocol No. 1 took into account the applicant’s daughter special status (that is to say the fact that the degree of her legal capacity had been modified). These considerations are equally valid within the context of Article 14 and, even assuming that the applicant’s daughter can be deemed to be in a comparable position to other persons whose legal capacity has not been modified, justify the difference of treatment complained of.", "83. In view of the foregoing, the Court concludes that there has been no violation of either Article 14 of the Convention, read in conjunction with Article 3 of Protocol No. 1, or Article 1 of Protocol No. 12." ]

[ "2. The first applicant, Mr Toplak, was born in 1937 and lived in Maribor. The second applicant, Mr Mrak, was born in 1983 and lives in Ljubljana. They were represented by Mr S. Vesenjak, a lawyer practising in Maribor.", "3. The Government were represented by their Agent, Mrs B. Jovin Hrastnik.", "4. On 19 July 2019 the first applicant died. His daughters, Nataša Toplak and Renata Toplak, informed the Court that they wished to continue the proceedings before the Court in his stead.", "5. The facts of the case, as submitted by the parties, may be summarised as follows.", "6. The applicants were, together with a number of other voters with disabilities, involved in numerous sets of proceedings aimed at improving the access of people with disabilities to the voting process. The sets of proceedings detailed below constitute only a minor part of this larger endeavour, in which the claimants were mainly unsuccessful before the Slovenian courts, except for petitions for constitutional review leading to the Constitutional Court’s decision of 2014, which is summarised below (see paragraphs 43-45 below).", "The applicants’ disability", "7. Both applicants had muscular dystrophy and used electric wheelchairs for mobility. The first applicant’s condition deteriorated in 2018, which meant that he was no longer able to hold a pen.", "2015 Referendum", "8. In 2014 the Constitutional Court ruled that the legislature should, within two years, adopt legal provisions ensuring the accessibility of all polling stations to people with disabilities (see paragraphs 43-45 below). In 2015 almost 50% of polling stations in Slovenia were physically accessible to people with disabilities.", "9. Further to the decision by the National Assembly of 4 November 2015, the National Election Commission (“the National Commission”) announced that a referendum concerning amendments to the Marriage and Family Relations Act would be held on 20 December 2015 (“the 2015 Referendum”). The announcement provided, inter alia, that voters with disabilities who considered that the polling station of their local electoral area was not accessible to them should inform their district election commission (“the district commission”) in advance of their intention to vote at a polling station that was accessible to people with disabilities or at a polling station with an available voting machine.", "Relevant events before the 2015 Referendum and the proceedings relating to the legal actions brought by the applicantsThe first applicant", "The first applicant", "The first applicant", "10. On 16 November 2015 the National Commission received a letter from the first applicant in which he requested that the polling station for his local electoral area be accessible for people with disabilities. He specified the required width of the path and ramp, the angle of the ramp, and its bearing capacity, and requested access to the voting booth, voting table and ballot box. The National Commission forwarded his letter to the district commission in Maribor, asking it to verify whether the polling station indicated in the first applicant’s request could be accessed without obstacles by people with disabilities and, if not, whether it would be possible to install a ramp in accordance with the technical requirements specified by the first applicant.", "11. On 21 November 2015 the first applicant, together with another person, Š., brought an action in the Administrative Court against the National Commission seeking (i) the provision of access for people with disabilities at their local polling station and (ii) the ordering of an interim measure in order to ensure the accessibility of that polling station during the upcoming referendum. The first applicant and Š. argued that all voters, including those with a disability, had the right to vote at the polling station for their local electoral area and requested that the Administrative Court order the State to ensure on the day of the referendum (20 December 2015), and for all subsequent referendums and elections, that their respective polling stations would be wheelchair-accessible; this would entail the making of all necessary adjustments to voting booths and ballot boxes. They set out specific details concerning wheelchair accessibility. On 3 December 2015, the claimants specified that the action had been brought under section 4 of the Administrative Disputes Act (see paragraph 48 below) in respect of an alleged violation of human rights.", "12. In the meantime, on 23 November 2015 the National Commission asked a private company to provide it with a price quote for installing a ramp for the entrance to the first applicant’s local polling station. The following day the director of the National Commission informed the first applicant that his polling station would be equipped with a ramp. On the same day, his nephew replied on behalf of the first applicant, asking for confirmation that other conditions set out in his request would also be complied with.", "13. On 4 December 2015 the Administrative Court issued a judgment and decision dismissing the action and rejecting a motion for an interim measure. It pointed out that the two-year deadline for remedying the incompatibility of the National Assembly Elections Act (“the Elections Act”) with the Constitution imposed on the legislature by the Constitutional Court’s decision had not yet expired (see paragraphs 43-45 below). It was furthermore noted that the claimants’ access to their local polling station had been ensured and that their assumptions regarding the inaccessibility of voting booths and ballot boxes were based only on certain past experiences. Certain ad hoc adaptations could be made in practice (regardless of the existing regulatory framework), and it was up to the electoral bodies to do what was necessary to secure the rights of voters. The court referred to the correspondence between the first applicant, the National Commission and the district commission and found that the first applicant had failed to prove an interference with his right to vote.", "14. On 10 December 2015 – that is to say prior to the 2015 Referendum – the first applicant and Š. lodged an appeal. They also requested the Supreme Court to issue an interim decision ordering the necessary adjustments to be made before the 2015 Referendum. The request for the interim decision was dismissed on 16 December 2015 by the Supreme Court, which found, inter alia, that the defendant had undertaken to secure the conditions necessary for the appellants to exercise their right to vote, in line with the Constitution and the relevant legislation. On 5 July 2016 the Supreme Court rejected the appeal lodged by the first applicant and Š., explaining that, under section 4 of the Administrative Disputes Act, the judicial protection of human rights was possible only if a different form of judicial protection had not already been available. In the instant case, however, protection had already been offered under the Referendums and Popular Initiatives Act (“the Referendums Act”) (see paragraph 46 below). Furthermore, the judicial protection provided under section 4 of the Administrative Disputes Act was not intended to protect against future actions that could potentially interfere with a person’s legal position, but rather only related to acts that had already occurred.", "15. On 12 September 2016 the first applicant and Š. lodged a constitutional complaint (no. Up 771/16). They alleged, inter alia, that the Administrative Court had violated their right to non-discrimination in the exercise of their right to participate in the management of public affairs (as protected, respectively, by Articles 14 and 44 of the Constitution) and that the Supreme Court had denied them the only effective remedy. At the same time the first applicant lodged a petition for a review of the constitutionality of several statutes that allegedly failed to provide for the speedy resolution of election-related disputes.", "16. On 5 December 2018 the Constitutional Court decided not to accept the constitutional complaint for consideration. It specified that the petition for constitutional review would be dealt with separately (see paragraph 32 below). The decision was served on the first applicant on 31 December 2018.", "The second applicant", "17. On 16 November 2015 the National Commission received a letter from the second applicant requesting that the polling station for his local electoral area be made accessible to people with disabilities. In his letter, the second applicant set out the changes that would be necessary in order to render the polling station accessible to people with disabilities; those specifications were similar to those set out by the first applicant (see paragraph 10 above). The director of the National Commission contacted the second applicant’s district commission, which replied that the second applicant’s local polling station, which was a school, would be accessible to wheelchair users. After being informed of this the second applicant pointed out that the school was surrounded by a fence and that the ballot boxes were normally on a higher floor, which could be accessed only by stairs. In further correspondence, the district commission affirmed that the polling station was accessible and submitted photos in this regard. The second applicant noticed that the photos showed a side entry, which previously he had not been able to use, and proposed that a visit of the school be carried out in order to verify the accessibility of the premises.", "18. On 17 December 2015 an official note was made by the district commission, which indicated that the second applicant had made a visit and that it had been established that access to the polling station had been arranged directly from the parking area through the side entry to the school, which was equipped with a ramp. There was also a ramp leading to the floor on which the polling rooms were situated. It was also noted that the school had in the past had a pupil with a disability who had used the ramp and that all other voters would be entering the building this way in order to prevent any kind of discrimination. This polling station was subsequently also formally declared accessible to people with disabilities.", "19. In the light of the lack of proper access for people with disabilities to their local polling station (in contravention of both section 9 of the Equality of Opportunities for People with Disabilities Act and the Constitution), on 17 December 2015 the second applicant, together with another person, A., brought an action in the Administrative Court seeking the provision of access to their local polling station for people with disabilities, and lodged with the Administrative Court an application for the ordering of an interim measure against the National Commission and the district commissions concerned. The second applicant and A. submitted arguments similar to those submitted by the first applicant and Š. (see paragraph 11 above).", "20. On 18 December, the Administrative Court dismissed both the action (after examining it under section 4 of the Administrative Disputes Act) and the request for an interim measure. Referring to the above-mentioned correspondence between the second applicant and the electoral bodies, the visit that had been carried out, and the submissions made by the National Commission during the proceedings, the court found that the defendants had ensured that the second applicant’s local polling station would be accessible to people with disabilities. It also noted that upon receiving a request from a voter with disabilities, the relevant authorities were under an obligation to do everything within their power to ensure necessary and appropriate changes and adaptations, provided that they did not impose a disproportionate or unnecessary burden. This was so regardless of whether such an obligation was set out also by the relevant legislation.", "21. On 4 January 2016, the second applicant and A. lodged an appeal. They described the situation at the polling station on the day of the 2015 Referendum. The second applicant indicated that he had been able to access the polling station with his wheelchair, mark and deposit his ballot paper, and leave. However, he alleged that the ramp by the entrance had been steep and thus not in compliance with accessibility standards. In his submissions, he stated that he had been afraid when using the ramp, and that when he had been using the ramp he had needed assistance from a passer-by. He asserted that he had suffered discrimination because he had not been able to make his way along the ramp without the assistance of others.", "22. On 5 July 2016 the Supreme Court rejected the appeal on the same grounds as those cited as justification for the rejection of the appeal lodged by the first applicant and Š. (see paragraph 14 above).", "23. On 12 September 2016 the second applicant and A. lodged a constitutional complaint (no. Up-770/16) containing similar arguments to those submitted by the first applicant and Š. in their own constitutional complaint (see paragraph 15 above). They alleged, inter alia, that on the day of the 2015 Referendum their polling stations had been inaccessible.", "24. On 28 January 2019, the Constitutional Court decided not to accept for consideration the constitutional complaint of the second applicant and A. The decision was served on the second applicant on 5 February 2019.", "The applicants’ participation in the 2015 Referendum", "25. Both applicants voted in the 2015 Referendum. In his application form, the first applicant did not submit any details concerning his voting. In his observations he acknowledged that he had voted. He furthermore explained that he had been accompanied by several people, including his daughter and nephew, who had recorded a video and published it on Facebook on the same day. According to the first applicant, owing to the positioning of the furniture he had only been able to cast his vote in the middle of the room on the table with several people around him, which had compromised the secrecy of his vote. The election committee had allegedly not permitted the voting booths to be moved. Photos published on Facebook by the first applicant’s nephew, Mr Jurij Toplak, and subsequently submitted by the first applicant’s representative show the first applicant proceeding independently up the ramp leading to the polling station. They also show him inside the polling station at a table divided by a partition. The table appears to be of a height that would have allowed the first applicant to access the material left on it. One person is standing next to him. It is unclear whether that person was helping the first applicant or was marking his own ballot paper. One more person can be seen on the other side of the table (possibly behind the partition). The photos on Facebook were accompanied by text that read: “My uncle, Franc Toplak, voted in an accessible polling station today. One polling station adjusted, 3000 to go.”", "26. The second applicant submitted that he had had to wait outside the polling situation until he had asked a passer-by to push him up the ramp, which was situated at the back entrance. He seemed, moreover, to imply that the voting booth and ballot box that he had used had not been adjusted to the needs of people with disabilities.", "2019 EUROPEAN PARLIAMENT elections", "27. Under the Elections Act, as amended by the 2017 Amendment (see paragraph 42 below), all polling stations were required to be accessible to people with disabilities as of 1 February 2018. It is unclear what, other than entry to the polling station, the required level of accessibility involved. The Government submitted that, in general, the furniture inside polling stations (tables and chairs) was of standard dimensions, partitions designed to secure the secrecy of the voting procedure were positioned on the floor and the ballot boxes were placed on tables.", "28. On 9 April 2019 the National Commission announced that elections to choose Slovenian members of the European Parliament (“the 2019 EP Elections”) would be held on 26 May 2019. The announcement included the information that voters with disabilities should inform their local district commission if they wished to vote by post. It also provided that those who could not vote at the polling station owing to illness should inform the relevant district commission by 22 May 2019 of their intention to vote from home. Requests to be permitted to vote by mail or from home could also be made via a dedicated Internet site.", "29. The first applicant submitted in his application form that a ramp had been installed but that in all other aspects the polling station had not been rendered accessible. The second applicant submitted that his polling station “[had not been] made accessible in any way”. They both submitted that they had been unable to “enter a little polling room with a wheelchair [owing] to a narrow door entry [and that] the ballot box and the desk [had been] too high and inaccessible, and no accessible voting methods or equipment [had been] available”. It can be seen from the submissions lodged by the first applicant, in reply to those of the Government, that he did not participate in the 2019 EP Election owing to a deterioration in his condition. According to him, he had no longer been able to use a pen and had not wished to be assisted by another person.", "30. The Government submitted copies of the voting directory from the second applicant’s local polling station; the directory contained the name and signature of the second applicant, who had apparently voted in the election. The records of the election committee responsible for the second applicant’s local polling station do not contain any complaint made by participants.", "review of legisation by the constitutional court", "31. On 28 September 2018 a number of petitioners, including the second applicant, requested to be allowed to join the proceedings in respect of the petition for constitutional review lodged by the first applicant (see paragraphs 15 and 16 above). Together with the first applicant, they submitted additional arguments concerning, inter alia, sections 79 and 79a of the Elections Act (see paragraphs 40 and 42 below). They submitted that the Constitutional Court’s 2014 decision, which required all polling stations to be accessible to people with disabilities (see paragraphs 43-45 below), had been implemented by the amendments to the Elections Act as far as the physical accessibility of polling stations was concerned (see paragraph 42 below), but not with respect to voting machines. They emphasised that proceedings that concerned elections and were initiated in a timely manner should be completed before the election day in question. They also submitted that polling stations could be properly adjusted before local elections that were to take place in two months’ time.", "32. On 21 February 2019 the Constitutional Court rejected as manifestly ill-founded the petition for constitutional review in so far as it concerned the issue of a speedy resolution of election-related disputes. As regards sections 79 and 79a of the Elections Act (see paragraphs 38-42 below) and the issue of the non-implementation of the Constitutional Court’s 2014 decision, it noted that the conditions for suspending the effect of the above-mentioned provisions had not been met but that consideration of the petition would be given absolute priority.", "33. On 22 October 2020 the Constitutional Court delivered a decision in which it examined the implementation of its 2014 decision (see paragraphs 43-45 below). It found that the Elections Act, as amended by the 2017 Amendment (see paragraph 42 below), was not incompatible with the Constitution. It noted that section 79a, which had been inserted into the Elections Act by the 2017 Amendment, explicitly provided that polling stations must be accessible to people with disabilities and that the petitioners themselves had considered that as regards this aspect the Constitutional Court’s 2014 decision had been properly implemented. As regards the availability of voting machines, it noted that the use of voting machines had been ended by the 2017 Amendment and that a new assessment of the compatibility of the election legislation with the Constitution was required in that respect. The Constitutional Court noted that the petitioners’ main argument was that the legislature should have adopted measures that would allow every person with a disability to vote autonomously, under conditions of secrecy, and at the nearest polling station to his or her residence without having to give advance notice of his or her attendance.", "34. The Constitutional Court cited: the United Nations Convention on the Rights of People with Disabilities (“the CRPD”) – especially Article 29 thereof; the Venice Commission’s Revised Interpretative Declaration to the Code of Good Practice in Electoral Matters on the Participation of People with Disabilities in Elections; and the Parliamentary Assembly of the Council of Europe’s resolution entitled “The political rights of people with disabilities: a democratic issue” (see paragraphs 54, 58, 59 and 60-62 below).", "35. The Constitutional Court took account of the arguments submitted by the Government and the National Assembly – specifically, that only a very small number (in 2015 only 0.2% of people with disabilities) had used voting machines, that such machines could not facilitate voting by people suffering from all types of disability, that their use was very expensive and that a new mode of voting for people with disabilities (namely, voting by post) had been introduced by the 2017 Amendment. The Constitutional Court also noted that the Elections Act also provided for assisted voting and that that mode of voting was also envisaged in the above-mentioned international instruments. Referring to the relevant provisions of the Elections Act and the Penal Code, the Constitutional Court stated that the law should be interpreted as imposing on the person assisting the person with a disability the obligation to respect the secrecy of the ballot. It also noted that election committees (see paragraphs 38 and 40 below) had little scope to exercise discretion in taking decisions. When confronted by a person with a disability an election committee had merely – as regards the voting assistants – to ascertain his or her identity and to note his or her name in its records. The Constitutional Court furthermore examined the regulation governing voting at home, which it considered to be applicable also to people with disabilities. The Constitutional Court, referring to a “reasonable accommodation” ( primerna prilagoditev ), noted that the legislature was under the obligation to ensure that people with disabilities could as much as possible exercise their right to vote in person, autonomously, in conditions of secrecy and at a polling station, but that the legislature was not under an obligation to adopt measures that would impose a disproportionate or unnecessary burden.", "36. The Constitutional Court went on to note that a 2018 decision of the United Nations Committee on the Rights of People with Disabilities (“the CRPD Committee”) concerning a case brought by Fiona Given against Australia (see paragraph 57 below), on which the petitioners had relied, could not be understood as having done away with the concept of a “disproportionate burden”. It furthermore noted that only three European countries (Belgium, France and Bulgaria) continued to use voting machines to a different extent, and that voting with the assistance of another person was a method of voting permitted in almost all European countries. The Constitutional Court concluded that assisted voting, as regulated in Slovenia, was in line with the principle of reasonable accommodation." ]

[ "relevant domestic LEGAL FRAMEWORK AND PRACTICE", "the Constitution", "37. The relevant parts of the Constitution of the Republic of Slovenia read as follows:", "Article 90 (Legislative Referendum)", "“...The right to vote in a referendum is enjoyed by all citizens who are eligible to vote in elections ...”", "Article 160 (Powers of the Constitutional Court)", "“The Constitutional Court decides:", "on the conformity of laws with the Constitution;", "on the conformity of laws and other regulations with ratified treaties and with the general principles of international law;", "....", "on constitutional complaints stemming from the violation of human rights and fundamental freedoms by individual acts; ...”", "Legislation and case-lawVotingLegalisation", "VotingLegalisation", "Legalisation", "VotingLegalisation", "Legalisation", "Legalisation", "38. The Elections Act (the National Assembly Elections Act) regulates elections to the National Assembly. Its provisions are also used, mutatis mutandis, with respect to European Parliament elections and public referendums. It was enacted in 1992. On 20 April 2017 it was amended by the 2017 Amendment, which was enacted following the Constitutional Court’s 2014 decision (see paragraphs 43-45 below). Pursuant to the Elections Act there are eight electoral constituencies which are each further divided into eleven electoral districts. Elections are run by electoral bodies, that is by constituency election commissions (one for each electoral constituency), district election commissions (one for each electoral district) and election committees (one for each polling station), which each have different responsibilities. The Elections Act provides that voters should normally exercise their right to vote at the polling station in the local area of their permanent residence. Such areas are determined by the district election commissions for each electoral district. The district election commissions also issue decisions appointing members of election committees which are responsible for practical tasks, such as registering the voters and handing out the ballot papers, and for ensuring that voting at the polling stations is carried out in accordance with law. The National Election Commission ensures the legitimacy of elections and the uniform application of the provisions of the Elections Act. It also co-ordinates and oversees the work of, inter alia, district election commissions.", "39. The Elections Act and the Referendums Act (the Referendums and Popular Initiatives Act) provide that the right to vote in elections or referendums, respectively, should be exercised in person, freely and by secret ballot.", "40. Under the Elections Act, if a voter has difficulties casting his or her vote owing to a physical disability or to illiteracy, he or she has the right to be accompanied by a person who will help him or her to complete or deposit his or her ballot paper. A decision thereon shall be taken by the election committee and shall be entered in the minutes (section 79). Voters who cannot go in person to the polling station for reasons of illness may vote in their homes before an election committee (section 83).", "41. Until 31 January 2018 the Elections Act provided that each district commission should designate at least one polling station that would be accessible to people with disabilities in that electoral district. At that polling station, the district commission could also facilitate voting by way of specially adapted ballots and voting machines.", "42. Since 1 February 2018, under the 2017 Amendment (see paragraph 38 above) all polling stations have had to be accessible to people with disabilities, while the possibility of voting by voting machine is no longer provided for (section 79a of the (amended) Elections Act). The 2017 Amendment introduced an additional voting option for people with disabilities, namely voting by post (as of 20 May 2017). Prior to the 2017 Amendment this option was limited to people residing in homes for the elderly and voters undergoing hospital treatment.", "The Constitutional Court’s 2014 decision", "43. In decision no. U-I-156/11, Up-861/11 of 10 April 2014, the Constitutional Court assessed the compliance of the Elections Act with the Constitution, pursuant to a petition lodged by, inter alios, H. and the second applicant. It found that the relevant provision of that Act did not constitute an appropriate “accommodation” sufficient to enable people with disabilities to independently physically access polling stations in public buildings; that shortcoming was in breach of the right of people with disabilities to non-discriminatory treatment (and thus constituted indirect discrimination) in respect of their right to vote. In particular, it found that not all polling stations were physically accessible to voters with disabilities, even though achieving such accessibility would not have entailed placing a disproportionate or unnecessary burden on the State. It changed its previously expressed view (given in respect of case no. U-I-25/10) to the effect that it sufficed for electoral bodies to inform the public of those polling stations that were physically accessible to people with disabilities. It now required all polling stations to be accessible.", "44. With regard to the selection of polling stations that enabled the possibility to vote with the help of specially adapted ballots and voting machines, the Constitutional Court found that that had been left entirely to the discretion of district election commissions, which was unconstitutional. While all polling stations had been equipped with a tactile voting device for blind people, the same was not true for voting machines. The Constitutional Court, however, acknowledged that the provision of voting machines was a costly project and noted that that was a factor that could be taken into account by the legislature when formulating new regulatory measures in this field. It also noted that in the previous round of elections fifty-five polling stations had been equipped with voting machines. It left open the question of whether any new regulation that would lead to fewer, equal or more voting machines would be compatible with the Constitution.", "45. The Constitutional Court ordered that the incompatibility with the Constitution be remedied within two years of the publication of its decision. It furthermore addressed the constitutional complaint lodged simultaneously by H. It found that as the elections concerned had already been completed, a favourable outcome could have not improved H.’s legal position. In the court’s view, H. had achieved the aim that he had pursued through the constitutional complaint, as the petition that he had simultaneously lodged had been successful and he had therefore succeeded in improving his situation for the next elections. He thus had no legal interest in a decision on the constitutional complaint.", "RemediesSystem of appeal under the electoral law", "System of appeal under the electoral law", "System of appeal under the electoral law", "46. Under the Elections Act, each voter may lodge a complaint with his or her constituency election commission (see paragraph 38 above) regarding any irregularities in the work of the election committee or of the district election commission. A complaint may be lodged within three days of the election day in question. The constituency election commission must decide on such a complaint within forty-eight hours and then (if necessary) take remedial measures (for example, annul and re-run the voting within the electoral district in question or determine again the results) only if complained of irregularities in respect of the voting or the work of the election bodies considerably affected or could affect the results of the election. Similar provisions are contained in the Referendums Act, under which voters may lodge complaints with the National Commission. The latter may take remedial measures only if irregularities influenced or could have influenced the outcome of the referendum in question.", "47. The Elections Act and the Referendums Act differ as regards the remedies that they respectively provide in respect of a decision issued by an electoral body dismissing a complaint lodged by a voter. Under the Referendums Act, a voter may lodge an appeal with the Administrative Court, which must decide on such an appeal within forty-eight hours. However, no such appeal is provided for under the Elections Act, and according to a Constitutional Court decision (U-I-100/13, Up-307/12) of 10 April 2014, the only court with the authority to decide such cases is the Constitutional Court. The decisive question in proceedings under any of the above-mentioned Acts is whether the alleged irregularities considerably affected or could have affected the results of the voting; only when this is so can such complaints be upheld (ibid.; see also Constitutional Court decision U-I-191/17 of 25 January 2018).", "Remedies concerning violations of human rights", "(a) The Administrative Disputes Act", "48. In an administrative dispute, the court concerned shall rule on the legality of (i) final administrative acts that encroach on the legal status of the plaintiff and (ii) the legality of individual acts and actions interfering with human rights and fundamental freedoms, unless a different form of judicial protection is ensured. In cases of an alleged infringement of human rights (section 4), the plaintiff may lodge an application seeking (i) the annulment, issuance or modification of the act in question, (ii) official recognition that there has been a violation of human rights, (iii) the prohibition of the continuation of the interference, and (iv) the elimination of the consequences of the interference (section 33). Such an application must be lodged within thirty days of the delivery of the act in question or within thirty days of the relevant interference with human rights.", "49. By decision no. Uv 9/2014 of 22 July 2014 the Supreme Court rejected an appeal against a certain decision adopted by a district election commission. It found that, given the fact that the election in question had already taken place, it would be possible to seek a finding of a violation of human rights under section 33 of the Administrative Disputes Act.", "50. The applicants submitted decisions from 2010, 2011 and 2013 by which the Administrative Court had rejected – on the merits – actions relating to access to voting brought by individuals with disabilities; in at least one of those cases, the Administrative Court’s decision had been upheld by the Supreme Court.", "(b) The Obligations Code", "51. Monetary compensation for non-pecuniary damage may be sought only in respect of cases specified in the Obligations Code. In judgment no. II Ips 99/2013 of 5 November 2015 concerning an instance of alleged discrimination against a voter with a disability, the Supreme Court noted that the right to vote could not be considered to constitute a “personality right” and that non-pecuniary damages could therefore not be awarded under the Obligations Code. An aggrieved party could, however, bring an action seeking a finding of a violation of human rights under section 4 of the Administrative Disputes Act (see paragraph 48 above).", "(c) The Protection against Discrimination Act", "52. The Protection against Discrimination Act entered into force on 24 May 2016. It established a special body for overseeing protection against discrimination – namely the Advocate of the Principle of Equality (“the Advocate”). The Protection against Discrimination Act defines what is meant by the term “discrimination”, and sets out measures to promote equal treatment, the procedure to be followed when lodging a complaint with the Advocate, and judicial remedies that may be sought. Under section 39, a claimant may bring an action seeking an end to discrimination, or compensation for discrimination, or the publication of the ruling in the media. Compensation should be paid by the perpetrator of the discrimination in question in an amount ranging from 500 to 5,000 euros. The duration of the discrimination in question, the severity of the discrimination and other factors shall be considered when determining the amount of compensation to be awarded. Provisions of the Act that govern civil procedure shall apply to the adjudication of an action lodged under section 39 of the Protection against Discrimination Act.", "53. The Protection against Discrimination Act replaced the Implementation of the Principle of Equal Treatment Act, which had been in force since 2004. Under the latter, people who had suffered discrimination had the right to compensation according to the general principles of civil law (that is to say only with respect to any pecuniary damage suffered, see paragraph 51 above).", "Relevant international material", "United Nations Convention on the Rights of People with Disabilities (CRPD) and related practice", "54. The relevant parts of the CRPD are set out in Guberina v. Croatia, no. 23682/13, § 34, 22 March 2016. Furthermore, the following passages from the CRPD, ratified by Slovenia on 24 April 2008, are particularly relevant to the present case:", "Article 29 - Participation in political and public life", "“States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake to:", "a. Ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by:", "i. Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use;", "ii. Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate;", "iii. Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice; ...”", "55. The CRPD Committee’s General Comment No. 2 (adopted on 11 April 2014), concerning Article 9 of the CPRD, reads, in so far as relevant, as follows:", "“14. .... The right to access for persons with disabilities is ensured through strict implementation of accessibility standards. Barriers to access to existing objects, facilities, goods and services aimed at or open to the public shall be removed gradually in a systematic and, more importantly, continuously monitored manner, with the aim of achieving full accessibility.", "...", "23. Since accessibility is a precondition for persons with disabilities to live independently, as provided for in article 19 of the Convention, and to participate fully and equally in society, denial of access to the physical environment, transportation, information and communication technologies, and facilities and services open to the public should be viewed in the context of discrimination. ...", "...", "25. Accessibility is related to groups, whereas reasonable accommodation is related to individuals. This means that the duty to provide accessibility is an ex ante duty. States parties therefore have the duty to provide accessibility before receiving an individual request to enter or use a place or service. ... Accessibility standards must be broad and standardized. In the case of individuals who have rare impairments that were not taken into account when the accessibility standards were developed or who do not use the modes, methods or means offered to achieve accessibility (not reading Braille, for example), even the application of accessibility standards may not be sufficient to ensure them access. In such cases, reasonable accommodation may apply. ... The obligation to implement accessibility is unconditional, i.e. the entity obliged to provide accessibility may not excuse the omission to do so by referring to the burden of providing access for persons with disabilities. The duty of reasonable accommodation, contrarily, exists only if implementation constitutes no undue burden on the entity.", "26. The duty to provide reasonable accommodation is an ex nunc duty, which means that it is enforceable from the moment an individual with an impairment needs it in a given situation ... Here, accessibility standards can be an indicator, but may not be taken as prescriptive. Reasonable accommodation can be used as a means of ensuring accessibility for an individual with a disability in a particular situation. ...”", "56. The relevant passages from the CRPD Committee’s General Comment No. 6 (adopted on 26 April 2018) on equality and non ‑ discrimination read as follows:", "“42. Because the gradual realization of accessibility in the built environment, public transportation and information and communication services may take time, reasonable accommodation may be used as a means to provide access to an individual in the meantime, as it is an immediate duty. ...", "...", "70. Exclusion from electoral processes and other forms of participation in political life are frequent examples of disability-based discrimination. They are often closely linked to denial or restriction of legal capacity. States parties should aim to:", "...", "(b) Ensure that the electoral process is accessible to all persons with disabilities, including before, during and after elections;", "(c) Provide reasonable accommodation to individual persons with disabilities and support measures based on the individual requirements of persons with disabilities to participate in political and public life; ...”", "57. Under the Optional Protocol to the CRPD, the CRPD Committee examined communication no. 19/2014, submitted by Fiona Given against Australia, in which the author, who suffered from cerebral palsy, complained that during federal elections in 2013 she had been given no choice but to vote with the aid of her attendant. She had been unable to use electronically assisted voting, which was normally available to people with visual impairments, and had been denied assistance by the electoral officer. On 16 February 2018 the CRPD Committee found that none of the options available to the author had enabled her to exercise her right to vote in the way that she had wanted – namely, without having to reveal her political choice to the person accompanying her. The CRPD Committee furthermore noted that access to the use of an electronic voting system would have enabled her to cast an independent and secret ballot without having to reveal her political choice to anyone, on an equal basis with others. It went on to find as follows:", "“8.9 In the present case, the [CRPD Committee] also recalls that the electronic voting option has been widely used for persons with visual impairments in New South Wales State elections since 2011. It also notes that the State party has not provided any information that could justify the claim that the use of such an electronic voting option would have constituted a disproportionate burden, so as to prevent its use in the 2013 federal election for the author and for all persons requiring such accommodation. The [CRPD Committee] also recalls that article 5 enshrines the principle of equal protection of all persons before and under the law. States parties must prohibit all disability-based discrimination and provide persons with disabilities effective and equal protection against discrimination on all grounds. [reference omitted] This conventional obligation implies that States parties must ensure the realization of the rights under the Convention for all persons with disabilities, and refrain from establishing discriminatory legislation and practice that can result in factors of discrimination depending on the type of impairment.", "8.10 The [CRPD Committee] therefore finds that the failure to provide the author with access to an electronic voting platform already available in the State party, without providing her with an alternative that would have enabled her to cast her vote without having to reveal her voting intention to another person, resulted in a denial of her rights under article 29 (a) (i) and (ii), read alone and in conjunction with articles 5 (2), 4 (1) (a), (b), (d), (e) and (g) and 9 (1) and (2) (g) of the Convention.”", "relevant council of europe documents", "58. The Revised Interpretative Declaration to the Code of Good Practice in Electoral Matters on the Participation of People with Disabilities in Elections (“the Revised Interpretative Declaration”) was adopted by the Council for Democratic Elections at its 39th meeting (Venice, 15 December 2011) and by the Venice Commission at its 89th plenary session (Venice, 16-17 December 2011). It reads, in so far as relevant, as follows:", "“II. THE FOLLOWING COMPLETES THE PRINCIPLES STATED IN THE CODE", "1. Universal suffrage", "2. Universal suffrage is a fundamental principle of the European Electoral Heritage. People with disabilities may not be discriminated against in this regard, in conformity with Article 29 of the Convention of the United Nations on the Rights of Persons with Disabilities and the [case-law] of the European Court of Human Rights.", "3. Voting procedures and facilities should be accessible to people with disabilities so that they are able to exercise their democratic rights, and allow, where necessary, the provision of assistance in voting, with respect to the principle that voting must be individual (the Code, item I.4.b).", "4. The application of Universal Design principles and direct and/or indirect participation of the user in all design stages are effective means for improving the accessibility of polling stations and election procedures to cast one’s vote and for getting access to information on elections ...", "...", "4. Secret suffrage", "7. The right of people with disabilities to vote by secret ballot should be protected, inter alia, by “guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing them to use assistance technologies and/or to be assisted in voting by a person of their own choice” in conditions which ensure that the chosen person does not exercise undue influence.”", "59. In Resolution 2155 (2017), adopted on 10 March 2017 and entitled “The political rights of persons with disabilities: a democratic issue”, the Parliamentary Assembly of the Council of Europe called on member States to, inter alia :", "4.4. with regard to accessibility of polling stations, ...:", "7.4.1. ensure physical accessibility of public buildings, including polling stations, ... and guarantee that at least one polling station in every election district provides full accessibility;", "...", "7.4.3. provide ballot papers in accessible formats and tactile voting devices for blind people in at least one polling station in every election district;", "...", "7.5. with regard to assistance with voting and to remote and alternative voting:", "7.5.1. provide, when requested, assistance with voting via supported decision making, and respect for the voter’s free will;", "...", "7.5.4. set up mobile voting units and propose, when possible, electronic voting for cases where persons with disabilities are not in a position to go to a polling station; ...”", "European union – EUropean Economic and Social Committee", "60. Relevant comparative information concerning access to voting in the EU member States may be found in the information report entitled “Real rights of people with disabilities to vote in European Parliament elections” issued in March 2019 by the Section for Employment, Social Affairs and Citizenship of the European Economic and Social Committee (EESC). According to the report, eleven EU countries apply the general principle that all polling stations have to be adapted to suit the needs of persons with disabilities. However, the report finds that this accessibility is understood rather narrowly in practice – only as a lack of physical barriers to wheelchair users arriving at a polling station accompanied by other people who might, if necessary, help to push a wheelchair (6.2.3). Six EU countries have no rules on adapting polling stations to the needs of people with disabilities (ibid.) and no EU member State has implemented comprehensive solutions (6.2.11). Some of the most frequent difficulties include: “excessively small voting booths, major difficulties in using them by wheelchair users ..., [a] lack of choice [regarding] how to fill out the ballot paper (sitting or standing), overly small tables to fill in ballot papers ..., [and the] location of the slot in the ballot box in a way that [prevents] some voters with disabilities from independently inserting their ballot” (6.2.13). As regards voting with the assistance of a freely chosen person, the report notes that in most EU member States, such assistance is permitted, but that in only some of them can a member of an electoral commission be designated to undertake the role of an assistant. (6.2.6).", "61. As regards voting at a polling station, the report makes the following comments (6.2.18):", "“a) Despite the existing rules, the vast majority of polling stations in the EU are not fully or generally adapted to the needs of persons with various types of disabilities and this cannot be corrected quickly. Therefore, the best remedy to this situation for the time being is to allow voters with disabilities to change polling stations, if the polling station has been designated in connection with the place of residence. The administrative procedure leading to such a change should be simple and quick.", "b) All voters with disabilities should be free to choose the person who will assist them during elections at the polling station. The additional conditions for such assistants in many countries do not seem warranted.", "...", "d) It is of the utmost importance to draw up very detailed principles (in the form of legal rules or instructions for local authorities and electoral commissions) specifying the electoral commissions’ facilities and how their work is organised. Those rules should specify, among other things, the structure of areas in which people may move around unhindered; the size, location, and facilities of voting booths; the accessibility of the ballot box; as well as parking arrangements and access to the polling station.”", "62. The report considers voting by mobile ballot box to be an effective way to enable persons with disabilities to take part in voting and notes that that option could be combined with postal voting (6.6.8). Moreover, until the accessibility of polling stations is improved, it suggests as a provisional solution the taking of ballot papers and the placing of a small additional ballot box in front of the polling station so that voters may cast their vote there (ibid.). The report also notes the fact that electronic voting using stationary devices in polling stations does not render it substantially easier for people with disabilities to participate in elections. In order to change that, it declares it necessary to put in place technical arrangements allowing people with various disabilities to operate such devices independently and to ensure genuine privacy and secrecy for voters (6.8.4).", "Organisation for Security and Co-operation in Europe, Office for Democratic Institutions and Human Rights (OSCE/ODIHR)", "63. ODIHR found in its Election Assessment Mission Final Report on 2011 early parliamentary elections in Slovenia, published on 7 February 2012, that although Slovenian law provided for measures to enable the participation of voters with disabilities, access to polling stations remained an issue. As regards the secrecy of the voting procedure, ODIHR noted that votes cast using voting machines had a different format from other ballots and were often low in number, thereby potentially compromising the secrecy of the vote. In its Election Assessment Mission Final Report on early parliamentary elections held in 2018 in Slovenia, which was published on 12 September 2018, ODIHR noted that almost full compliance had been achieved in rendering polling stations physically accessible for voters with disabilities. It also suggested that e-voting could provide a viable alternative method of allowing voters with disabilities to exercise their suffrage rights without assistance.", "THE LAW", "JOINDER OF THE APPLICATIONS", "64. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.", "locus standi with respect to application no. 34591/19", "65. The Court notes that the first applicant died soon after lodging the application with the Court and that his daughters, Nataša Toplak and Renata Toplak, expressed the wish to continue the proceedings before the Court in his stead. They submitted a copy of the relevant inheritance decision, which shows that they are the sole heirs of the first applicant. The Court, having regard to its relevant case-law (see, for instance, Jama v. Slovenia, no. 48163/08, § 28, 19 July 2012), accepts that the aforementioned heirs may pursue the application initially lodged by the first applicant. Any submissions made by them will be referred to as “the first applicant’s submissions”.", "THE government’S PRELIMINARY OBJECTIONs", "66. The Government pointed out that the applicants had not raised the issue of the non-availability of voting machines in the applications that they had lodged with the Court and had not submitted with their applications any documents related to the constitutional review concerning, inter alia, the use of voting machines (see paragraph 31 above).", "67. The Government furthermore argued that the applicants had in their remedies cited the need for polling stations, voting booths, tables and ballot boxes to be physically accessible, but had provided no or insufficient information regarding their actual participation in the 2015 Referendum. In his constitutional appeal, the first applicant had not detailed the circumstances of his participation in the 2015 Referendum. The second applicant had alleged in his constitutional appeal that the polling station had been inaccessible, even though he had previously acknowledged in his appeal to the Supreme Court that he had, in fact, voted.", "68. The Government also asserted that the applicants had failed to exhaust the available domestic remedies because they had not brought an action under section 4 of the Administrative Disputes Act seeking a finding of a violation of human rights (see paragraph 48 above). Moreover, they had not sought remedies under the Elections Act and the Referendums Act (see paragraphs 46-47 above) and had not availed themselves of the remedy available under section 39 of the Protection against Discrimination Act (see paragraph 52 above) with respect to the alleged discrimination that they had suffered during the 2019 EP Elections.", "69. The Government also alleged that the applicants had failed to comply with the six-month time-limit with respect to their complaints concerning the 2015 Referendum. While the applicants had lodged their application within six months of the dismissal of their constitutional complaints, the actions that they had brought in the Administrative Court had been premature (they had brought them before, instead of after, the referendum).", "70. The applicants argued that they had used all the available remedies, including lodging a constitutional complaint and lodging a petition for constitutional review. They contested the Government’s argument that the present case did not concern voting machines and pointed out that they had argued before the domestic authorities that polling stations should be fully accessible (which would necessitate the facilitating of access to all elements of the voting process). In the proceedings before the Constitutional Court they had relied on the CRPD Committee’s decision of 2018 (see paragraph 57 above), which concerned also voting machines.", "71. The Court observes that in their respective application forms the applicants did not explicitly raise the issue of the availability of voting machines. However, the alleged lack of accessibility comprised various aspects, and there is no reason why the lack of voting machines should not be considered among them. The Court notes in this regard that with respect to the 2019 EP Elections the applicants alleged, inter alia, that “no accessible voting methods or equipment [had been] available” (see paragraph 29 above). They referred to the standards of accessibility set out in the relevant international material, with which in their view the Slovenian authorities should have been familiar. The Court also finds it important that one set of proceedings before the Constitutional Court, in which both applicants participated, concerned precisely this issue. It is true that the applicants did not submit information concerning those proceedings in their applications, but they were bound up with the first applicant’s constitutional complaint (see paragraphs 15 and 31 above) and at the time at which the applications were lodged the constitutional review was still pending. The constitutional review proceedings ended with the Constitutional Court’s decision (see paragraphs 33 to 36 above), which was issued after the applications had been lodged with the Court. The Court lastly notes that the Government extensively commented on whether voting machines were required, especially after the delivery of the aforementioned Constitutional Court’s decision. Hence, the first preliminary objection is dismissed (see paragraph 66 above).", "72. As regards the precise circumstances concerning the applicants’ participation in the 2015 Referendum and in the 2019 EP Elections, the Court cannot lose sight, firstly, of the fact that their original complaints concerned their alleged inability to vote on an equal basis with others over a long period of time in several elections and referendums, but that the Government were given notice only of the complaints concerning the 2015 Referendum and the EP 2019 Elections (the remaining complaints having been rejected as inadmissible at an earlier stage of the proceedings). Secondly, as regards the facts submitted in the domestic proceedings, the Court observes that the applicants brought actions prior to the 2015 Referendum and that their arguments were largely based on their previous experiences. Having said that, the uncertainties regarding certain factual issues will be addressed when the applicants’ complaints are examined on the merits. This preliminary objection should thus also be dismissed.", "73. As regards the Government’s objection concerning compliance with the six-month time-limit (see paragraphs 69 above), the Court notes that the applicants lodged their applications with the Court within six months of the date on which they had received the decisions of the Constitutional Court dismissing their constitutional complaints (see paragraphs 16 and 24 above). The Constitutional Court decisions relate to the proceedings that the applicants had initially instituted before the Administrative Court with a view to seeking adjustments of the polling stations with respect to the upcoming 2015 Referendum, as well as any future elections and referendums (see paragraphs 11 and 19 above). Even though these proceedings proved to be incapable of offering any redress, in view of the Supreme Court’s position (see paragraphs 14 and 22 above), it has not been demonstrated by the Government that they could be regarded as constituting inappropriate or misconceived avenues which could be considered as bound to fail from the outset and hence should not be taken into account for the calculation of the six-month period (see, for example, Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 138, 19 December 2017; also contrast Musayeva and Others v. Russia (dec.), no. 74239/01, 1 June 2006, and Rezgui v. France (dec.), no. 49859/99, ECHR 2000-XI). In this respect, the Court notes that the Constitutional Court did not dismiss the applicants’ constitutional complaints against the Supreme Court and Administrative Court decisions, in which they had complained about essentially the same issues as those being examined by the Court (see paragraphs 15 and 23 above), on the grounds that the available remedies had not been properly exhausted (see paragraphs 15 and 23 above). It thus rejects this objection of the Government.", "74. With regard to the Government’s objections concerning the exhaustion of certain domestic remedies (see paragraphs 68 above) the Court notes that they are closely linked and should thus be joined to the examination of the merits of the complaint under Article 13, taken together with other cited provisions.", "Characterisation of the complaints and order of examination", "75. The Court notes that the applicants complained under Article 3 of Protocol No. 1 and under Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1. They also complained under Article 1 of Protocol No. 12. Furthermore, they cited Article 13 of the Convention. Being the master of characterisation to be given in law to the facts of the case (see Radomilja and others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018), the Court considers that in so far as they relate to the 2015 Referendum the applicants’ complaints should be examined from the standpoint of Article 1 of Protocol No. 12 – both alone and in conjunction with Article 13 of the Convention. In respect of the 2019 EP Elections, the complaints should be examined under Article 14 of the Convention, in conjunction with Article 3 of Protocol No. 1, and from the standpoint of these two provisions taken together with Article 13 of the Convention.", "76. The Court furthermore notes that when considering whether there has been a violation of the right to an effective remedy in respect of a violation of a substantive right guaranteed by the Convention, the Court’s normal practice is to consider first whether there has been a violation of the substantive right relied upon and then to consider whether there has been a violation of Article 13. However, having considered the applicants’ submissions and in view of the Court’s decision to join the Government’s objection regarding the exhaustion of domestic remedies to the merits of the complaint under Article 13 (see paragraph 74 above), the Court considers that it should examine first whether there has been a violation of Article 13, read in conjunction with the other provisions relied on by the applicants.", "ALLEGED VIOLATION OF ARTICLE 13 of the Convention, taken together with Article 1 of protocol no. 12 to the convention (as regards the 2015 referendum) and with Article 14 of THE CONVENTION, in conjuction with article 3 of Protocol no. 1 to the convention (as regards the 2019 EP elections)", "77. The applicants complained of the lack of effective judicial means by which they could have requested an accessible polling station in advance. They furthermore complained of the lack of any effective remedy by which to claim compensation for being discriminated against in exercising their right to vote in elections or referendums. The relevant provisions (see paragraph 75 above) read as follows:", "Article 13 (right to an effective remedy)", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by people acting in an official capacity.”", "Article 14 (prohibition of discrimination)", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 3 of Protocol No. 1 (right to free elections)", "“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”", "Article 1 of Protocol No. 12 (General prohibition of discrimination)", "“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.", "2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”", "Admissibility", "78. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured. The effect of that provision is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI).", "79. Since Article 13 has no independent existence but merely complements the other substantive clauses of the Convention and its Protocols (see Zavoloka v. Latvia, no. 58447/00, § 35, 7 July 2009, and DEBÚT Zrt. and Others v. Hungary (dec.), no. 24851/10, 20 November 2012), the Court will first proceed to ascertain whether the other provisions cited together with Article 13 are applicable in the present case.", "80. The Court notes at the outset that both applicants complained that they had been hindered in the enjoyment of their rights because of their disability, which falls under “any other status” as a prohibited grounds for discrimination (see Çam v. Turkey, no. 51500/08, § 55, 23 February 2016, and Guberina v. Croatia, no. 23682/13, § 79, 22 March 2016). It furthermore notes that as regards the 2019 EP Elections it has not been disputed that Article 3 of Protocol No. 1 applied, and the Court sees no reason to hold otherwise (see, for instance, Matthews v. the United Kingdom [GC], no. 24833/94, §§ 45-54, ECHR 1999 ‑ I).", "81. As regards the 2015 Referendum the Court notes that while Article 14 of the Convention prohibits discrimination in the enjoyment of “the rights and freedoms set forth in [the] Convention”, Article 1 of Protocol No. 12 extends the scope of protection to “any right set forth by law”. It thus introduces a general prohibition of discrimination (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 53, ECHR 2009). It has not been disputed in the present case that the applicants had a right to vote in referendums (see also paragraph 37 above), including the one held in 2015. Having regard to the fact that the disability falls within “any other status” as a prohibited ground of discrimination (see paragraph 80 above), Article 1 of Protocol No. 12 is applicable to the complaints concerning the applicants’ participation in the 2015 Referendum.", "82. The Court also finds that the applicants’ complaints under the substantive provisions are “arguable” for the purposes of Article 13. It therefore concludes that, not being inadmissible on any other grounds listed in Article 35 of the Convention, this part of the applications must be declared admissible.", "MeritsThe submissions by the parties", "The submissions by the parties", "The submissions by the parties", "83. The applicants submitted that they, together with other voters with disabilities, had attempted to avail themselves of all the available (election and post-election) remedies repeatedly and over a long period of time but had always been unsuccessful. They pointed out that appeals under the electoral laws (see paragraphs 46-47 above) could not be effective as one person’s vote could not affect the overall result. They had not availed themselves of any of the available domestic remedies following the 2019 EP Elections as it had by then been clear that none of them would be effective. The applicants furthermore argued that they should have had at their disposal a remedy allowing them to request an accessible polling station ahead of the elections and the referendums. The applicants criticised the Constitutional Court’s view that complaints relating to the voting process should be rejected once the elections in question were over (see paragraph 45 above). They also argued that the Supreme Court’s position in respect of their cases constituted a change in the case-law that they could not have foreseen. With respect to the Protection against Discrimination Act, the applicants argued that that Act did not constitute an effective way to ensure that polling stations were accessible.", "84. The Government acknowledged that the applicants could not have claimed compensation with respect to the alleged violations that had occurred during the 2015 Referendum because neither the Administrative Disputes Act nor the Obligations Code provided for the possibility of obtaining monetary redress. The applicants could have obtained a finding of a violation, which, in the Government’s view, would have sufficed. They referred to cases in which the Court had ruled that the finding of a violation had been sufficient, such as Kulinski and Sabev v. Bulgaria, no. 63849/09, 21 July 2016, and Anchugov and Gladkov v. Russia, nos. 11157/04 and 15162/05, 4 July 2013. After the 2019 EP Elections, the applicants could have brought an action under section 4 of the Administrative Disputes Act and sought a remedy under section 39 of the Protection against Discrimination Act, which would have allowed them to seek monetary compensation for the alleged discrimination.", "85. The Government also submitted that there were no preventive remedies as regards the accessibility of polling stations because the domestic authorities were in any event bound by law to make polling stations accessible to people with disabilities.", "86. The office of the Advocate for the Principle of Equality (see paragraph 52 above), acting as a third party in the proceedings, argued that as regards the claim under section 39 of the Protection against Discrimination Act (see paragraph 52 above), no case-law had been formulated thus far on the basis of that provision and that in point of fact the first and only legal action, which had been brought by the Advocate in 2019, was still pending before the domestic court. The third party considered this remedy to present a degree of uncertainty for the plaintiffs.", "The Court’s assessment", "87. As the Court has stated on many occasions, the Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under Article 13 of the Convention. The scope of their obligations under Article 13 also varies, depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law (see T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 107, ECHR 2001 ‑ V (extracts)).", "(a) The remedies with respect to the 2015 Referendum", "88. According to the Supreme Court (see paragraphs 14 and 22 above) and the Government (see paragraph 68 above), the applicants had at their disposal a remedy under the Referendums Act. However, it is clear from the relevant domestic law and practice that this remedy could have had an effect only if the grounds for complaint had potentially affected the 2015 Referendum’s outcome (see paragraphs 46-47 above). It was not meant to be and was not capable of addressing the kind of individual complaints raised by the applicants.", "89. The Government furthermore argued that the applicants had had at their disposal an effective remedy in the form of bringing an action under section 4 of the Administrative Disputes Act (see paragraphs 48-50 above), but had failed to use it properly – that is to say after the 2015 Referendum (see paragraphs 68, 69 and 84 above). The Court reiterates in this regard that remedies must be effective in the sense that they could have prevented the alleged violations occurring or continuing or could have afforded the applicants appropriate redress for any violation that had already occurred (see, for instance, Kudła, cited above, § 158, and Jaremowicz v. Poland, no. 24023/03, § 70, 5 January 2010 ). The applicants clearly intended to use the remedies with the aim of ensuring the accessibility of their local polling station in advance. The Government, however, submitted that there were no preventive remedies as regards the accessibility of polling stations (see paragraph 85 above) and that the applicants should instead have sought the finding of a violation of their human rights under section 4 of the Administrative Disputes Act (see paragraph 68 above); this seems to have been suggested also by the Supreme Court (see paragraph 14 above). It has been acknowledged by the Government that neither the action under section 4 of the Administrative Disputes Act nor any other remedy would have enabled the applicants to obtain any form of compensation for the violation which had allegedly occurred (see paragraphs 48 and 84 above).", "90. The Court takes note that an action under section 4 of the Administrative Disputes Act was, pursuant to the Supreme Court’s view (see paragraphs 14 and 22 above), not intended to prevent a possible violation of the applicants’ rights. Taking into account the aforementioned absence of any legal remedy with a preventive effect, the Court further considers that an action of which the sole purpose was to obtain a finding of a violation without the possibility to seek redress would constitute an inadequate remedy. The fact that the Court in some cases concerning the right to vote has awarded no monetary compensation (see paragraph 84 above) cannot alter this finding. The Court would emphasise that in the present case it is not confronted with a domestic decision by which no compensation was awarded in view of the circumstances of the case, but with a domestic court that lacks any power to award appropriate redress.", "91. Therefore, as regards the 2015 Referendum, the applicants did not have at their disposal an effective remedy; there has thus been a violation of Article 13, taken together with Article 1 of Protocol No. 12 to the Convention.", "(b) The remedies with respect to the 2019 EP Elections", "92. As regards an action brought under section 4 of the Administrative Disputes Act, the Court has already found that it would not have been capable of providing appropriate redress, as required by Article 13 of the Convention (see paragraphs 89 and 90 above). As to a remedy that might be sought under the Elections Act, it finds that, like the remedy that might be sought under the Referendums Act (see paragraph 88 above), such a remedy was neither meant to address nor was capable of addressing the complaints raised by the applicants – that is to say complaints that did not appear to be capable of affecting the outcome of the elections (see paragraphs 46-47 above). With respect to the remaining possible remedies, the Court finds that it is necessary to distinguish between the two applicants.", "(i) The first applicant", "93. The first applicant did not vote in the 2019 EP Elections because he could have done so only by using a voting machine. Such machines were, pursuant to the 2017 Amendment, no longer available (see paragraphs 38 and 42 above). The issue at stake was therefore not one of any reasonable accommodation that could have been provided at the polling station but one of an instance of alleged discrimination under the relevant legislation. The Court notes that this issue was considered during the proceedings for the review of constitutionality before the Constitutional Court (see paragraph 37 above), in which the first applicant took part (see paragraphs 16 and 31 above). The Constitutional Court, having regard to the arguments of those involved, as well as the relevant international material, thoroughly examined whether the removal of the voting machines had been in compliance with the fundamental rights of voters with disabilities (see paragraphs 33-36 above). It is true that it did not reach a conclusion favourable to the first applicant, but this fact alone does not mean that the remedy was ineffective (see, mutatis mutandis, Swedish Engine Drivers’ Union v. Sweden, 6 February 1976, § 50, Series A no. 20 ). There has therefore been no violation of Article 13 of the Convention with respect to the first applicant’s complaint relating to the 2019 EP Elections.", "(ii) The second applicant", "94. The second applicant voted but complained that he had been unable to do so on an equal basis with others owing to practical obstacles that he had encountered at his polling station and the failure to reasonably accommodate his needs. The Court observes that it was open to the second applicant to express any concerns that he might have had regarding the accommodation of his needs to the relevant electoral bodies (see paragraphs 13 and 20 above), which ahead of the 2015 Referendum had constructively responded to his requests (see paragraph 121 below). Had he considered that he had suffered discrimination in exercising his right to vote he could, under section 39 of the Protection Against Discrimination Act (which came into force in 2016), have lodged a claim for compensation. Although no case ‑ law may be so far established in this regard (see paragraph 86 above), the provisions of section 39 have been specifically designed to address discrimination and do not raise any unambiguity that would – prima facie – call the effectiveness of this remedy into question (see, for instance, Charzyński v. Poland (dec.), no. 15212/03, § 41, 1 March 2005 ).", "95. It is true that the second applicant could not have sought – by way of an action brought under section 4 of the Administrative Act or by way of the remedies provided under the Referendums Act – that particular adjustments be made at his local polling station (see paragraphs 88-90 and 92 above). However, under Article 13 of the Convention, the national authorities enjoy a certain discretion as to the manner in which they conform to their Convention obligations (see paragraph 87 above), and the Court finds that, given the circumstances of the case, a remedy capable of affording appropriate redress in the form of compensation would satisfy the criteria of Article 13.", "96. Accordingly, the second applicant had at his disposal an effective remedy, so there has been no violation of Article 13 on this account.", "alleged violation of Article 1 of protocol no. 12 to the convention (as regards the 2015 referendum) and the ALLEGED VIOLATION OF ARTICLE 14 of the convention, in conjuction with article 3 of Protocol no. 1 to THE CONVENTION (as regards the 2019 EP elections)", "97. The applicants, whose mobility was impaired owing to disability and who used wheelchairs, complained of a violation of Article 1 of Protocol No. 12 with respect to their alleged lack of access to the voting procedure during the 2015 Referendum. They furthermore complained of a violation of Article 14, taken together with Article 3 of Protocol No. 1, with respect to the 2019 EP Elections. Those provisions have already been cited above (see paragraph 77 above).", "Admissibility", "98. The Court has found that the second applicant had an effective remedy at his disposal as regards the 2019 EP Elections. It thus upholds the Government’s preliminary objection concerning the non-exhaustion of domestic remedies in this respect (see paragraph 96 above). This part of the second applicant’s application is therefore inadmissible under Article 35 § 1 and 4 of the Convention.", "99. As regards the remaining complaints, the Court notes that it has found that the applicants did not have at their disposal an effective remedy with respect to their complaint concerning the 2015 Referendum (see paragraph 91 above). The Government’s preliminary objection concerning the non-exhaustion of domestic remedies in this respect should therefore be dismissed. As regards the first applicant’s complaint in relation to the 2019 EP Election, the Government argued that he should have used the compensatory remedy under the Prohibition of Discrimination Act (see paragraphs 52 and 68 above). The Court recalls that, where several remedies are available, the applicant is not required to pursue more than one and it is normally that individual’s choice as to which (see, mutatis mutandis, Karakó v. Hungary, no. 39311/05, § 14, 28 April 2009 ). It notes that the first applicant had availed himself of the proceedings for the review of constitutionality before the Constitutional Court (see paragraph 93 above). The Government did not provide any relevant arguments to the effect that he would have been required to exhaust an additional legal avenue in the form of a compensatory remedy (see paragraph 68 above). This objection of the Government should therefore likewise be dismissed.", "100. The Court furthermore notes that the applicants’ complaints concerning the 2015 Referendum and the first applicant’s complaint concerning the 2019 EP Elections are neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.", "MeritsThe submissions by the parties", "The submissions by the parties", "The submissions by the parties", "(a) The applicants", "101. The applicants argued that “accessible” polling stations meant not only stations that had an accessible entrance but also an accessible path to the voting room, access to the voting booth in which they could vote privately, an accessible ballot paper and an accessible ballot box. They had requested in the proceedings initiated before the 2015 Referendum that their voting booths and tables be wheelchair-accessible, but that request had been ignored. The second applicant disputed the Government’s assertion that his local polling station had been accessible and pointed out that the visit made by the district election commission in 2015 could not have ensured the accessibility of the interior of his polling station, as it had taken place three days before the referendum, and the voting equipment had not been there at the time of the visit.", "102. The first applicant submitted that since 2018 he would need to use electronic equipment designated specifically for people with disabilities in order to vote by secret ballot and without discrimination. Such equipment had been available in Slovenia for many years and enabled blind people or persons who could not use their hands to vote independently. Its use had been cancelled altogether by the 2017 Amendment. The applicants hoped that the Constitutional Court would overturn the legislature’s decision in that regard, because such equipment had been – in their view – declared necessary by the CRPD Committee (see paragraph 57 above).", "103. The applicants seemed to argue that the only way to secure their right to vote by secret ballot and without discrimination was by means of a fully accessible polling station, at which assistive technology was also available. All other – alternative – solutions were unable to fully achieve this objective.", "(b) The Government", "104. As regards the 2015 Referendum the Government argued that both applicants had been provided with an accessible polling station. The applicants had also been allowed to benefit from the assistance of a person of their own choice during the voting process. The Government also explained that the records of the election committee were not available as they had been destroyed during floods in 2018. They pointed out that only after the Government had been given notice of the application had the first applicant explained that he had actually voted during the 2015 Referendum. As regards his description of the events, the Government pointed out that the first applicant had himself acknowledged that he had been accompanied by several people. That could explain the alleged presence of many people inside the polling station during the time that he had been casting his vote. As regards the second applicant, the Government stressed that he had raised only the issue of the angle of inclination of the ramp.", "105. As regards the 2019 EP Elections, the Government argued that the first applicant could have availed himself of the assistance of another person in order to mark and deposit the ballot paper, could have voted by post, or could have voted at home, in the presence of the election committee.", "106. As regards the third parties’ submissions, the Government pointed out that the Advocate himself acknowledged in his submissions that he had not examined any case concerning access to polling stations and had so far made no recommendations in this regard. Relying on the information supplied by Equinet (see paragraph 109 below), the Government pointed out that that fact, together with the information contained in the EESC’s information report (see paragraphs 60-62 above), indicated that the applicants in the present case had in fact been in a better position than voters with disabilities in many other European countries. With respect to the submissions of the HPOD and the CDLP (see paragraph 107 below) the Government pointed out that the applicants’ local polling stations had been accessible and that the election commissions had responded to the applicants’ requests during the 2015 Referendum.", "(c) Third parties", "(i) The Harvard Law School Project on Disability (HPOD) and the Centre for Disability Law and Policy (the CDLP )", "107. The HPOD and the CDLP invited the Court to hold that accessibility, including assistive technology and voting assistance, was a necessary element of the right to vote and the right to be free from discrimination. They relied on the CRPD and the CRPD Committee’s comments and invited the Court to differentiate between the denial of reasonable “accommodation” and the denial of accessibility. They outlined the following obligations, which in their opinion arose from the CRPD: (i) the unconditional obligation to ensure accessible voting facilities and procedures to people with mobility impairment without such individuals having to request such facilities and procedures in advance, and irrespective of the costs; (ii) the obligation to ensure that assistance provided to voters with disabilities did not jeopardise the secrecy of the voting procedure; (iii) the additional positive obligation to provide reasonable accommodation to individual voters in relation to their specific needs and circumstances; (iv) the obligation to respect a voter’s choice of voting assistant; (v) the obligation to actually prove (not merely allege) that a proposed accommodation was disproportionately burdensome.", "(ii) Advocate of the Principle of Equality", "108. The office of the Advocate for the Principle of Equality (see paragraph 52 above) referred to the CRPD’s accessibility standards and invited the Court to consider whether the concept of “reasonable accommodation” was pertinent to the present cases. It explained that in Slovenia the number of polling stations was traditionally very high and that citizens could in practice cast their votes very close to their homes. For each election or referendum, polling stations were set up on an ad hoc basis, although in practice, often the same premises (such as schools, inns or fire brigade stations) were used. It furthermore explained that although the accessibility of polling stations had improved owing to changes in the relevant legislation, it remained unclear to election commissions what “accessibility” meant in technical terms. As regards voting from home, it pointed to the lack of any specific regulation of this voting method.", "(iii) The European Network of Equality Bodies (Equinet)", "109. Equinet submitted that the trends had been emerging from the international and regional instruments in favour of the right of people with disabilities to have access to fully and autonomously accessible polling stations. It noted that in practice access for people with disabilities to the electoral process remained inadequate, resulting in a significantly low participation in the electoral process of people with disabilities. Equinet stated that it had gathered its information from the national equality bodies of nineteen Council of Europe member States. In its opinion, the data showed a general move towards a formal recognition of the right of people with disabilities to vote but also an overall lack of supervision as to how measures aimed at ensuring accessibility were executed in practice.", "The Court’s assessment", "(a) Relevant principles", "110. The relevant principles concerning the right to vote have been set out in Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, §§ 56-62, ECHR 2005 ‑ IX.", "111. As regards Article 14 of the Convention, the Court reiterates that “discrimination” means treating differently, without an objective and reasonable justification, people in relevantly similar situations, and that a difference in treatment is devoid of any “objective and reasonable justification” where it does not pursue a “legitimate aim” or there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see Enver Şahin v. Turkey, no. 23065/12, § 54, 30 January 2018 ). However, the Court considers that this is not the only facet of the prohibition of discrimination under Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently people whose situations are significantly different (see J.D. and A. v. the United Kingdom, nos. 32949/17 and 34614/17, § 84, 24 October 2019 with further references, notably Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000 ‑ IV). In this context, relevance is measured in relation to what is at stake, whereas a certain threshold is required in order for the Court to find that the difference in circumstances is significant. For this threshold to be reached, a measure must produce a particularly prejudicial impact on certain persons as a result of a protected ground, attaching to their situation and in light of the ground of discrimination invoked (see Ádám and Others v. Romania, nos. 81114/17 and 5 others, § 87, 13 October 2020, and Napotnik v. Romania, no. 33139/13, § 73, 20 October 2020). As the effective enjoyment of many of the Convention rights by people with disabilities may require the adoption of various positive measures by the relevant State authorities (see Mółka v. Poland (dec.), no. 56550/00, ECHR 2006 ‑ IV ), the Court considers that the threshold of significance referred to above must likewise be attained when an applicant alleges existence of discrimination due to lack of positive measures by the respondent State.", "112. The Court also notes that the Convention should, as far as possible, be interpreted in harmony with other rules of international law, of which it forms a part (see Enver Şahin, cited above, § 53). Therefore, the provisions regarding the rights of people with disabilities set out in the CRPD should, along with other relevant material (see paragraphs 54 to 62 above), be taken into consideration. The Court observes in this connection that in its General Comment No. 2 the CRPD Committee noted that the denial of access of persons with disabilities to, inter alia, facilities and services open to the public should be viewed within the context of discrimination (see paragraph 55 above).", "113. It is furthermore reiterated that the States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify different treatment (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 76, ECHR 2013). However, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved (see Enver Şahin, cited above, § 55, and Glor v. Switzerland, no. 13444/04, § 75, ECHR 2009).", "114. In previous cases concerning the rights of people with disabilities, the Court, referring to the CRPD, has found that Article 14 of the Convention has to be read in the light of the requirements of those texts regarding reasonable accommodation – understood as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case” – which people with disabilities are entitled to expect in order to ensure “the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms” (Article 2 of the CRPD). Such reasonable accommodation helps to correct factual inequalities which are unjustified and which therefore amount to discrimination (see Çam, cited above, § 65 ). The Court finds that these considerations apply equally to the participation of people with disabilities in political life. It notes in this regard that Article 29 of the CRPD explicitly requires the States Parties to guarantee to people with disabilities the opportunity to enjoy political rights on an equal basis with others and to undertake to ensure, among other things, accessible voting procedures (see paragraph 54 above).", "115. Lastly, the Court notes that, notwithstanding the difference in scope between Article 14 and Article 1 of Protocol No. 12, the meaning of the term “discrimination” in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (see Pilav v. Bosnia and Herzegovina, no. 41939/07, § 40, 9 June 2016, and Sejdić and Finci, cited above, §§ 55 ‑ 56). Therefore, in principle, the same standards developed by the Court in its case ‑ law concerning the protection afforded by Article 14 are applicable to cases brought under Article 1 of Protocol No. 12 (see Napotnik, cited above, § 70, and Ádám and Others, cited above, § 83 ).", "(b) Assessment of the present case", "116. In the light of the above-mentioned principles the Court is called on to assess whether the Slovenian authorities complied with their obligations under Article 1 of Protocol No. 12 (as regards the 2015 Referendum) and Article 14 read in conjunction with Article 3 of Protocol No. 1 (as regards the possibility for the first applicant to vote in 2019 EP Elections).", "117. The Court notes that Article 3 of Protocol No. 1 stipulates that there must be free expression of opinion in the choice of the legislature and that secrecy must be observed in respect of the voting procedure. Under the relevant domestic legislation these guarantees also apply to voting in public referendums (see paragraph 39 above). The Court furthermore notes that it has not been argued that the applicable domestic legislation contained provisions divesting people with mobility impairments of the aforementioned rights or restricting their enjoyment of those rights in any way. The question is therefore not one of direct discrimination by way of unjustified differentiation but rather of the compliance of the national authorities with their positive obligation to take appropriate measures to enable the applicants, whose mobility was impaired due to disability, to exercise their right to vote on an equal basis with others.", "(i) The 2015 Referendum", "118. The Court finds it established that on the day of the 2015 Referendum the entrances to the applicants’ respective polling stations were equipped with ramps, which the applicants used in order to enter. However, the applicants argued that the appropriate adaptations had not been made inside the polling stations, resulting in them not being able to vote in secrecy and on an equal basis with others.", "119. The Court firstly observes that a general and complete adaptation of polling stations in order to fully accommodate wheelchair users would no doubt facilitate their participation in the voting process. However, it reiterates that the States enjoy a margin of appreciation in assessing the needs of people with disabilities in respect of elections and the means of providing them with adequate access to polling stations within the context of the allocation of limited State resources (see Mółka, cited above); that margin of appreciation no doubt applies also with respect to referendums. The national authorities are in a better position to carry out such an assessment than an international court (ibid.). The Court furthermore observes that the applicants were able to vote at the polling stations in proximity of their residence, in accordance with their wishes (see paragraphs 10 and 17 above), as opposed to having to go to specially designated polling stations. While adaptations to the voting facilities (such as tables, voting booth and ballot box) were not made in advance, assistance could be provided to the applicants on the spot by means of a reasonable accommodation of their needs (see, for instance, the CRPD Committee’s General Comment No. 2, cited in paragraph 55 above, and paragraphs 13 and 20 above).", "120. In this regard the Court finds, on the basis of the parties’ submissions, that during the 2015 Referendum both applicants were able to mark their ballot paper by themselves. The first applicant alleged that he had had to cast his vote in the middle of the room, with several people around him, but failed to explain how this had impacted the secrecy of the voting procedure and whether he had made any request or complaint in this regard to electoral officers. In the proceedings before the Court he made this allegation only after the Government had been given notice of the application, and supported it with the photos that had been published on Facebook by the first applicant’s nephew, Mr Jurij Toplak, on the day of the referendum (see paragraph 26 above), with accompanying text that read: “My uncle, Franc Toplak, voted in an accessible polling station today. One polling station adjusted, 3,000 to go”. Those photos had clearly been posted in order to show that the first applicant had been able to vote at an accessible polling station (see paragraph 25 above). The second applicant submitted that he had needed the help of a passer-by in order to use the ramp at the entrance to his polling station (see paragraph 26 above). As regards his actual voting, he provided no specific information during the proceedings before the Court. In the domestic proceedings he indicated that he had been able to mark and deposit his ballot paper. His grievance related only to the inclination of the ramp (see paragraph 21 above).", "121. The Court understands that since voting in public referendums is organised ad hoc in buildings that otherwise serve other purposes it might be particularly difficult to ensure full accessibility in respect of the voting process for people with different types of disability in advance – especially if the State aims to provide a high number of polling stations (as seems to be the case in Slovenia – see paragraph 108 above). Since the improvement of accessibility in the built environment may take time (see, for instance, the CRPD Committee’s General Comment No. 6, at paragraph 56 above), it is essential that in the meantime the domestic authorities react with the requisite diligence to ensure that people with disabilities can vote freely and by secret ballot. In the present case, the National Commission responded promptly and constructively to the applicants’ request that their respective polling stations be rendered accessible (see paragraphs 10, 12, 17 and 18 above). At the request of the first applicant a ramp was installed at the polling station for his electoral area. At the request of the second applicant, a visit to the building (school) that would serve as the polling station for his electoral area was arranged a few days before the day of the 2015 Referendum in order to ensure that he would be able to enter the building and the polling room (ibid.). Even if the applicants did encounter certain problems when participating in the 2015 Referendum, those problems do not appear to have produced a particularly prejudicial impact on them and been such as to have reached the threshold of discrimination (see Napotnik, cited above, § 73, and Ádám and Others, cited above, § 87) or to indicate indifference to their needs on the part of the respondent State (compare, mutatis mutandis, the above-cited cases of Çam, § 68, and Guberina, § 86). There has therefore been no violation of Article 1 of Protocol No. 12 as regards the 2015 Referendum with respect to both applicants.", "(ii) The 2019 EP Elections", "122. The first applicant did not vote in the 2019 EP Elections, allegedly because he was unable to hold a pen and thus would not be able to mark his ballot paper by himself. He argued that the respondent State should have made it possible for him to vote using a voting machine (see paragraph 102 above). The Court notes that the use of voting machines was no longer possible following the 2017 Amendment; thus, they could not be provided to anyone during the 2019 EP Elections (see paragraph 42 above). The Court must now assess whether, having regard to other options available to the first applicant, the respondent State complied with its positive obligations to secure his rights under Article 14 of the Convention, read in conjunction with Article 3 of Protocol No. 1 to the Convention.", "123. The Court notes that under the Elections Act, the first applicant could have voted either by going physically to his local polling station (which, pursuant to the 2017 Amendment, had to be wheelchair accessible) or by post, and possibly also at his home (see paragraphs 40 and 42 above). However, in view of his inability to mark the ballot paper by himself, he would – if he had chosen any of these options – have had to be assisted by another person, who would have marked his ballot paper for him and taken care of other practicalities, such as depositing the ballot paper in the ballot box or dispatching it by post. The Elections Act allowed for such assistance to be provided to the first applicant, who was free to choose the person to assist him.", "124. The Court further notes that the first applicant did not allege that he had been unable to request the assistance of another person. It observes in this regard that the first applicant had a family and was assisted by several people during the 2015 Referendum (see paragraph 25 above). That said, it is true that the provision of this kind of assistance most likely meant that the first applicant, who owing to his medical condition was unable to mark the ballot paper by himself, would have had to disclose his electoral choice to the person assisting him.", "125. The Court observes in this respect that the Constitutional Court, which was no doubt best placed to interpret the relevant domestic law, explained that the voting assistant had been obliged to respect the secrecy of the voting procedure under, inter alia, the Penal Code (see paragraph 35 above). It furthermore observes that this kind of assistance with voting, provided that the voter’s free will is respected, is in compliance with the international standards in the field, such as Article 29 of the CRPD and the Venice Commission’s Revised Interpretative Declaration (see paragraphs 54, 58, 59 and 61 above).", "126. As regards technology-assisted voting, the Court notes that it is also mentioned in the international instruments as one means of ensuring the right of people with disabilities to vote (see, for instance, paragraphs 54 and 58 above). The Court understands that voting machines might afford a higher level of autonomy in voting for some people with disabilities. When assessing whether in view of the foregoing the respondent State should have made voting machines available to the first applicant, the Court must have regard to the following factors.", "127. Firstly, the importance of the inclusion of people with disabilities in political life (which requires accessible voting procedures) has been clearly recognised in international instruments (see paragraphs 54, 57, 58, 59 and 61 above). However, the use of assistive technologies has been mentioned as one means of supporting people with disabilities in exercising their voting rights and not as a necessary requirement that would need to be immediately implemented (ibid.; see also paragraphs 55-56 above). The CRPD Committee’s decision of 16 February 2018 in respect of case no. 19/2014 does not seem to lead to a different conclusion (see paragraph 57 above).", "128. Secondly, the Court notes that the use of assistive technologies no doubt requires significant financial investment (especially if it is to be made available on a larger scale), that the operation of voting machines poses potential problems for the secrecy of the voting procedure (see paragraphs 62 and 63 above), and that in view of the information contained in the Constitutional Court’s decision (see paragraph 36 above), voting machines do not appear to be widely available in the member States. Indeed, there is no indication in the present case of a consensus having been reached among the member States as to the use of voting machines as a requirement for the effective exercise of the voting rights by people with disabilities (see paragraphs 35, 60 and 109 above).", "129. Therefore, and because assistance to people with disabilities may take a variety of forms, the decision as to whether voting machines should be used for that purpose is to be made primarily by the national authorities. They, by reason of their direct and continuous contact with the vital forces of their countries, are in principle better placed than an international court to evaluate local needs and conditions in this regard (see Çam, cited above, § 66). It is, however, important that those authorities take great care with the choices they make in this sphere, in view of the impact of those choices on people with disabilities, whose particular vulnerability cannot be ignored (see Enver Şahin, cited above, § 61).", "130. Bearing this in mind, the Court notes that in the present case, the Constitutional Court – during proceedings in which both applicants participated – dealt with the question of whether the lack of availability of voting machines resulting from the 2017 Amendment was in compliance with the Constitution and with the international obligations of Slovenia. The Constitutional Court took account of, inter alia, the fact that a very small number of people with disabilities had used voting machines in the past, that such machines could not assist people with all types of disabilities and that their provision was linked to high costs (see paragraph 35 above). The reasons provided by the Constitutional Court appear persuasive and based on a careful assessment of past experience in using voting machines and on the compliance of the new regulation with international standards (see paragraphs 34-36 above; also contrast, mutatis mutandis, Guberina, cited above, § 92).", "131. Therefore, and having regard to the other options available to the first applicant, especially the possibility of assistance by a person of his own choice (see paragraphs 123 to 125 above), the respondent State could not be said to have failed to strike a fair balance between the protection of the interests of the community and respect for the first applicant’s rights and freedoms, as safeguarded by the Convention.", "132. There has accordingly been no violation of Article 14, read in conjunction with Article 3 of Protocol No. 1, as regards the first applicant.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "133. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "134. The applicants claimed 12,000 euros (EUR) each in respect of non ‑ pecuniary damage.", "135. The Government argued that the claim was excessive.", "136. The Court, making its assessment on an equitable basis, as required by Article 41 of the Convention, awards the second applicant EUR 3,200 and the first applicant’s daughters each EUR 1,600 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable.", "Costs and expenses", "137. The applicants also claimed EUR 18,000 each for the costs and expenses incurred before the domestic courts and EUR 9,000 each for those incurred before the Court.", "138. The Government pointed out that the applicants had not submitted any proof of expenses concerning the domestic proceedings, nor had they specified in respect of which proceedings at domestic level they made their claim. The lawyer would have been entitled to legal fees based on the official lawyers’ tariff or an agreement. However, the applicants had not submitted any such agreement. As regards the proceedings before the Court, the Government relied on the domestic lawyers’ tariff and argued that each of the applicants was eligible to receive only EUR 1,500.", "139. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the second applicant the sum of EUR 1,500 and the first applicant’s daughters jointly the sum of EUR 1,500 for the proceedings before the Court, plus any tax that may be chargeable to them.", "Default interest", "140. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1975 and lives in Sofia. He was represented by Mr K. Kanev, the chairman of the Bulgarian Helsinki Committee, a non ‑ governmental organisation based in Sofia. On 15 January 2016 the then President of the Fifth Section gave Mr Kanev leave to represent the applicants in all pending and future cases in which he had been appointed to personally act as their representative (Rule 36 § 4 (a) in fine of the Rules of Court).", "3. The Government were represented by their Agent, Ms I. Stancheva ‑ Chinova of the Ministry of Justice.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. In his initial application, the applicant submitted that in 1999, he had been diagnosed with psychiatric disorders; the Government have not disputed those facts. On the basis of that diagnosis, on 12 May 2000 the Sliven Regional Court had placed him under partial guardianship. That measure had attracted, among other restrictions, the application of Article 42 § 1 of the Constitution (see paragraph 13 below) to the applicant, excluding him from the right to vote. The underlying court decision had held that the applicant’s health condition did not allow him to take good care of himself and that he was occasionally aggressive, but that the situation was not too serious.", "6. Furthermore, the following facts have been submitted by the Government in their observations, as well as by the applicant in reply, in respect of the present proceedings.", "7. On 4 November 2015, the applicant lodged an application with the Ruse Regional Court for the restoration of his legal capacity, through the services of a lawyer authorised by him and his guardian. In the proceedings that followed, on 15 February 2016 the court noted that the application had been lodged by the applicant’s guardian and terminated the proceedings on this ground. According to the applicable law, the applicant could only be a respondent in such proceedings; therefore, the guardian should have submitted an address for the applicant, in order that he might be summoned in that capacity. As no such address was submitted to the court, the proceedings could not continue. Following an appeal by the applicant, on 4 May 2016 the Veliko Tarnovo Court of Appeal upheld the first-instance court’s decision.", "8. On 19 May 2016, the applicant lodged a request for leave to appeal with the Supreme Court of Cassation, arguing that he had been denied free and direct access to a court, in contravention of the Convention. The Supreme Court of Cassation quashed the decision because the proceedings in question had been terminated, and remitted the case to the Ruse Regional Court for those proceedings to be reopened.", "9. On 19 October 2016, Ruse Regional Court terminated the proceedings again, reasoning that the applicant’s guardian, considered as a claimant, had failed to comply with the court’s instructions to specify the respondent in the case and to provide an address at which he could be summoned.", "10. On 24 January 2017, the President of the Republic of Bulgaria scheduled parliamentary elections, to be held on 26 March 2017. The applicant was unable to participate, owing to the fact that he had been declared legally incapable.", "11. Between 2014 and February 2017, the applicant’s guardian has been changed twice, for logistical reasons.", "12. On 17 May 2017, the applicant lodged a fresh application with the Sofia City Court for the restoration of his legal capacity. On 7 December 2017, the Sofia City Court gave a judgment restoring legal capacity to the applicant and lifting his guardianship considering that the applicant was able to manage his own affairs and interests and to realise the consequences of his own acts." ]

[ "RELEVANT LEGAL FRAMEWORK", "RELEVANT DOMESTIC LAWRight to vote of persons deprived of legal capacity", "Right to vote of persons deprived of legal capacity", "Right to vote of persons deprived of legal capacity", "13. Article 42 § 1 of the Bulgarian Constitution provides as follows :", "“Every citizen above the age of 18, with the exception of those placed under guardianship ( запрещение ) or serving a prison sentence, shall be free to elect State and local authorities and vote in referendums.”", "14. The relevant provisions of the 2014 Election Code read as follows:", "Chapter I", "List of voters", "Article 27", "“(1) The names of citizens who have lost their right to vote as at the date of elections or who are dead – as well as the names of persons in respect of whom this code so provides – must be removed from the list of voters. ...", "(3) ... [the names of] persons who have had their legal capacity restored to them ... will be added to the list of voters upon presentation of the respective document issued by the [relevant] municipality, region or mayor. ...”", "Chapter VII", "List of removed persons", "Contents of the list", "Article 38", "“(1) A list of persons (which shall include their permanent addresses) who have been removed from the electoral register is prepared – by the director of the Department for Civil Registration and Administrative Services of the Ministry of Regional Development and Public Works.", "(2) The list includes the names, the personal identification number, and the grounds for the removal of persons who:", "1. are placed under guardianship ...”", "Legal incapacitation", "15. The relevant provisions related to the legal status of persons placed under partial guardianship and their representation before the courts, as well as to the procedures for placement under partial guardianship and for restoration of legal capacity have been summarised in Stanev v. Bulgaria ([GC] no. 36760/06, §§ 42-47, and 51-52, ECHR 2012). In execution of this latter judgment, the Bulgarian authorities have enacted a number of legislative amendments among which the introduction, on 27 October 2017 under Article 340 (2) of the 2007 Civil Procedure Code, of the right to a direct access to a court for the persons placed under guardianship ( запрещение ) in order to request the restoration of their legal capacity.", "INTERNATIONAL and european LEGAL INSTRUMENTS AND COMPARATIVE PRACTICE", "16. The relevant international and European material concerning the right to vote of individuals deprived of legal capacity have been summarised in Strøbye and Rosenlind v. Denmark (nos. 25802/18 and 27338/18, §§ 66-71, 2 February 2021) and Caamaño Valle v. Spain (no. 43564/17, §§ 21-28, 11 May 2021).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1 TO THE CONVENTION", "17. The applicant complained that his disenfranchisement on account of his being placed under guardianship had been in violation of his rights under Article 3 of Protocol No. 1 to the Convention, which reads as follows:", "Article 3 of Protocol No. 1", "“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”", "AdmissibilityThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "18. The Government raised three preliminary objections, whereas the applicant maintained that the case should be examined on the merits.", "19. The Government firstly raised doubts about the validity of the applicant’s representation before the Court, arguing that the signature that appeared on the contract for legal services (submitted together with the applicant’s claim for just satisfaction) did not appear to be, in their view, identical to the one affixed to his identity card and to a copy of one of the documents annexed to the observations. The Government also considered this contract to be invalid owing to the absence of the signature of the applicant’s guardian, as required by the domestic law.", "20. Furthermore, the Government submitted that the application should be rejected for non-exhaustion of domestic remedies, arguing that the applicant had had the opportunity to seek the judicial termination of his guardianship, but had not – through his own fault and the fault of his legal representative – adequately availed himself of this procedure, which led to the termination of the proceedings (paragraphs 7-9 above).", "21. Lastly, the Government pleaded that the application constituted an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention, as the applicant had failed to inform the Court of: (1) his attempts to restore his legal capacity through judicial proceedings before the Bulgarian courts, and (2) the existence of proceedings for the appointment of a new guardian for the applicant (paragraphs 7 ‑ 9 and 12 above).", "22. The applicant’s representative responded that the applicant had signed the contract in question (together with other documents) in the offices of the Bulgarian Helsinki Committee in person; he therefore argued that he had been validly authorised to represent the applicant.", "23. The applicant also argued that the proceedings for the restoration of his legal capacity were irrelevant to the subject matter of his complaint. The purpose of the present application was solely to challenge the legal basis of his being deprived, as a person placed under guardianship, of his right to vote. He also contested the argument that he had abused of his right to lodge an application with the Court, as the information which the Government had asserted had been withheld from the Court (paragraph 21 above) did not in fact relate to the core matter of the present case.", "The Court’s assessment", "(a) Regarding the validity of the applicant’s representation", "24. The Court observes that the applicant signed the “power of attorney” section within the application form and thus authorised Mr K. Kanev to act as his representative before the Court. The applicant did not at a later stage lodge any declaration that he had withdrawn this power of attorney. The Court is therefore satisfied that the application was validly submitted on behalf of the applicant and that the latter wishes Mr Kanev to pursue his complaints. The Court also notes that for the applicant to lodge an application with the Court (whether or not he is represented), the applicant’s guardian’s consent is not required, even if that is the case under the domestic legal framework (see Stanev v. Bulgaria [GC], no. 36760/06, § 43, ECHR 2012, where it appeared that the applicable law required that a person under partial guardianship may instruct a lawyer provided that the form of authority was signed by the guardian, but for the procedure before the Court such an authority was not required, see also Zehentner v. Austria, no. 20082/02, § 39, 16 July 2009). Therefore, the Court dismisses the first preliminary objection by the Government.", "(b) Regarding the exhaustion of domestic remedies", "25. The general principles on the rule of exhaustion of domestic remedies have been summarised in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). That rule obliges those seeking to bring a case against the State before an international judicial body to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (ibid., §§ 70 and 71, with further references).", "26. The only remedies to be exhausted are those which are effective. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that special circumstances existed which absolved him or her from this requirement (ibid., § 77; see also Kalashnikov v. Russia (dec.), no. 47095/99, ECHR 2001 ‑ XI (extracts), with further references).", "27. In the instant case, the Court notes the Government’s observation that had the applicant himself conducted the proceedings for the judicial termination of his guardianship he could have secured the restoration of his right to vote (paragraph 20 above). However, the Court observes that the courts that examined the applicant’s civil action for the restoration of his civil capacity – namely the Ruse Regional Court and the Veliko Tarnovo Court of Appeal – terminated those proceedings, having deemed that the applicant should have been acting as the respondent (and not as a claimant) in those civil proceedings; in so doing, those courts denied him direct access to a court in respect of that matter (paragraphs 7-9 above). The Court reiterates, in that respect, that it has already ruled that such a situation was in breach of the rights protected under Article 6, and has even indicated to the Bulgarian authorities that they should provide for the necessary general measures to ensure the effective possibility of such access (see, Stanev, cited above, §§ 233-248 and § 258). In the present case, the first attempt, by the applicant, to secure the restoration of his legal capacity took place in 2015 and 2016 (paragraphs 7-9 above), while the legislative amendment allowing for direct access to a court was enacted after that time (in October 2017, see paragraph 15 above). It therefore appears that, although the Supreme Court of Cassation seems to have accepted the applicant’s argument that he had a right to direct access to court and enjoined the lower courts to continue the proceedings (paragraph 8 above), the Ruse Regional Court and the Veliko Tarnovo Court of Appeal nevertheless applied the legislation as it stood prior to the Stanev judgment (cited above). It follows that, by refusing to accept the applicant as a claimant in the proceedings for the restoration of his legal capacity, the domestic courts failed to apply the conclusions of the Stanev judgment. In other words, given the fact that the applicant attempted to request the restoration of his legal capacity (even though the applicable legislation still did not offer him direct access to a court), he gave the domestic authorities the opportunity to examine on the merits his legal status, but they refused to do so. Given those circumstances, the Court cannot accept the Government’s argument that the applicant was not diligent in his use of the remedy in question.", "28. The Court also considers it relevant to observe that the essence of the applicant’s complaint is not that he was divested of his legal capacity, but that as a person in such a situation, he was barred from participating in any form of election in the country. An opportunity to seek the termination of his guardianship would constitute a solution that would directly address the issue of the applicant’s disenfranchisement only in the event that all criteria for the restoration of his legal capacity were present – even if those relevant for the question of the applicant’s right to vote would appear to have been fulfilled. That is so because the right to vote in elections is not specifically examined in proceedings to restore a person’s legal capacity; rather, it is an automatic consequence of the successful outcome of such proceedings. Accordingly, an unsuccessful attempt at lifting a person’s guardianship will lead to continued disenfranchisement, despite the fact that the issue of voting will not even be addressed by the respective court in such proceedings. The Court notes that the Government have not submitted examples of domestic case-law indicating that even where the domestic courts refused to lift a person’s legal incapacity, they nonetheless discussed separately the question of the right to vote and made a decision, where appropriate, whether any restrictions on that person’s right to vote should continue to be imposed. It appears that such a possibility would in principle be excluded by the courts on the basis of the relevant constitutional and legal domestic provisions (paragraphs 13 ‑ 14 above).", "29. In view of the foregoing, the Court finds that, in the circumstances of the present case, the proceedings for the termination of guardianship were not an effective remedy. It follows that the application cannot be rejected for non ‑ exhaustion of domestic remedies.", "(c) Regarding the abuse of the right of individual petition", "30. The Court reiterates that, according to its case-law, an application is an abuse of the right of application if it is knowingly based on untrue facts with a view to deceiving the Court (see, among other authorities, X and Others v. Bulgaria [GC], no. 22457/16, § 145, 2 February 2021). Furthermore, the submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014). The same applies if important new developments have occurred during the proceedings before the Court and if, despite being expressly required to do so by Rule 47 § 7 of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts. However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 97, ECHR 2012).", "31. Turning to the circumstances of the present case, the Court has no basis to conclude that the applicant intentionally submitted facts which he knew to be false. In addition, the Court considers that while it is true that, in his initial application, the applicant did not provide the information specified by the Government, that information cannot be deemed to be essential for deciding the outcome of the application. The Court gives particular weight to the fact that the applicant’s complaint questions the automatic constitutional ban on his right to vote after he was declared legally incapable – regardless of whether or not his legal capacity is restored to him in the future. The Court has already noted that the proceedings for restoring the applicant’s legal capacity do not relate sufficiently to the core issue highlighted in the present complaint (paragraphs 27-29 above).", "32. Accordingly, the Court rejects the Government’s preliminary objection that the applicant’s conduct constituted an abuse of the right of application within the meaning of Article 35 § 3 (a) in fine of the Convention.", "(d) Conclusion on the admissibility", "33. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicant", "34. The applicant submitted that his exclusion from the possibility to vote in elections on the basis of a generally applicable legal provision and without an individual judicial assessment had been disproportionate and in violation of his rights under Article 3 of Protocol No. 1 to the Convention.", "35. In the applicant’s view, his case was similar to the case of Alajos Kiss v. Hungary (no. 38832/06, 20 May 2010) in that he had lost his right to vote as a result of an indiscriminate ban under Article 42 § 1 of the Constitution (see paragraph 13 above). He submitted that there had been no individual assessment of his ability to evaluate the consequences of his actions and to make conscious choices within the context of the election procedure. His disenfranchisement had been based solely on the fact that he had been placed under partial guardianship.", "36. The applicant submitted that the proportion of adults placed under guardianship in Bulgaria and therefore affected by the voting restriction at issue was comparable to that in Hungary – estimated at 0.75% of Hungary’s voting-age population and discussed in the case of Alajos Kiss (cited above, § 39). He considered those figures to be relevant as they took into consideration not only persons under partial guardianship, but also persons placed under full guardianship – all of who were denied the right to vote. The applicant added that the proportion of persons under partial guardianship in Bulgaria amounted to about 0.014 % of the voting-age population.", "37. Lastly, the applicant agreed with the third-party intervener (see paragraph 42 below) that the exclusion of disabled people, including those suffering from mental disorders, from the possibility to vote in elections was in contravention of international standards (see paragraph 16 above). He echoed the observations of the intervener that the Contracting States were gradually implementing reforms aimed at recognising the right of suffrage of all disabled people and that the implementation of such reforms everywhere was only a matter of time.", "(b) The Government", "38. The Government submitted that the applicant had voluntarily placed himself in a situation where his right to vote was limited under the relevant national legislation; he had done this by failing to comply with the Ruse Regional Court’s instructions to identify himself as the defendant in the case before it and to provide an address at which he could be summoned (paragraphs 7-9 above).", "39. The Government furthermore emphasised the fact that the right to vote was not absolute and could be subject to a number of restrictions. The restriction on the voting rights of persons under guardianship pursued a legitimate aim – namely to ensure that only persons capable of making informed and meaningful decisions could participate in the choice of the country’s legislature.", "40. In the Government’s view, the limitation imposed on persons under guardianship was proportionate to the pursued aim and within the State’s margin of appreciation, as it guaranteed that the electoral process was conducted in a manner that best reflected the voters’ will. Although the limitation in question was stipulated by a constitutional provision, its application was not automatic, as each person’s individual situation was assessed by the national courts within the course of the proceedings to place that person under guardianship. In addition, the applicant’s right to vote would be statutorily restored in case his placement under guardianship was lifted upon judicial reviews of his condition, in view of his improved mental status.", "41. Lastly, the Government explained that persons under partial guardianship in the Republic of Bulgaria accounted for 0.014% of all nationals who were permanently resident on the territory of the country and who would otherwise be able to vote, suggesting that the restriction in issue was linked to a limited group of persons in a very particular situation.", "(c) The third-party intervener", "42. Validity Foundation – Mental Disability Advocacy Center, an international human rights non-governmental organisation based in Hungary, submitted, inter alia, that the right to vote was universal and that there was a clear international consensus that all people with disabilities should be afforded the same right to political participation as everyone else. This consensus was evident not only from international instruments adopted by authoritative bodies – including the Council of Europe Commissioner for Human Rights, the United Nations’ Special Rapporteur on Disability, and the United Nations’ Committee on the Rights of Persons with Disabilities – but also from recent reform initiatives implemented in the Contracting States. The intervener concluded that stripping people with disabilities of their right to express their political views damaged the integrity of the electoral system and undermined the legitimacy of public institutions.", "The Court’s assessment", "(a) General principles", "43. The Court has established that Article 3 of Protocol No. 1 guarantees individual rights, including the right to vote and to stand for election (see, inter alia, Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 51, Series A no. 113, and Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 385, 22 December 2020).", "44. However, the rights guaranteed under Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations, and the Contracting States have a margin of appreciation in this sphere, which generally is a wide one (see the above-cited cases of Mathieu-Mohin and Clerfayt, § 52, and Selahattin Demirtaş, § 387). At the same time, the Court reiterates that if a restriction on the right to vote applies to a particularly vulnerable group in society that has suffered considerable discrimination, such as the mentally disabled, then the margin of appreciation of the State in question is substantially narrower. The reason for this approach, which questions certain classifications per se, is that such groups have been historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice may entail legislative stereotyping that prohibits the individualised evaluation of their capacities and needs (see Alajos Kiss, cited above, § 42). The Court emphasises, in that respect, that the quality of the parliamentary and judicial review of the necessity of a general measure, such as the disputed disenfranchisement imposed as a consequence of declaring a person legally incapable, is of particular importance, including to the operation of the relevant margin of appreciation (see Strøbye and Rosenlind v. Denmark, nos. 25802/18 and 27338/18, § 92, 2 February 2021).", "45. Another factor that has had an impact on the scope of States’ margin of appreciation is the Court’s fundamentally subsidiary role in the Convention protection system. The Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto, and in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the Court. Through their democratic legitimation, the national authorities are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions (see, inter alia, Lekić v. Slovenia [GC], no. 36480/07, § 108, 11 December 2018; and Strøbye and Rosenlind, cited above, § 93).", "46. It is for the Court to finally determine whether the requirements of Article 3 of Protocol No. 1 have been complied with. It has to satisfy itself that the limitations imposed on the exercise of the rights under Article 3 of Protocol No. 1 do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see the above-cited cases of Mathieu-Mohin and Clerfayt, § 52, and Selahattin Demirtaş, § 387).", "47. In addition, any conditions imposed must not thwart the “free expression of the people in their choice of legislature” (see Selahattin Demirtaş, cited above, § 388). In other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws that it promulgates. Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (see, among other authorities, Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 62, ECHR 2005 ‑ IX, and Scoppola v. Italy (no. 3) [GC], no. 126/05, § 84, 22 May 2012). More specifically, election results should not be obtained through votes cast in a manner that runs counter to the fairness of elections or the free expression of the will of voters (see Caamaño Valle v. Spain, no. 43564/17, § 57, 11 May 2021).", "48. The Court reiterates that the presumption in a democratic State must be in favour of the inclusion of all, and that universal suffrage is the basic principle (see Hirst (no. 2 ), cited above, § 59; Sitaropoulos and Giakoumopoulos v. Greece [GC], no. 42202/07, § 67, ECHR 2012; and Scoppola (no. 3), cited above, § 82). This does not mean, however, that Article 3 of Protocol No. 1 guarantees to persons with a mental disability an absolute right to exercise their right to vote. Under this provision, such persons are not immune to limitations of their right to vote, provided that the limitations comply with the conditions set out in paragraphs 46-47 above. For the purpose of the interpretation of Article 3 of Protocol No. 1, the Court has recently noted the fact that there is at present no consensus among the States Parties to Protocol No. 1 in the sense of an unconditional right of persons with a mental disability to exercise their right to vote. On the contrary, a majority of these States seems to allow for restrictions based on the mental capacity of the individual concerned (see Caamaño Valle, cited above, § 59).", "49. The margin of appreciation left to the States is not unlimited. The Court has already stated that an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties, does not fall within any acceptable margin of appreciation (see Alajos Kiss, cited above, § 42). Likewise, the indiscriminate removal of voting rights, without an individualised judicial evaluation and solely on the basis of a mental disability necessitating partial guardianship, cannot be considered compatible with the legitimate grounds for restricting the right to vote (ibid., § 44).", "50. By contrast, the Court has accepted as legitimate the aim of “ensuring that only citizens capable of assessing the consequences of their decisions and of making conscious and judicious decisions should participate in public affairs” (ibid., § 38).", "(b) Application of the general principles to the present case", "51. In the present case, the applicant was placed under partial guardianship owing to his suffering from psychiatric disorders. As a consequence, he was disenfranchised and prevented from voting in parliamentary elections. His right to vote was thus restricted by law, which was not disputed by the parties. The Court will proceed to determine whether the disenfranchisement of the applicant pursued a legitimate aim in a proportionate manner, having regard to the principles identified above.", "(i) Legitimate aim", "52. The Court points out that Article 3 of Protocol No. 1 does not, like other provisions of the Convention, specify or limit the aims that a restriction must pursue and that a wide range of purposes may therefore be compatible with that provision. The Government submitted that the measure complained of had pursued the legitimate aim of ensuring that only persons capable of making informed and meaningful decisions could participate in the choice of legislature in the country (paragraph 39 above). The applicant did not comment on that point. The Court is satisfied that the impugned measure pursued a legitimate aim (see Alajos Kiss, cited above, § 38).", "(ii) Proportionality", "53. The Court notes that the restriction in question does not distinguish between those under total guardianship and those under partial guardianship; Article 42 § 1 of the Constitution concerns citizens “placed under guardianship” in general (see paragraph 13 above). The restriction is removed only once guardianship is lifted (see the Government’s submission in paragraph 40 above). It also observes that the parties’ submissions contain statistics reflecting the proportion of Bulgaria’s voting-age population that has been disenfranchised on account of being under guardianship as a whole (that is to say under either partial guardianship or total guardianship) indicating that the proportion of persons who have been only partially deprived of legal capacity in Bulgaria amounts to 0.014% of the voting-age population (see paragraphs 36 and 41 above). However, the Court does not consider it necessary to take a position on the relevance of this data in view of the fact that, in any event, the impugned restriction appears to be disproportionate to the legitimate aim pursued by the State in this case, in the light of the following observations.", "54. The Government argued, referring to the margin of appreciation that they enjoyed, that it must be permissible for the legislature to establish rules ensuring that the electoral process was conducted in such a manner as to best reflect the voters’ will (see paragraph 40 above).", "55. The Court has already accepted that this is an area in which, generally, a wide margin of appreciation should be granted to the national legislature in determining whether restrictions on the right to vote can be justified in modern times and, if so, how a fair balance is to be struck. In particular, it should be for the legislature to decide as to what procedure should be tailored to assess the fitness to vote of mentally disabled persons (see Alajos Kiss, cited above, § 41). The Court observes that there is no evidence that the Bulgarian legislature has ever sought to weigh the competing interests or to assess the proportionality of the restriction as it stands (see, mutatis mutandis and in relation to the Hungarian legislature, Alajos Kiss, cited above, § 41) and thus open the way for the courts to conduct a particular analysis of the capacity of the applicant to exercise the right to vote, independently of a decision to place a person under a guardianship. It has been noted above that the Government has failed to prove that domestic judicial practice allows for the possibility of lifting the restriction on a person’s right to vote in cases where that person remains deprived of his or her legal capacity. It moreover appears that such possibility would not be in line with the domestic legal framework (see paragraph 27 above).", "56. The applicant in the present case lost his right to vote as the result of the imposition of an automatic, blanket restriction on the franchise of those under partial guardianship (with no option for an individualised judicial evaluation of his fitness to vote); this placed him in a situation similar to that of the applicant in the case of Alajos Kiss (cited above, and contrast, Strøbye and Rosenlind, §§ 113 and 120, and Caamaño Valle, § 71, both cited above, where the Court noted that there had been no blanket restriction of the right of suffrage and individualised judicial review had taken place). The applicant may therefore claim to be a victim of a measure incompatible with the relevant established principles (see, in particular, paragraph 49 above). The Court cannot speculate as to whether the applicant would still have been deprived of the right to vote, even if a more limited restriction on the rights of the mentally disabled had – in compliance with the requirements of Article 3 of Protocol No. 1 – been imposed (see Alajos Kiss, cited above, § 43).", "57. The Court reiterates that the treatment as a single class of all those with intellectual or psychiatric disabilities is a questionable classification, and the curtailment of their rights must be subject to strict scrutiny (ibid., § 44). The Court therefore concludes that the indiscriminate removal of the voting rights of the applicant – without an individualised judicial review and solely on the basis of the fact that his mental disability necessitated that he be placed under partial guardianship – cannot be considered to be proportionate to the legitimate aim for restricting the right to vote, as advanced by the Government (see paragraph 52 above).", "58. There has accordingly been a violation of Article 3 of Protocol No. 1 to the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "59. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "60. The applicant claimed 3,000 euros (EUR) in respect of non-pecuniary damage.", "61. The Government contested this claim as excessive and unsubstantiated.", "62. The Court awards the applicant’s claim in respect of non-pecuniary damage in full, plus any tax that may be chargeable.", "Costs and expenses", "63. The applicant also claimed EUR 1,926 for the costs and expenses incurred in the proceedings before the Court. This sum corresponds to twenty ‑ four hours of legal work, according to the time-sheet submitted, billable by his representative and charged at an hourly rate of EUR 80, plus EUR 6 for postage. He also requested that any award under this head be made directly payable to the Bulgarian Helsinki Committee. [1]", "64. The Government contested this claim as excessive.", "65. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers the sum claimed for costs and expenses reasonable and awards it in full, plus any tax that may be chargeable to the applicant. As requested by the applicant, this sum is to be paid directly into the bank account of the Bulgarian Helsinki Committee. [2]", "Default interest", "66. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1964 in Egypt and currently lives in Hamrun, Malta.", "A. Background to the case", "7. The applicant had a Maltese tourist visa, which had been issued in 1991 and had been valid for three months. Having overstayed this visa, he remained in Malta illegally.", "8. In 1993, when the applicant was 29 years of age and still living in Malta illegally, he met MP, a Maltese citizen, who at the time was 17 years of age. Three months later, on 13 October 1993, they married in a civil ceremony. On 26 February 1994 they also married in accordance with the Catholic rite.", "9. On 18 November 1993 the applicant enquired about his “exempt person status” (see paragraph 34 below) and on 23 November 1993 started the process to obtain Maltese citizenship on the basis of his marriage to a Maltese national.", "10. The applicant’s exempt person status was confirmed on 2 March 1994. On 19 April 1994, following the processing of his application and consequent to the marriage, he was registered as a Maltese citizen. On 12 September 1994, he therefore lodged an application to renounce his Egyptian nationality (a copy of the relevant application form has not been submitted to the Court). It transpires from a letter issued by the Consul of the embassy of the Arab Republic of Egypt in Malta that on 29 September 1994 the applicant’s request was approved and his Egyptian passport withdrawn. At the relevant time, dual nationality was not possible under either Egyptian or Maltese law.", "11. According to the Government, in 1994 the applicant and MP had various marital problems, which led the applicant to leave the matrimonial home on two occasions. The applicant had behaved aggressively, and in particular on 5 June 1994 he had physically assaulted his pregnant wife, causing her a permanent disability. MP left the matrimonial home thereafter.", "12. The applicant was charged, remanded in custody, and eventually tried and found guilty in respect of the act of assault. He was given a suspended sentence.", "13. In the meantime, on 13 December 1994 a child, LR, was born of the marriage. LR is a Maltese citizen. The various family disputes continued between the couple.", "14. On 8 February 1995 MP instituted court proceedings to annul the marriage. Following adversarial proceedings where both parties were represented by a lawyer, the applicant’s marriage was annulled by a judgment of 19 January 1998. The court delivering the judgment was satisfied (to the degree necessary in civil proceedings, namely on a balance of probabilities) that the applicant’s only reason for marrying had been to remain in Malta and acquire citizenship; thus he was positively excluding marriage itself, and there had been a simulation of marriage. Since no appeal was lodged against the judgment, it became final.", "15. The applicant did not inform the authorities of the judgment concerning the annulment of his marriage and he remained resident in Malta and retained his Maltese citizenship.", "16. On 30 June 2003 the applicant married VA, a Russian citizen, four months after their first encounter. The applicant enquired about the exempt person status of his Russian wife and was asked to produce a copy of the judgment of annulment of his first marriage. On 4 July 2003 the applicant produced a copy of the judgment and it was only at this point that the authorities became aware of the reason for the annulment of his first marriage.", "17. Following an application to that effect, on 27 September 2004 VA was granted exempt person status and thus had full freedom of movement (see “Relevant domestic and international law and practice” below). According to the Government, although this was contested by the applicant, attention was drawn to the fact that the benefit of such status would cease if the applicant lost his citizenship. Two sons were born of this marriage, VR and VL, in 2004 and 2005 respectively. They are both Maltese citizens.", "18. On 8 May 2006 the applicant was informed that an order was to be made to deprive him of his Maltese citizenship (under Article 14 § 1 of the Maltese Citizenship Act – “the Citizenship Act”; see “Relevant domestic and international law and practice” below), which, according to the judgment of 19 January 1998, appeared to have been obtained by fraud. He was informed of his right to an inquiry.", "19. The applicant challenged that decision, claiming that it was not true that he had obtained his marriage by fraud and stressing that he had three Maltese children.", "20. In consequence, proceedings were instituted to investigate the applicant’s situation and if necessary divest him of his Maltese citizenship. A committee was set up for this purpose in accordance with Article 14 § 4 of the Citizenship Act. A number of hearings were held before the committee where the applicant was assisted by a lawyer. He was allowed to make oral and written submissions and submit evidence, including witness testimony. It appears from the documents available that the applicant contested the basis of the annulment decision and claimed that he had not been aware that he could have appealed against it. He also contested the findings of a court of criminal jurisdiction that had found him guilty of injuring his wife and causing her a permanent disability.", "21. The applicant’s ex-wife and an official from the Department of Citizenship and Expatriate Affairs, as well as a priest, also gave testimony.", "22. The committee’s final recommendation to the Minister of Justice and Internal Affairs was not made available to the applicant. Requests by the applicant’s lawyer for a copy of the records of those proceedings remained unsatisfied.", "23. On 31 July 2007 the Minister ordered that the applicant be deprived of his citizenship with immediate effect, in accordance with Article 14 § 1 of the Citizenship Act.", "24. By a letter of 2 August 2007 from the Director of the Department of Citizenship and Expatriate Affairs, the applicant was informed that the Minister of Justice and Internal Affairs had concluded that the applicant had obtained citizenship by fraudulent means and that therefore on 31 July 2007, in accordance with Article 14 § 1 of the Citizenship Act, the Minister had ordered that he be immediately divested of his citizenship. He was required to return his certificate of registration as a Maltese citizen and his passport.", "B. Constitutional redress proceedings", "25. The applicant instituted constitutional redress proceedings, complaining under Articles 6, 8 and 14 of the Convention. He claimed that he had not had a fair trial and appropriate access to a court for the determination on his right to citizenship. Moreover, the revocation of his citizenship had not been in accordance with the law. The prerequisites for such action had not existed, as his first marriage had not been one of convenience.", "26. By a judgment of 12 July 2011 the Civil Court (First Hall) in its constitutional jurisdiction rejected the applicant’s complaint under Article 6, finding that the committee set up for that purpose had not been a tribunal, but solely an investigative body capable of giving recommendations but not making final decisions. The court, however, found that the applicant’s Article 8 rights would be breached if, as a result of his being divested of his citizenship, he became an alien. His de jure family (in respect of the second marriage) would suffer irremediable harm if, as a father (of the two Maltese children of that marriage), he were required to move to another country. Thus, the revocation of citizenship in the present case was in breach of Article 8. Consequently, the court annulled the order of 31 July 2007 and considered that it was not necessary to rule on any further complaints.", "27. On appeal, by a judgment of 25 May 2012 the Constitutional Court overturned the first-instance judgment in part. It rejected the Article 6 complaint on the basis that the provision was not applicable in the absence of a civil right. In that connection, it rejected the applicant’s contention that the revocation of citizenship affected his right to a family life and therefore was civil in nature, as citizenship was a matter of public law and fell under the prerogatives of the State. It also reversed the part of the judgment in respect of Article 8, commenting that it had not been established that the applicant had a family life in Malta, and, even if this were so, the revocation of his citizenship would not necessarily result in his having to leave Malta. Indeed, it had not transpired that the applicant would be denied the right to reside in Malta or that he had applied to reside in Malta and been refused, nor had a removal order been issued.", "C. Other developments", "28. Following the lodging of the application with the Court, on 16 November 2012 the applicant’s lawyer wrote to the relevant authorities informing them that the case was pending before the Court and that therefore no action should be taken on the basis of the order of 31 July 2007. No feedback, apart from an acknowledgment of receipt, was received concerning that letter. However, although the order to deprive the applicant of his citizenship with immediate effect remains in force, no action has been taken to date in pursuit of the order and no removal order has been issued.", "29. Although the applicant considers that the implementation of the order is only a matter of time, he is currently still residing and carrying out his business in Malta. He has a trading licence, which is renewed periodically. He continued using a Maltese passport to travel until 2014, when it expired, as he had failed to return it to the authorities despite their request.", "30. The applicant does not appear to have any contact with his first son, but claims to be in a family environment with his second wife and their children. Following the revocation of his citizenship, the applicant’s second wife lost her exempt person status and the attached rights to freedom of movement." ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE", "A. Domestic law", "1. The Constitution", "31. Article 44 of the Maltese Constitution concerns the right to freedom of movement. Its sub-paragraphs (1) and (4) read as follows.", "“(1) No citizen of Malta shall be deprived of his freedom of movement, and for the purpose of this Article the said freedom means the right to move freely throughout Malta, the right to reside in any part of Malta, the right to leave and the right to enter Malta.”", "“(4) For the purposes of this Article, any person -", "( a ) who has emigrated from Malta (whether before, on or after the appointed day) and, having been a citizen of Malta by virtue of Article 3(1) or of Article 5(1) of the Maltese Citizenship Act as in force upon the coming into force of the Maltese Citizenship (Amendment) Act, 2000, has ceased to be such a citizen; or", "( b ) who emigrated from Malta before the appointed day and, but for his having ceased to be a citizen of the United Kingdom and Colonies before that day, would have become a citizen of Malta by virtue of Article 3(1) of the Maltese Citizenship Act as in force upon the coming into force of the Maltese Citizenship (Amendment) Act, 2000; or", "( c ) who is the spouse of a person mentioned in paragraph ( a ) or ( b ) of this sub-Article or of a person who is a citizen of Malta by virtue of Article 3(1) or of Article 5(1) of the Maltese Citizenship Act as in force upon the coming into force of the Maltese Citizenship (Amendment) Act, 2000, and who has been married to that person for at least five years and is living with that person, or is the child under twenty-one years of age of such a person; or", "( d ) who is the widow or the widower of a person mentioned in paragraph ( a ) or paragraph ( b ) of this sub-Article or of a person who at the time of his or her death was a citizen of Malta by virtue of Article 3(1) or of Article 5(1) of the Maltese Citizenship Act as in force upon the coming into force of the Maltese Citizenship (Amendment) Act, 2000, and who was still living with him or her at the time of his or her death and had been married to that person for at least five years or who would, but for the death of that person, have been so married for at least five years, or is the child under twenty-one years of age of such a person,", "shall be deemed to be a citizen of Malta by virtue of Article 3(1) or of Article 5(1) of the Maltese Citizenship Act as in force upon the coming into force of the Maltese Citizenship (Amendment) Act, 2000:", "Provided that if the Minister responsible for matters relating to Maltese citizenship at any time by order declares that it is contrary to the public interest that a spouse as is mentioned in paragraph ( c ), or a widow or widower as is mentioned in paragraph ( d ) or a child over eighteen years of age as is mentioned in paragraph ( c ) or ( d ) is to be so deemed, or to continue to be so deemed, such spouse, widow, widower or child, as the case may be, shall thereupon cease to be deemed to be a citizen of Malta as aforesaid:", "Provided further that the Minister responsible for matters relating to Maltese citizenship shall not be required to assign any reason for the issue of any order referred to in the immediately preceding proviso, and the decision of the Minister on any such order shall not be subject to appeal to or review in any court.”", "2. The Citizenship Act", "32. The relevant Articles of the Citizenship Act, Chapter 188 of the Laws of Malta, read as follows.", "Article 14 – previously Article 9 (prior to the amendments in 2000)", "“(1) Subject to the provisions of this Article, the Minister may by order deprive of his Maltese citizenship any citizen of Malta who is such by registration or naturalisation if he is satisfied that the registration or certificate of naturalisation was obtained by means of fraud, false representation or the concealment of any material fact.", "(2) Subject to the provisions of this Article, the Minister may by order deprive of his Maltese citizenship any citizen of Malta who is such by registration or by naturalisation if he is satisfied that the citizen—", "( a ) has shown himself by act or speech to be disloyal or disaffected towards the President or the Government of Malta; or", "( b ) has, during any war in which Malta was engaged, unlawfully traded or communicated with an enemy or been engaged in or associated with any business that was to his knowledge carried on in such a manner as to assist an enemy in that war; or", "( c ) has, within seven years after becoming naturalised, or being registered as a citizen of Malta, been sentenced in any country to a punishment restrictive of personal liberty for a term of not less than twelve months; or", "( d ) has been ordinarily resident in foreign countries for a continuous period of seven years and during that period has neither—", "(i) been at any time in the service of the Republic or of an international organisation of which the Government of Malta was a member; or", "(ii) given notice in writing to the Minister of his intention to retain citizenship of Malta.", "(3) The Minister shall not deprive a person of citizenship under this Article unless he is satisfied that it is not conducive to the public good that that person should continue to be a citizen of Malta and, in the case referred to in sub-Article (2)( c ), it appears to him that that person would not thereupon become stateless.", "(4) Before making an order under this Article, the Minister shall give the person against whom the order is proposed to be made notice in writing informing him of the ground on which it is proposed to be made and of his right to an inquiry under this Article; and if that person applies in the prescribed manner for an inquiry, the Minister shall refer the case to a committee of inquiry consisting of a chairman, being a person possessing judicial experience, appointed by the Minister and of such other members appointed by the Minister as he thinks proper.", "(5) The Minister may make rules for the practice and procedure to be followed in connection with a committee of inquiry appointed under this Article, and such rules may, in particular, provide for conferring on any such committee any powers, rights or privileges of any court, and for enabling any powers so conferred to be exercised by one or more members of the committee.”", "Article 15", "“(1) A citizen of Malta who is deprived of his citizenship by an order of the Minister under Article 14 shall, upon the making of the order, cease to be a citizen of Malta.", "...”", "Article 19", "“The Minister shall not be required to assign any reason for the grant or refusal of any application under this Act and the decision of the Minister on any such application shall not be subject to appeal to or review in any court.”", "Article 27", "“(1) The acquisition or retention of Maltese citizenship by any person under the Constitution of Malta or any other law, prior to the enactment of the Maltese Citizenship (Amendment) Act, 2000 shall not be affected in any way by the provisions of the said Act.", "(2) This Act shall not apply with regard to any application for registration as a citizen of Malta filed before the 15th day of August, 1999.”", "33. The above-mentioned committee of inquiry is regulated by Subsidiary Legislation 188.02, the Deprivation of Maltese Citizenship (Committee of Inquiry) Rules.", "34. Among others, the non-Maltese spouse of a citizen of Malta is eligible for “exempt person status”, which may be enjoyed as long as the spouse is still married to and living with that person. Under the provisions of the Immigration Act (Chapter 217 of the Laws of Malta), an exempt person is entitled to freedom of movement. In accordance with the Maltese Constitution, this means the right to move freely throughout Malta, the right to reside in any part of Malta, and the right to leave and the right to enter Malta. In 2004 Malta joined the European Union and the relevant directives became applicable, including Directive 2004/38/EC of 29 April 2004 on the right of EU citizens and their family members to move and reside freely within the territory of the Member States.", "35. Under Article 5 of the Citizenship Act, every person born in Malta becomes a Maltese citizen on his date of birth. The Citizenship Act also provides, however, and in so far as relevant, that a person born in Malta on or after 1 August 1989 may not become a citizen of Malta unless, at the time of his birth, his father or his mother was a citizen of Malta or a person who, having been a citizen of Malta, emigrated from Malta (Article 44 § 4 (a) and (b) of the Constitution). The two provisos do not apply in the case of a new-born infant found abandoned anywhere in Malta, who would by virtue thereof be stateless. Any such infant remains a citizen of Malta until his right to any other citizenship is established.", "3. The Immigration Act", "36. The relevant parts of Article 14 of the Immigration Act, Chapter 217 of the Laws of Malta, read as follows.", "“(1) If any person is considered by the Principal Immigration Officer to be liable to removal as a prohibited immigrant under any of the provisions of Article 5, the said Officer may issue a removal order against such person who shall have a right to appeal [before the Immigration Appeals Board] against such order in accordance with the provisions of Article 25A:", "...", "(2) Upon such order being made, such person against whom such order is made, shall be detained in custody until he is removed from Malta:", "...", "(3) Nothing in this Article shall affect the obligation of any person who does not fulfil or who no longer fulfils the conditions of entry, residence or free movement to leave Malta voluntarily without delay.", "(4) Removal of a person shall be to that person’s country of origin or to any other State to which he may be permitted entry, in particular under the relevant provisions of any applicable readmission agreement concluded by Malta and in accordance with international obligations to which Malta may be party.", "(5) Nothing in this Article shall preclude or prejudice the application of Maltese law on the right to asylum and the rights of refugees and of Malta’s international obligations in this regard.", "...”", "4. The Immigration Regulations", "37. The relevant part of Subsidiary Legislation 217.04 provides the following rules.", "“12. (1) A third country national shall only be entitled to reside in Malta if a uniform residence permit for a specific purpose is issued in his regard.", "(2) The provisions of subregulation (1) shall not apply to a third country national who has been given temporary permission to reside in Malta for the purpose of the processing of an application for asylum or an application for a uniform residence permit.", "(3) [Not yet in force] Without prejudice to Regulation 7(3), the provisions of Regulations 5, 6, 8, 9 and 10 shall mutatis mutandis apply to this Part, so however that a third country national cannot apply for a licence or a uniform residence permit for the purpose of seeking or taking up employment; nor may he apply to change the nature of the uniform residence permit into one empowering him to seek or take up employment, while he is already in Malta, save as the Minister may direct in exceptional circumstances. ”", "38. Regulations 5, 6, 8, 9 and 10 refer to residence and employment with regard to citizens of the European Union.", "39. Regulation 12(3) has not yet come into force but will do so on such date as the Minister may by notice in the Government Gazette of Malta appoint.", "B. International materials", "1. United Nations", "40. Malta is not a party to the 1954 United Nations Convention relating to the Status of Stateless Persons, nor is it a party to the 1961 Convention on the Reduction of Statelessness. A report by the United Nations Refugee Agency Office in Malta, entitled “Mapping Statelessness in Malta” (2014), recommended, inter alia, that Malta consider acceding to the two above-mentioned conventions and establishing an effective statelessness determination procedure, as well as ensuring the rights of stateless persons and awareness about statelessness among relevant government institutions.", "2. Relevant Council of Europe instruments", "41. To promote the progressive development of legal principles concerning nationality, as well as their adoption in internal law, and to avoid, as far as possible, cases of statelessness, the Council of Europe drew up the 1997 European Convention on Nationality. One of the principles of this Convention, provided for in Article 4, is that “statelessness shall be avoided”. Article 6 provides that each State Party must facilitate in its internal law the acquisition of its nationality for stateless persons. Article 7, however, specifies that a State Party may not provide in its internal law for the loss of its nationality if the person concerned would thereby become stateless, with the exception of cases of acquisition of the nationality of the State Party by means of fraudulent conduct, false information or concealment of any relevant fact attributable to that person.", "42. This Convention was signed by Malta on 29 October 2003 but has not been ratified.", "43. On 15 September 1999 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (99) 18 on the avoidance and reduction of statelessness. In particular, concerning the avoidance of statelessness as a consequence of loss of nationality, it recommends, in its relevant part, the following:", "“c. In order to avoid, as far as possible, situations of statelessness, a State should not necessarily deprive of its nationality persons who have acquired its nationality by fraudulent conduct, false information or concealment of any relevant fact. To this effect, the gravity of the facts, as well as other relevant circumstances, such as the genuine and effective link of these persons with the state concerned, should be taken into account;”", "3. Relevant EU law and case-law of the Court of Justice of the European Union", "44. Article 20 of the Treaty on the Functioning of the European Union (TFEU) reads as follows.", "“1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.", "2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:", "(a) the right to move and reside freely within the territory of the Member States;", "(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;", "(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;", "(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.", "These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.”", "(a) Judgment of the Court of Justice of the European Union of 2 March 2010 in Rottmann, C-135/08, EU:C:2010:104", "45. Dr Rottmann was born a citizen of Austria. After being accused in Austria of serious fraud in the exercise of his profession, he moved to Germany, where he applied for naturalisation. By acquiring German citizenship, he lost his Austrian citizenship by operation of law. Following information from the Austrian authorities that Dr Rottmann was the subject of an arrest warrant in their country, the German authorities sought to annul his acquisition of German citizenship on the grounds that he had obtained it fraudulently. Such a decision, however, had the effect of rendering him stateless. The referring court wished to know if this was a matter that fell within the scope of EU law, as Dr Rottmann’s statelessness also entailed the loss of EU citizenship. The Court of Justice of the European Union (CJEU) ruled that an EU member State’s decision to deprive an individual of citizenship, in so far as it implied the loss of the status of EU citizen and the deprivation of the attached rights, fell within the ambit of EU law and, therefore, had to be compatible with its principles.", "46. The CJEU concluded that it was legitimate for a member State to revoke naturalisation on account of deception, even when the consequence was that the person lost their EU citizenship, in addition to citizenship of that member State. Such a decision, however, must comply with the principle of proportionality, which, among other things, required a reasonable period of time to be granted in order for the person to recover the citizenship of his or her member State of origin.", "(b) Judgment of the CJEU of 8 March 2011 in Ruiz Zambrano, C-34/09, EU:C:2011:124", "47. Mr and Ms Zambrano, of Colombian nationality, were refused refugee status in Belgium but were not sent back to Colombia on account of the civil war in that country. From 2001, Mr and Ms Zambrano were then registered as resident in Belgium and Mr Zambrano worked there for a certain time, even though he did not hold a work permit. Mr and Ms Zambrano had two children – one born in 2003, the other in 2005 – who acquired Belgian nationality in accordance with the Belgian legislation applicable at that time. The competent authorities refused to accede to Mr and Ms Zambrano’s application to regularise their situation and to take up residence as ascendants of Belgian nationals.", "48. According to the CJEU, Article 20 of the TFEU precluded national measures which had the effect of depriving citizens of the European Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as EU citizens. The CJEU concluded that Article 20 of the TFEU precluded a member State from refusing a work permit and the right of residence within its territory to a third-country national upon whom his minor children, who were nationals and residents of that member State, were dependent, in so far as such decisions deprived those children of the genuine enjoyment of the substance of the rights attaching to the status of citizen of the Union.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "49. The applicant complained that the decision to divest him of his Maltese citizenship had not been made in accordance with the law. It had interfered with his right to respect for his private and family life and exposed him to the risk of being separated from his family. The decision had not been accompanied by the relevant procedural safeguards as required under Article 8 of the Convention and the State had failed to fulfil its positive obligation to protect his rights under that provision. Lastly, the applicant complained that the decision had left him stateless. He thus had to live in a state of uncertainty, where he could not even leave the country for fear of not being let back in. The provision reads as follows.", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "50. The Government contested that argument.", "A. Admissibility", "1. Victim status", "(a) The parties’ submissions", "51. The Government submitted that the applicant could not claim to be a “victim” for the purposes of Article 34 of the Convention. They contended that an applicant could be considered a victim only if the State had already decided to take steps against him, and interference would come about only upon the execution or implementation of that decision. In the present case, despite the lack of any interim measure by the Court, no removal order was awaiting execution or implementation, as no such order had been issued, and no practical steps had been taken by the authorities in order to remove the applicant from Malta. The Government referred to Vijayanathan and Pusparajah v. France (27 August 1992, § 46, Series A no. 241 ‑ B), in which the Court had distinguished the applicants’ case from that of the applicant in Soering v. the United Kingdom (7 July 1989, Series A no. 161), since in the former case no expulsion order had been made in respect of the applicants. They explained that deprivation of Maltese citizenship did not mean that the person so deprived would be removed from Malta. In order for the person to be removed from Malta, a removal order would have to be issued. Such an order had not been issued in the case of the applicant in the present case.", "52. The applicant submitted that he was a victim under Article 34 of the Convention, since the revocation of his Maltese citizenship threatened the very basis of his ability to reside in Malta. He was directly affected by the impugned measure, in line with the Court’s case-law. In this connection, he referred to Groppera Radio AG and Others v. Switzerland (28 March 1990, § 47, Series A no. 173). The applicant submitted that even though a deportation or removal order was not in force, the threat of such an order was imminent. Indeed, the Government had not stated that a deportation or removal order would not be issued and had expressed the view that, following the annulment of his first marriage, “the applicant’s stay in Malta was precarious”. It was probable that no such action had been taken by the authorities only because they had been informed that the case was pending before the Court and that therefore no further steps were to be taken. The applicant submitted that once the Maltese Government had accepted that he could establish his second family in Malta, as he had in fact done, any subsequent curtailment of his status in Malta would directly affect that family life.", "(b) The Court’s assessment", "53. The Court reiterates that the word “victim” in the context of Article 34 of the Convention denotes a person directly affected by the act or omission in issue (see, among many other authorities, Nsona v. the Netherlands, 28 November 1996, § 106, Reports of Judgments and Decisions 1996 ‑ V, and Brumărescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999 ‑ VII). In other words, the person concerned must be directly affected by it or run the risk of being directly affected by it (see, for example, Norris v. Ireland, 26 October 1988, §§ 30 ‑ 31, Series A no. 142, and Otto-Preminger-Institut v. Austria, 20 September 1994, § 39, Series A no. 295 ‑ A). It is not therefore possible to claim to be a “victim” of an act which is deprived, temporarily or permanently, of any legal effect (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 92, ECHR 2007 ‑ I). With reference to the specific category of cases involving the deportation of non-nationals, the Court has consistently held that an applicant cannot claim to be the “victim” of a deportation measure if the measure is not enforceable (see Vijayanathan and Pusparajah, cited above, § 46; see also Pellumbi v. France (dec.), no. 65730/01, 18 January 2005, and Etanji v. France (dec.), no. 60411/00, 1 March 2005). The Court has adopted the same stance in cases where execution of the deportation order has been stayed indefinitely or otherwise deprived of legal effect, and where any decision by the authorities to proceed with deportation can be appealed against before the relevant courts (see Sisojeva and Others, cited above, § 93, with further references to Kalantari v. Germany (striking out), no. 51342/99, §§ 55 ‑ 56, ECHR 2001 ‑ X, and Mehemi v. France (no. 2), no. 53470/99, § 54, ECHR 2003 ‑ IV; see also Andric v. Sweden (dec.), no. 45917/99, 23 February 1999; Benamar and Others v. France (dec.), no. 42216/98, 14 November 2000; A.D. v. Switzerland (dec.), no. 13531/03, 18 January 2005; and Yildiz v. Germany (dec.), no. 40932/02, 13 October 2005).", "54. Regarding the applicant’s victim status in relation to the complaint that his removal from Malta would affect his private and family life, the Court notes that the authorities have not issued a removal order. Indeed, no steps towards such action have been taken at any point since 2007, when the order to revoke his citizenship was issued and was thus enforceable. Although during the intervening period proceedings concerning the applicant’s complaints have been pending before the domestic courts and subsequently before the Court, neither the domestic courts nor the Court have ordered interim measures (capable of giving any legitimacy to the letter sent to the authorities by the applicant’s legal representative – see paragraph 28 above). It follows that the authorities were under no obligation to desist from deporting the applicant, had they intended to do so.", "55. Furthermore, even if such a removal order were to be issued, the applicant may appeal against it to the Immigration Appeals Board (see paragraph 36 above). The Court reiterates that where expulsions are challenged on the basis of alleged interference with a person’s private and family life (unlike complaints concerning Articles 2 and 3), it is not imperative, in order for a remedy to be effective, that it should have automatic suspensive effect (see De Souza Ribeiro v. France [GC], no. 22689/07, § 83, ECHR 2012). However, domestic courts must seriously examine the circumstances and legal arguments in favour of or against a violation of Article 8 of the Convention in the event of the removal order being enforced. Haste in the execution of a removal order may have the effect of rendering the available remedies ineffective in practice and therefore inaccessible (ibid., § 95). At this stage there is no indication that any eventual removal would be executed in a perfunctory manner and with such haste that it would have the effect of rendering the available remedies ineffective in practice and therefore inaccessible (contrast De Souza Ribeiro, cited above, § 96).", "56. Moreover, on a more practical level, it appears that the applicant is currently stateless; thus, as the situation stands to date, it cannot be said that he is under threat of expulsion (see for instance, Okonkwo v. Austria (dec.), no. 35117/97, 22 May 2001) as there is no guarantee that the Egyptian authorities would accept him, nor is it likely that he could be removed to another country. In any event, such arrangements would take a certain amount of time, and in the event of a removal order being issued and steps being taken in respect of its execution, the applicant would still have a possibility of pursuing the relevant remedies.", "57. Thus, at this stage, the applicant cannot claim to be a “victim” of any actual or impending violation of his rights under Article 8 in connection with his potential removal, and the Government’s objection in this respect is upheld.", "58. On the contrary, the Court does not find it appropriate to reach the same conclusion in so far as the applicant complains of the revocation of his Maltese citizenship itself, the order for which has already been made and executed. It follows that in respect of this part of the complaint, the Government’s objection is dismissed.", "2. Significant disadvantage", "59. In their final observations (concerning comments on the applicant’s claims for just satisfaction and further observations) of 22 May 2015, the Government submitted that the applicant’s complaint was inadmissible, for the purposes of Article 35 of the Convention, on account of the fact that he had not suffered a significant disadvantage as a result of the alleged violation of the Convention. Although the applicant had been deprived of his Maltese citizenship, he still lived and worked in Malta. The applicant had not provided any evidence that he could not reacquire his Egyptian citizenship.", "60. The Court reiterates that, according to Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application. The Court notes that when the Government were invited to comment on the admissibility and merits of the application, they did not raise any objection to this effect in their observations of 2 March 2015. The Court finds it regrettable when new objections are raised by the Government at a stage where an applicant has in principle no further opportunity to reply. This is particularly so in the absence of exceptional circumstances which would explain the delay in raising such matters. Furthermore, while the Court may well decide to allow the applicant a right of reply, this would lengthen the procedure to the applicant’s detriment as a result of the Government’s untimely actions. In any event, the Court considers that this objection is to be dismissed for the following reasons.", "61. On the basis of the general principle de minimis non curat praetor, the new criterion of no significant disadvantage hinges on the idea that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed taking account of both the applicant’s subjective perceptions and what is objectively at stake in a particular case (see Korolev v. Russia (dec.), no. 25551/05, ECHR 2010). Thus, the absence of any such disadvantage can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Ionescu v. Romania (dec.), no. 36659/04, § 34, 1 June 2010; Rinck v. France (dec.), no. 18774/09, 19 October 2010; and Kiousi v. Greece (dec.), no. 52036/09, 20 September 2011). Moreover, a violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting pecuniary interests (see Korolev, cited above).", "62. The Court has previously stated that although the right to citizenship is not as such guaranteed by the Convention or its Protocols, it cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual (see Karassev v. Finland (dec.), no. 31414/96, ECHR 1999-II; Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, § 77, ECHR 2002-II; Savoia and Bounegru v. Italy (dec.), no. 8407/05, 11 July 2006; and Genovese v. Malta, no. 53124/09, § 30, 11 October 2011). Furthermore, the private life of an individual is a concept that is wide enough to embrace aspects of a person’s social identity (see Genovese, cited above, § 33).", "63. In the light of the issues raised, the Court does not find it appropriate to dismiss the present complaint with reference to Article 35 § 3 (b) of the Convention. The Government’s objection is therefore dismissed.", "3. Conclusion as to admissibility", "64. In respect of the complaint concerning the applicant’s potential removal from Maltese territory, the Court considers that the applicant cannot claim to be a victim, within the meaning of Article 34 of the Convention, of the alleged violation of his right to respect for his private and family life. It follows that this part of the complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "65. In so far as the complaint concerns the deprivation of citizenship and its consequences, the Court considers that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ observations", "(a) The applicant", "66. The applicant insisted that his reason for marrying his first wife had not been to obtain citizenship by fraud; this was evidenced by the birth of his son and also by a psychologist’s report, in which the applicant’s anxiety at the time when he was having marital problems had been noted. He was of the view that the authorities should not simply have relied on the 1998 judgment, but that the matter required a separate independent assessment. He also argued that he could not be blamed for not having informed the authorities about the annulment of his marriage, since annotations of such annulments were entered on the relevant marriage certificate kept in the records of the Public Registry, which was a government department. Thus, the authorities had been aware of the situation from that very date. Nevertheless, they had acted on the premise that the applicant’s citizenship had remained valid, and had eventually even given his second wife “exempt person status” on that basis.", "67. The applicant submitted that depriving a person of citizenship was more sensitive than restricting eligibility for citizenship, and it could not be left to a State’s discretion. Furthermore, any such decision would have to be accompanied by appropriate safeguards and an opportunity for the individual to defend himself.", "68. The applicant submitted that at the time of the order depriving him of citizenship, namely 2007, he had established both a private and a family life in Malta. He had been working in Malta and had been married to his wife for more than five years and had two children, as well as a genetic bond with a son from the first marriage. In his view, when he had married for the second time, there had been no threat of his citizenship being taken away from him. Thus, it could not be said that his family life had been created at a time when the persons involved were aware that the immigration status of one of them was such that the continuation of that family life within the host State would be precarious from the outset.", "69. The applicant submitted that citizenship was the gateway to several rights, including a right to unrestricted residence; a right to establish a family in Malta; a right to work there, to receive a pension, and so forth. Admitting that he had made no request for any work or residence permits, he submitted that he had no guarantee that he would acquire or be eligible for such permits. He referred to Regulation 12(3) of the Immigration Regulations (Legal Notice 205 of 2004 – see paragraph 37 above). Moreover, such permits would not solve the problem of his statelessness and his limited freedom of movement as a result of his not having a valid passport – a matter which also impinged on his ability to make a living, given his trading business. Nor could the applicant afford to pay the exorbitant fees to acquire Maltese citizenship in accordance with the Individual Investor Programme of the Republic of Malta Regulations, 2014. He further submitted that whilst the Government sold Maltese citizenship to third-country nationals who had little or no connection to Malta, he had been deprived of his citizenship even though he was connected to Malta only.", "70. The applicant submitted that the measure (as well as the proceedings before the committee of inquiry) had not been in accordance with the law. As indicated in the relevant letter (see paragraph 24 above), the deprivation was based on Article 14 § 1 of the Maltese Citizenship Act (hereafter “the Citizenship Act”); however, pursuant to Article 27, the Citizenship Act did not apply to any application for Maltese citizenship lodged before 15 August 1999, and indeed the applicant had applied for citizenship in 1993. In his view, the Citizenship Act as it had stood in 2007 did not apply to his circumstances, nor was there any saving clause stating that situations such as his would continue to be regulated by the Citizenship Act as in force prior to the amendments enacted in 2000.", "71. The applicant submitted that public order was not listed under Article 8 of the Convention, nor had any other legitimate aim been relied on. Although he had been found guilty of injuring his wife, the suspended sentence had played no part in the Minister’s decision.", "72. Furthermore, the applicant submitted that the authorities’ action had been so belated (initiating an investigation five years after the annulment, and taking three years to investigate and take a decision on his situation) that the measure could not be deemed justified or necessary. Such a delay showed that the applicant had not posed a threat – no reasons had been given as to why it had suddenly become necessary to change the state of affairs. Moreover, in the intervening period his ties with Malta had been further strengthened.", "73. The applicant submitted that the Government had failed to protect him from statelessness. This rendered the measure draconian and was disproportionate to the aim pursued.", "74. In the applicant’s view, when weighing the interests of the individual against those of the State, the Court had to consider that when he had founded his second family, the prospects of joint residence were not only extremely high but even certain. The applicant had not maintained any appreciable ties with relatives in Egypt and he had now lived in Malta for over twenty years; he spoke Maltese and was perfectly integrated in Maltese culture and society. The economic consequences of his removal to any other country would be extremely detrimental to him. He also argued that should his children also be deprived of their current Maltese citizenship on the basis of his own citizenship having been revoked, they too would become stateless.", "(b) The Government", "75. The Government submitted that the Convention did not guarantee a right to acquire a particular citizenship and that the issue of whether an applicant had an arguable right to acquire the citizenship of a State must in principle be resolved by reference to the domestic law of that State. They referred to Petropavlovskis v. Latvia (no. 44230/06, § 83, ECHR 2015).", "76. The measure in issue in the present case was in accordance with the law, namely the Citizenship Act, Chapter 188 of the Laws of Malta. The relevant provision at the time was Article 9 of the Citizenship Act, which was identical to Article 14 of the amended Citizenship Act (see “Relevant domestic and international law and practice” above). Contrary to the applicant’s argument (see paragraph 70 above), the Government submitted that Article 27 § 2 of the Citizenship Act as amended in 2000 – a transitory provision – dealt with “applications” for registration which had been lodged before 15 August 1999 and were still pending. In the case of the applicant, citizenship had already been granted before 15 August 1999; thus, when the amendments to the Citizenship Act were enacted, his application had already been processed. Consequently, he could not be considered “an applicant” within the meaning of the domestic provision cited.", "77. Contracting a marriage of convenience was considered to be perpetration of fraud. That had been the basis of the decision in respect of the applicant. Thus, the measure had not been arbitrary: the decision had been taken after the applicant had pleaded before the committee, produced evidence and made submissions – a procedural safeguard to protect him against any arbitrariness. Nor was the deprivation discriminatory: whenever the Department of Citizenship and Expatriate Affairs became aware that citizenship had been obtained by fraud, it took steps to deprive the individuals concerned of Maltese citizenship.", "78. According to the Government, the Minister had deprived the applicant of his Maltese citizenship on the grounds that he had obtained it by fraud, a serious act that was contrary to public order. Thus, the measure was aimed at the protection of public order, which was an intrinsic part of the public interest. Reference was made to the Court’s judgments in Antwi and Others v. Norway (no. 26940/10, § 104, 14 February 2012) and Boujlifa v. France (21 October 1997, § 43, Reports 1997 ‑ VI). In that light, the Minister’s order had been justified and necessary in a democratic society. Furthermore, even though the decision had not been based on this factor, the applicant also had a criminal record, having been found guilty of injuring his own wife.", "79. The Government further argued that the deprivation of the applicant’s Maltese citizenship, which had been implemented immediately, had not adversely affected him since his trading licences had been continuously renewed and he had continued to make use of a Maltese passport. Reference was made to the Court’s findings in, inter alia, Riener v. Bulgaria (no. 46343/99, § 155, 23 May 2006). In the present case (until the time of filing observations), it transpired that the applicant had not been hindered in his movement in and outside Malta. Indeed, he had continued to work in Malta and to reside there with his new family. Thus, in view of the above, there had not been an interference with the applicant’s rights. Also, the Government submitted that the applicant could apply for a work permit which was valid for a period of time and renewable on request, and subsequently obtain a residence permit on that basis. Furthermore, once his immigration status had been regularised, he would be eligible for long-term residence status after five years of legal stay. However, the applicant had not attempted to pursue any of those avenues. Nor had he provided any information as to the possibility of reacquiring Egyptian nationality, or proved that this was impossible. Furthermore, if he feared returning to Egypt, he could have applied for refugee status or humanitarian protection.", "80. In so far as the applicant complained of the State’s positive obligations, the Government submitted that he had to prove the existence of private and family life at the time when the impugned measure had been adopted (they referred to Boujlifa, cited above, § 36). Thus, in the Government’s view, the date to be considered for this purpose was that when the grounds for the deprivation of citizenship had materialised, namely 16 January 1998.", "81. However, the committee conducting inquiries had found that the applicant had had no relationship with his first son. Nor had he, in 1998, had any relationship with the woman who was to become his second wife. Consequently, the applicant could not argue that he had had a “family life” in 1998. As in Adeishvili (Mazmishvili) v. Russia (no. 43553/10, § 82 ‑ 83, 16 October 2014), the applicant’s relationship with his second wife had developed at a time when they were both aware of his precarious position as far as his citizenship was concerned.", "82. The Government considered that the applicant was to blame for not having informed the Department of Citizenship and Expatriate Affairs, at the relevant time, about the judgment annulling his first marriage. It was not for the Government to keep abreast of such developments, which were dealt with by different authorities, and the applicant’s failure to inform the authorities only showed his bad faith. The Government submitted that once the matter had come to the attention of the relevant authorities, they had started investigations. While it was true that the process had encountered some difficulties and thus some delay, this was due to the fact that it related to events that had happened ten years earlier.", "83. Distinguishing between a removal order and deprivation of citizenship, in the absence of any adverse effects on the applicant, the Government were of the view that the Maltese authorities did not have a positive obligation to regularise the applicant’s status when revoking his Maltese citizenship.", "2. The Court’s assessment", "84. The Court observes that old cases concerning loss of citizenship, whether already acquired or born into, were consistently rejected by the Convention organs as incompatible ratione materiae with the provisions of the Convention, in the absence of such a right being guaranteed by the Convention (see, for example, X. v. Austria, no. 5212/71, Commission decision of 5 October 1972, Collection of Decisions 43, p. 69). However, as noted above, in recent years the Court has held that although the right to citizenship is not as such guaranteed by the Convention or its Protocols, it cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual (see references mentioned at paragraph 62 above).", "85. Indeed, most of the cases concerning citizenship brought before the Court since the above-mentioned development in the case-law have concerned applicants claiming the right to acquire citizenship and the denial of recognition of such citizenship (see, for example, Karassev, cited above), as opposed to a loss of citizenship already acquired or born into. Nevertheless, the Court considers that the loss of citizenship already acquired or born into can have the same (and possibly a bigger) impact on a person’s private and family life. It follows that there is no reason to distinguish between the two situations and the same test should therefore apply. Thus, an arbitrary revocation of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of its impact on the private life of the individual. Therefore, in the present case it is necessary to examine whether the decisions of the Maltese authorities disclose such arbitrariness and have such consequences as might raise issues under Article 8 of the Convention.", "86. The Court notes that the decision to deprive the applicant of his citizenship was in accordance with the law, namely Article 14 (previously Article 9) of the Citizenship Act, which provides that", "“the Minister may ... deprive of his Maltese citizenship any citizen of Malta who is such by registration or naturalisation if [the Minister] is satisfied that the registration or certificate of naturalisation was obtained by means of fraud, false representation or the concealment of any material fact”.", "The Court notes that Article 27 § 1 only states that the amendments to the Citizenship Act would not affect the granting or retention of citizenship obtained prior to the enactment of such amendments, and thus it has no bearing on the application of Article 14 (former Article 9), which has not undergone any amendments. The Court further accepts the Government’s argument that the transitory provision in Article 27 § 2 of the Citizenship Act (see paragraph 32 above) does not apply to the applicant, as his application had already been processed and determined. Thus, his citizenship was obtained prior to the amendments to the Citizenship Act enacted in 2000. It follows that the deprivation of citizenship was in accordance with the law.", "87. Moreover, the Court observes that, in accordance with Article 14 § 4 of the Citizenship Act – which was applicable in 2006 when the applicant was informed that an order was to be made to deprive him of his Maltese citizenship – prior to the Minister’s decision, the applicant was informed of the possibility of requesting an inquiry, and in fact proceeded to take such action. Thus, the applicant had the opportunity – of which he availed himself – to defend himself in a procedure which consisted of a number of hearings where he was assisted by a lawyer and where oral and written submissions were made, and evidence, including witness testimony, was produced before the relevant board. He subsequently had the opportunity to challenge that decision before the courts with constitutional jurisdiction affording the relevant guarantees. It follows that the decision depriving the applicant of his citizenship was accompanied by the necessary procedural safeguards.", "88. Although it could be questioned whether in the instant case the authorities acted diligently and swiftly (see, mutatis mutandis, Nunez v. Norway, no. 55597/09, § 82, 28 June 2011, and Borisov v. Lithuania, no. 9958/04, § 112, 14 June 2011), the Court notes that any delay occurring did not disadvantage the applicant, who continued to benefit from the situation (compare Kaftailova v. Latvia (striking out) [GC], no. 59643/00, § 53, 7 December 2007).", "89. The Court therefore concludes that the decision of the Maltese authorities to deprive the applicant of his Maltese citizenship was not arbitrary. Furthermore, the applicant was aware that when his marriage was annulled his citizenship could be revoked at any time by the Minister, and thus that he was in a precarious situation. Moreover, the Court cannot ignore the fact that the situation complained of came about as a result of the applicant’s fraudulent behaviour (see paragraphs 14 and 24 above) and that any consequences complained of are to a large extent a result of his own choices and actions (compare Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 49, 7 December 2007).", "90. As to the consequences of the revocation of the applicant’s Maltese citizenship, the Court notes that, as held above (see paragraph 56 above), the applicant is not threatened with expulsion from Malta. Importantly, although the applicant’s Russian wife has lost her exempt person status, the applicant’s sons VR and VL have not lost their Maltese citizenship, nor have there been any attempts to that effect by the authorities in the nine years since the applicant was deprived of his Maltese citizenship. Furthermore, as admitted by the applicant himself, to date he has been able to pursue his business and continues to reside in Malta.", "91. The Court reiterates that neither Article 8 nor any other provision of the Convention can be construed as guaranteeing, as such, the right to a particular type of residence permit (see Kaftailova, cited above, § 51). If it allows the holder to reside within the territory of the host country and to exercise freely there the right to respect for his or her private and family life, the granting of such a permit represents in principle a sufficient measure to meet the requirements of that provision. In such cases, the Court is not empowered to rule on whether the individual concerned should be granted one particular legal status rather than another, that choice being a matter for the domestic authorities alone (see Sisojeva and Others, cited above, § 91; Aristimuño Mendizabal v. France, no. 51431/99, § 66, 17 January 2006; Dremlyuga v. Latvia (dec.), no. 66729/01, 29 April 2003; and Gribenko v. Latvia (dec.), no. 76878/01, 15 May 2003). In this connection, the Court notes that various possibilities appear to be open to the applicant (see paragraphs 37 and 79 above), such as applying for a work permit, and subsequently a residence permit, which could eventually again make him eligible for citizenship. However, the applicant has taken no such steps, which could have prevented any adverse impact on his private and family life (compare Savoia and Bounegru, cited above), and no valid explanation has been given for his inaction. The Court notes that the only alleged obstacle referred to by the applicant is a legal provision which is not yet in force (see paragraphs 37 and 39 above).", "92. Similarly, in connection with the applicant’s claim that he is currently stateless, the Court notes that although, according to a letter by the Consul of the embassy of the Arab Republic of Egypt, the applicant’s request to renounce his Egyptian nationality was approved and his Egyptian passport withdrawn (see paragraph 10 above), he has not provided the Court with any official document (such as a presidential decree, which appears to be issued in such circumstances) confirming such renunciation. Nor has the applicant provided any information as to the possibilities of reacquiring Egyptian nationality (in the event that he has truly renounced that nationality). In any event, the fact that a foreigner has renounced his or her nationality of a State does not mean in principle that another State has the obligation to regularise his or her stay in the country (see, for instance, the case of Romanians who renounced their nationality and wanted to remain in Germany, in Dragan and Others v. Germany (dec.), no. 33743/03, 7 October 2004).", "93. As to the applicant’s limited freedom of movement, which would more appropriately be examined under Article 2 of Protocol No. 4 to the Convention, the Court notes that this complaint was not brought before the domestic authorities, even though the applicant was meant to return his passport in 2007, when the decision to revoke his citizenship was issued. The fact that he failed to submit his passport to the authorities and continued to reap its benefits until 2014, when his passport expired, does not exempt the applicant from the obligation to exhaust relevant domestic remedies. The Court cannot but note a pattern of inaction on the part of the applicant.", "94. Given the above considerations, an assessment of the State’s negative obligations under Article 8 of the Convention is not warranted in the present case. Nor does the Court need to assess the State’s positive obligations, given that as the situation stands the applicant runs no risk of being deported (see paragraphs 54 and 56 above).", "95. Bearing in mind the situation as it currently stands, the Court finds that there has been no violation of Article 8 of the Convention." ]

[ "2. The applicant was born in 1977 in Tajikistan. In 2007 he moved to Russia, where he was arrested in 2018 and placed in a temporary detention centre for foreigners for his failure to comply with domestic authorities ’ decision prescribing him to leave the country. He was represented by Mr Y. Mylnikov, a lawyer practising in Velikiy Novgorod.", "3. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Government to the European Court of Human Rights.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "Background", "5. The applicant was born in Tajikistan, which at the time was one of the Soviet Republics. He had three brothers and two sisters.", "6. In 2001 he married Ms M., who gave birth to their two children, A. and D. They were born in 2001 and 2003 respectively.", "7. On an unspecified date in 2007 the applicant, together with his wife and children, went to Russia and settled there.", "8. On 7 April 2008 he received a residence permit for a term of three years.", "9. On 16 May 2008 he applied to the Novgorod Regional Department of the Federal Migration Service for Russian citizenship under the simplified naturalisation procedure applicable to former citizens of the USSR. In the section of the application form entitled “Close relatives (husband (wife), parents, children, brothers and sisters)” he mentioned his wife, parents, children and a brother. According to the applicant, he did not mention his two other brothers and two sisters because a duty officer had told him that it was not necessary to list all of his relatives.", "10. On 15 July 2008 the applicant was granted Russian citizenship.", "11. On unspecified dates later the Novgorod Regional Department of the Federal Migration Service granted Russian citizenship to his wife and two children.", "12. The applicant and his wife had two more children, N., born in 2009, and S., born in 2016.", "13. The applicant worked in the agricultural sector and owned the apartment where he lived with his family.", "Annulment of the applicant ’ s Russian citizenship, his passports and the related court proceedingsProceedings “regarding the establishment of a legal fact”", "Proceedings “regarding the establishment of a legal fact”", "Proceedings “regarding the establishment of a legal fact”", "14. On 28 September 2017 the Novgorod Regional Department of the Ministry of the Interior (“the DMI”, which replaced the Federal Migration Service) applied to the Novgorod District Court of the Novgorod Region (“the District Court”) to have it established as a legal fact that the applicant had submitted false information about his siblings when applying for Russian citizenship in 2008. Such a finding was required for the annulment of the applicant ’ s Russian citizenship.", "15. On 20 November 2017 the District Court allowed the application on the grounds that the omission was not disputed by the applicant. The court dismissed his arguments that the officer on duty had advised him not to list all of his relatives; that the missing information was not important; that he did not intend to mislead the authorities; and that he had strong ties with Russia. The first argument was found to be unsubstantiated by evidence and the others were considered to be irrelevant to the subject matter of the case.", "16. The applicant challenged that decision by way of an appeal and cassation appeals before the Novgorod Regional Court (“the Regional Court”) and the Supreme Court of Russia. Those courts dismissed the appeals on 14 March, 1 June and 17 August 2018 respectively, endorsing the District Court ’ s reasoning.", "Annulment of the applicant ’ s Russian citizenship and passports", "17. On 5 April 2018, referring to the finding of the domestic courts that the applicant had submitted false (incomplete) information about his relatives, the DMI annulled his Russian citizenship, his “internal passport” (a citizen ’ s identity document for use in Russia) and “travel passport” (a citizen ’ s identity document for use abroad). As a result, the applicant was left without any valid identity documents.", "Proceedings before the Constitutional Court", "18. On an unspecified date in 2018 the applicant challenged the compatibility of section 22 of the Russian Citizenship Act (see paragraph 33 below) with the Russian Constitution. He claimed that it arbitrarily provided for the annulment of Russian citizenship without taking into account a person ’ s individual circumstances. The applicant further noted that Russian law did not stipulate any time-limit for the annulment of citizenship.", "19. On 15 January 2019 the Constitutional Court refused to examine his complaint on the merits. It held that the application of the impugned section of the Russian Citizenship Act could only result in the automatic annulment of Russian citizenship if it had been established that a person did not meet the conditions required for obtaining citizenship. It also noted that the wording of the impugned section did not absolve the authorities from taking into account surrounding circumstances, such as the time elapsed since the decision granting Russian citizenship. According to the court, to hold otherwise would be contrary to the principles of the rule of law and justice or the requirements of necessary and proportionate interference with human rights. Lastly, the court mentioned that the decision to annul a person ’ s citizenship could be challenged in court and was thus subject to its scrutiny.", "entry ban", "20. On 12 April 2018 the Novgorod Regional Department of the Federal Security Service drew up a decision imposing on the applicant a thirty ‑ five ‑ year entry ban preventing him from entering Russia until April 2053. It was stated that he posed a threat to national security and public order. He was informed of that decision on 14 June 2018.", "21. On an unspecified date he challenged the entry ban before the Regional Court, which dismissed his appeal on 29 November 2018. The court found that the entry ban had been issued by the competent authority on the grounds that he posed a threat to Russia ’ s national security. Without disclosing the information underlying that conclusion, the court held that the impugned measure was appropriate in the applicant ’ s situation. The court noted that he could settle in any country, including Tajikistan. There was no risk to his life there. His family could follow him or stay in Russia. If that happened, he could support them from abroad.", "22. The applicant appealed against the Regional Court ’ s decision to the Supreme Court of Russia. The appeal was dismissed on 17 April 2019 on the grounds that the Regional Court when examining the case had not breached substantive or procedural rules of domestic law in a manner that could affect the outcome of the proceedings.", "Administrative removal", "23. On 13 August 2018 the DMI informed the applicant of his obligation to leave Russian territory before 17 August 2018 given the entry ban imposed on him by the Federal Security Service. He did not comply with the order.", "24. On 29 November 2018 a DMI officer drew up an administrative offence report in respect of the applicant for breaching the rules governing the stay of foreign nationals in Russia, specifically for his failure to comply with the DMI ’ s order to leave the country. The case was transferred to the District Court for examination on the merits.", "25. On the same day, 29 November 2018, that court, taking into account the annulment of the applicant ’ s Russian citizenship, the imposition of the entry ban on him and his failure to comply with the order to leave Russia, found him guilty of an administrative offence under Article 18.8 § 1.1 of the Code of Administrative Offences (“the CAO”), namely “a breach by a foreigner or stateless person of the rules for entry into Russia or staying in the country”. It imposed a fine on him in the amount of RUB 2,000 (EUR 29) and ordered his forcible administrative removal from Russia.", "26. The court imposed the minimum fine provided for by domestic law because the applicant had never committed other administrative offences and had dependent minor children. It did not however see any circumstances which would prevent it from applying administrative removal as a sanction. The court dismissed the applicant ’ s argument concerning the adverse effect of the removal on his family situation, stating that a foreigner could not be exempt from compliance with Russian law on the grounds that his relatives were Russian nationals.", "27. The applicant was immediately placed in a temporary detention centre for foreigners pending his administrative removal. He appealed against the court ’ s decision, arguing that his removal would be in breach of Articles 3 and 8 of the Convention.", "28. On 11 December 2018 the Novgorod Regional Court upheld the decision in question. It stated that there was no evidence that the applicant ’ s removal from Russia would be in breach of Article 3 of the Convention. It also held that Article 8 of the Convention did not prevent States from controlling the entry and stay of foreigners in their territory. Furthermore, according to the court, that Article did not impose on the State an obligation to respect the choice of residence of spouses or to allow family reunification in its territory.", "interim measures and stay of removal", "29. On 10 December 2018 the Court granted the applicant ’ s request for interim measures under Rule 39 of the Rules of Court in connection with his complaints under Articles 3 and 8 and indicated to the Russian Government not to remove him to Tajikistan for the duration of the proceedings before the Court.", "30. On 19 December 2018 the District Court ordered that the proceedings concerning the applicant ’ s removal be stayed for the duration of the proceedings before the Court. The applicant continued to be detained in custody. On unspecified dates he appealed against his detention.", "31. On 21 December 2018 and on 22 May 2019 the Regional Court and the Supreme Court of Russia respectively dismissed the applicant ’ s appeals.", "32. On an unspecified date in 2019 the applicant challenged the lawfulness of his continued detention in custody, but on 27 September 2019 the District Court declared that it was lawful." ]

[ "RELEVANT LEGAL FRAMEWORK and practice", "Legal frameworkRussian Citizenship Act (no. 62-FZ of 31 May 2002", "Russian Citizenship Act (no. 62-FZ of 31 May 2002", "Russian Citizenship Act (no. 62-FZ of 31 May 2002", "33. Section 22 of the Act in its relevant part reads as follows:", "“1. A decision granting Russian citizenship ... shall be annulled if it is established that it has been taken on the basis of falsified documents or false information knowingly submitted by the applicant, or if the applicant refuses to take the oath.", "2. The submission of falsified documents or knowingly false information must be established by a court...”", "Regulation on the Examination of Issues Related to Citizenship of the Russian Federation (adopted by Presidential Decree no. 1325 of 14 November 2002)", "34. Section 54 of the Regulation, as in force at the material time, specified the procedure for annulment of a decision on Russian citizenship. The relevant part it reads as follows:", "“... The form of the annulment decision ( заключение об отмене решения по вопросам гражданства Российской Федерации ) shall comply with the form approved by the Ministry of the Interior of the Russian Federation or by the Ministry of Foreign Affairs of the Russian Federation. It must contain information about the legal basis for the [impugned decision on Russian citizenship]; information about the court ’ s decision establishing a legal fact of the use of falsified documents or false information knowingly submitted by the applicant to acquire or terminate his or her Russian citizenship; a description of the circumstances established by a court; and reference to the relevant section of the Russian Citizenship Act which serves as a legal basis for the annulment of a previously taken decision on Russian citizenship.”", "35. Presidential Decree no. 398 of 17 June 2020 amended section 54 of the Regulation. It provided that a decision to annul citizenship had to be reasoned and had to describe the circumstances which had been taken into consideration by the competent authority. The relevant part of the amended provision in its relevant part reads as follows:", "“... [The annulment decision] ... shall be reasoned. It must contain information about the legal basis for the [impugned decision on Russian citizenship], as well as information about a legal basis for the annulment of the decision on Russian citizenship accompanied by a description of the circumstances which led to its adoption.”", "Other material", "36. For a summary of domestic provisions concerning residence permits for foreign nationals, administrative removal of foreign nationals and refusal of entry into Russian Federation see Liu v. Russia (no. 2) ( no. 29157/09, §§ 45-52, 26 July 2011 ). For a summary of domestic provisions regarding Russian citizenship, Russian passports, the Federal Migration Service and administrative liability for certain offences see Alpeyeva and Dzhalagoniya v. Russia (nos. 7549/09 and 33330/11, §§ 56, 59, 62-64 and 70-72, 12 June 2018 ).", "Practice by the Russian Constitutional Court", "37. In its inadmissibility decision of 21 April 2011 (no. 554-O-O) the Constitutional Court dismissed a complaint lodged by a person, who claimed that section 22 of the Russian Citizenship Act was incompatible with the Russian Constitution. The court concluded that the impugned provision was not arbitrary because it was only applicable in cases where individuals did not satisfy the conditions required for obtaining Russian citizenship.", "38. On 25 October 2016 the Constitutional Court by other inadmissibility decision dismissed a similar complaint lodged by a person, who was stripped of Russian citizenship for failing to mention his two minor children in his application for Russian citizenship. The court repeated the arguments used in its decision of 21 April 2011.", "39. On 15 January, 12 and 28 February 2019 the Constitutional Court in the same manner dismissed several more similar complaints, including that of the applicant (see paragraphs 18 and 19 above). In addition to its previous reasoning, the court stated that the competent authorities should take into account surrounding circumstances, such as the time elapsed since the decision granting Russian citizenship for their decision to comply with the requirements of necessary and proportionate interference with human rights.", "Council of Europe documentsThe European Convention on Nationality", "The European Convention on Nationality", "The European Convention on Nationality", "40. The principal Council of Europe document concerning nationality is the European Convention on Nationality (ETS No. 166), which was adopted on 6 November 1997 and came into force on 1 March 2000. It has been ratified by twenty-one member States of the Council of Europe. Russia signed this Convention on 6 November 1997 but has not ratified it.", "41. Article 7 of that Convention (“Loss of nationality ex lege or at the initiative of a State Party”) in the relevant part read as follows:", "“1. A State Party may not provide in its internal law for the loss of its nationality ex lege or at the initiative of the State Party except in the following cases:", "...", "b) acquisition of the nationality of the State Party by means of fraudulent conduct, false information or concealment of any relevant fact attributable to the applicant; ...”", "Explanatory Report to the European Convention on Nationality", "42. The Explanatory report to the European Convention on Nationality in the relevant part reads as follows:", "“58. Article 7 consists of an exhaustive list of cases where nationality may be lost automatically by operation of law ( ex lege ) or at the initiative of a State Party. In these limited cases, and subject to certain conditions, a State Party may withdraw its nationality. The provision is formulated in a negative way in order to emphasise that the automatic loss of nationality or a loss of nationality at the initiative of a State Party cannot take place unless it concerns one of the cases provided for under this article. However, a State Party may allow persons to retain its nationality even in such cases. Article 7 does not refer to cases in which there have been administrative errors which are not considered in the country in question to constitute cases of loss of nationality.", "...", "61. Fraudulent conduct, false information or concealment of any relevant fact has to be the result of a deliberate act or omission by the applicant which was a significant factor in the acquisition of nationality. For example, if a person acquires the nationality of the State Party on condition that the nationality of origin would subsequently be renounced and the person voluntarily did not do so, the State Party would be entitled to provide for the loss of its nationality. Moreover, for the purpose of this Convention, “concealment of any relevant fact” means concealment of a relevant condition which would prevent the acquisition of nationality by the person concerned (such as bigamy). “Relevant” in this context refers to facts (such as concealment of another nationality, or concealment of a conviction for a serious offence) which, had they been known before the nationality was granted, would have resulted in a decision refusing to grant such nationality.", "62. The wording of this sub-paragraph is also intended to cover the acquisition of nationality by false pretences (false or incomplete information or other deceitful action, notably by means of non-authentic or untrue certificates), threats, bribery and other similar dishonest actions.", "63 In cases where the acquisition of nationality has been the result of the improper conduct specified in sub-paragraph b, States are free either to revoke the nationality (loss) or to consider that the person never acquired their nationality (void ab initio).”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "43. The applicant complained that the decisions to annul his Russian citizenship and remove him from Russian territory had amounted to a violation of Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Admissibility", "44. The parties did not comment on the admissibility of the complaint.", "45. The Court notes that it is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "Merits", "The parties ’ submissions", "(a) The Applicant", "46. The applicant stated that the domestic law was unforeseeable in its application, because it did not provide for the annulment of a decision on citizenship for submitting incomplete information. That measure could only be applied if the information submitted was knowingly false.", "47. He also stated that the interference with his rights had not been necessary in a democratic society owing to the authorities ’ failure to duly take into account his family situation or explain their finding that he posed a threat to national security.", "(b) The Government", "48. The Government submitted that there had been an interference with the applicant ’ s rights under Article 8 of the Convention, which had fully satisfied the requirements of its second paragraph. It had pursued the legitimate aim of guaranteeing national security; it had been lawful and proportionate to that aim.", "49. According to the Government, the “quality of law” requirement had not been breached in the present case. The applicable domestic law stipulated a person ’ s duty to provide exhaustive information related to his application for Russian citizenship in a clear and foreseeable manner. The legislative rules did not provide the authorities with any discretion prescribing that in such a situation citizenship had to be annulled in any event.", "50. Furthermore, the Government stated that the applicant ’ s refusal to leave Russia of his own initiative had shown his lack of respect for Russian law. That fact, together with the threat which he posed to national security, warranted the necessity for his removal from Russia. The reasons underlying the applicant ’ s entry ban had been carefully examined by the domestic courts in adversarial proceedings.", "51. Lastly, the Government submitted that applicant ’ s family situation and his ties with Russia and Tajikistan had been duly taken into account and assessed by the domestic courts in the proceedings concerning his administrative removal.", "The Court ’ s assessmentGeneral principles", "General principles", "General principles", "52. The Court reiterates that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which encompasses, inter alia, the right to establish and develop relationships with other human beings (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251 ‑ B ), the right to “personal development” (see Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR 2001 ‑ I ) and the right to self ‑ determination (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III ).", "53. In the case of Ramadan v. Malta, (no. 76136/12, § 84, 21 June 2016) the Court held that although the right to citizenship is not as such guaranteed by the Convention or its Protocols, it cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual. To establish whether “an issue” arose under Article 8 of the Convention the Court assessed whether the revocation of the citizenship was “arbitrary” and the “consequences” of revocation for the applicant (see §§ 85, 90 and 91 ibid). In the case of K2 v. the United Kingdom (( dec. ), no. 42387/13, §§ 52-64 7 February 2017), which followed, the Court accepted that the revocation of citizenship amounted to an interference and applied the two-steps test to determine whether there has been a breach of Article 8 of the Convention. Subsequently, in the case of Alpeyeva and Dzhalagoniya (cited above, §§ 110 ‑ 27) the Court firstly applied the “consequences” criteria to determine if there had been an interference with the applicant ’ s rights and then used the “arbitrariness” test to determine if there had been a breach of Article 8 of the Convention. That approach was confirmed in the case of Ahmadov v. Azerbaijan (no. 32538/10, §§ 46-55, 30 January 2020). In the case of Ghoumid and Others v. France (no. 52273/16 and 4 others, §§ 43-44, 25 June 2020) the Court held that nationality is an element of a person ’ s identity. To establish whether there had been a violation of Article 8 of the Convention the Court examined as to whether the revocation of the applicant ’ s nationality had been arbitrary. Then, it assessed the consequences of that measure for the applicant.", "54. In determining arbitrariness, the Court should examine whether the impugned measure was in accordance with the law; whether it was accompanied by the necessary procedural safeguards, including whether the person deprived of citizenship was allowed the opportunity to challenge the decision before courts affording the relevant guarantees; and whether the authorities acted diligently and swiftly (see Ramadan, cited above, §§ 86 ‑ 89; K2, cited above, § 50; Alpeyeva and Dzhalagoniya, cited above, § 109; and Ahmadov, cited above, § 44).", "55. The Court also reiterates that the States are entitled to control the entry and residence of aliens on their territories (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, § 67, 28 May 1985, Series A no. 94, and Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI). The Convention does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuance of their task of maintaining public order, Contracting States have the power to expel, for example, an alien convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be in accordance with the law, pursue the legitimate aim and be necessary in a democratic society (see Slivenko v. Latvia [GC], no. 48321/99, § 113, ECHR 2003-X; Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006‑XII; De Souza Ribeiro v. France [GC], no. 22689/07, § 77, ECHR 2012; Mehemi v. France, 26 September 1997, § 34, Reports 1997-VI; Dalia v. France, 19 February 1998, § 52, Reports 1998-I; and Boultif v. Switzerland, no. 54273/00, § 46, ECHR 2001 ‑ IX ).", "56. Where immigration is concerned, Article 8 cannot be considered as imposing a general obligation on a State to respect the choice of married couples of the country of their matrimonial residence and to authorise family reunion on its territory (see Gül v. Switzerland, 19 February 1996, § 38, Reports 1996 ‑ I). However, the removal of a person from a country where close family members are living may amount to an infringement of the right to respect for family life, as guaranteed by Article 8 § 1 of the Convention (see Boultif, cited above, § 39). Where children are involved, their best interests must be taken into account and national decision-making bodies have a duty to assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by it (see Jeunesse v. the Netherlands [GC], no. 12738/10, § 109, 3 October 2014, and Zezev v. Russia, no. 47781/10, § 34, 12 June 2018 ).", "Application of the general principles", "57. Since the annulment of the applicant ’ s Russian citizenship did not automatically result in the decision to forcibly remove him from Russian territory, and since those issues were examined within separate sets of proceedings, the Court will examine those issues also separately.", "(a) Annulment of citizenship", "58. Having noted the existence of various approaches to the examination of the issue (see paragraph 53 above), the Court will follow the consequence-based approach in determining whether the annulment of the applicant ’ s citizenship constituted an interference with his rights under Article 8 of the Convention (see, mutatis mutandis, Denisov v. Ukraine [GC], no. 76639/11, §§ 107-09 and 118-34, 25 September 2018). It will examine: ( i ) what the consequences of the impugned measure were for the applicant and then (ii) whether the measure in question was arbitrary (the same methodology was used in the recent case of Ahmadov (cited above, § 43, 46 and 54)).", "(i) Consequences for the applicant", "59. Firstly, the decision to annul the applicant ’ s Russian citizenship deprived him of any legal status in Russia.", "60. Secondly, he was left without any valid identity documents. In Smirnova v. Russia (nos. 46133/99 and 48183/99, § 97, ECHR 2003 ‑ IX (extracts)), the Court found that Russian citizens had to prove their identity unusually often in their everyday life, even when performing such mundane tasks as exchanging currency or buying train tickets, and that the internal passport was also required for more crucial needs, such as finding employment or receiving medical care. In Alpeyeva and Dzhalagoniya (cited above, §§ 70 and 114), the Court also noted that failure to possess a valid identity document was punishable by a fine under Article 19.15 of the CAO. The deprivation of passports in those cases had therefore amounted to interferences with the applicants ’ private lives. The annulment of the applicant ’ s passports in the instant case had the same effect.", "61. Furthermore, the annulment of the applicant ’ s citizenship was a precondition for the imposition of the entry ban on him and the decision to remove him from Russian territory (see paragraphs 20 and 25 above) (contrast Ramadan v. Malta, cited above, §§ 20, 26, 87-89, 21 June 2016).", "62. The annulment of the applicant ’ s Russian citizenship therefore amounted to an interference with the rights enshrined in Article 8.", "(ii) Whether the measure was arbitrary", "63. In determining arbitrariness, the Court should examine whether the impugned measure was in accordance with the law; whether it was accompanied by the necessary procedural safeguards, including whether the person deprived of citizenship was allowed the opportunity to challenge the decision before courts affording the relevant guarantees; and whether the authorities acted diligently and swiftly (see Ramadan, cited above, §§ 86 ‑ 89; K2, cited above § 50; Alpeyeva and Dzhalagoniya, cited above, § 109; and Ahmadov, cited above, § 44; see paragraph 54 above).", "64. The expression “in accordance with the law” requires that the measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see Slivenko, cited above, § 100, and Kurić and Others v. Slovenia [GC], no. 26828/06, § 341, ECHR 2012 (extracts)). The law must indicate the scope of discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see Amann v. Switzerland [GC], no. 27798/95, ECHR 2000-II, §§ 55 and 56; Rotaru v. Romania [GC], no. 28341/95, ECHR 2000-V, §§ 55-63; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, ECHR 2000-XI; and Al- Nashif v. Bulgaria, no. 50963/99, § 119, 20 June 2002).", "65. Having regard to the above and to the general principles cited in paragraphs 53 - 54 above, the Court observes that the revocation or annulment of citizenship as such is not incompatible with the Convention. To assess whether Article 8 has been breached in the present case, the Court will examine the lawfulness of the impugned measure, accompanying procedural guarantees and the manner in which the domestic authorities acted.", "66. The Court is ready to accept that the annulment of the applicant ’ s Russian citizenship had its basis in the provisions of the Russian Citizenship Act and the Regulation on the Examination of Issues Related to Citizenship of the Russian Federation (see paragraphs 33 and 34 above). The Court is not satisfied by the clarity of the relevant provisions, or by the procedural safeguards of the domestic law as in force at the material time.", "67. The Court notes that to meet the requirements of the Convention, a law should be formulated in clear terms. If a person ’ s citizenship may be annulled or revoked for submitting false information or concealing information by that person, the law should specify the nature of that information (see the concept of “relevant facts” in the European Convention on Nationality and in the Explanatory Report to it cited in paragraphs 40 - 42 above; compare the Constitutional Court ’ s practice cited in paragraphs 37 ‑ 39 above).", "68. Whilst conferring on the migration authorities the right to annul Russian citizenship, the Regulation on the Examination of Issues Related to Citizenship of the Russian Federation as in force at the material time (see paragraphs 33 and 34 above) did not require those authorities to give a reasoned decision specifying the factual grounds on which it had been taken, like the surrounding circumstances, such as the nature of the missing information, the reason for not submitting it to the authorities, the time elapsed since obtaining citizenship, the strength of the ties which the person concerned had with a country, his or her family situation or other important factors. Especially, they were not required to explain why the failure by the applicant to indicate the full number of his siblings had been relevant for obtaining Russian citizenship. It was not explained whether the migration authorities could have refused to grant the applicant Russian citizenship if the facts about his siblings had been known by them (compare the European Convention on Nationality and the Explanatory Report cited in paragraphs 40 - 42 above as well as the case-law of the Constitutional Court in paragraphs 37 ‑ 39 above). The migration authority and the District Court dismissed the applicant ’ s argument that the missing information was not important for obtaining Russian citizenship as irrelevant. That finding was not overruled by the Regional or Supreme Courts (see paragraph 16 above).", "69. According to the Government, after it had been established that the information submitted by the applicant was incomplete, the authorities had no other choice but to annul the decision granting him Russian citizenship, irrespective of the time elapsed since the obtaining of citizenship, the strength of the ties which the person concerned had with Russia, his or her family situation or other important factors (see paragraph 49 above). It has not been shown that the national courts had to consider the aforementioned factors either in the proceedings “regarding the establishment of a legal fact” or in the proceedings concerning the annulment of Russian citizenship. In the applicant ’ s case, the District Court considered that the argument about his strong ties with Russia was irrelevant.", "70. It follows that the legal framework as in force at the material time fostered excessively formalistic approach to the annulment of Russian citizenship and failed to give the individual adequate protection against arbitrary interference. The subsequent improvement of the applicable legislation cannot change that conclusion, because the amendments had no effect on the applicant ’ s situation.", "(iii) Conclusion", "71. In the light of the above, the Court cannot accept that the annulment of the applicant ’ s Russian citizenship satisfied the requirements of Article 8 of the Convention. The Government did not demonstrate why the applicant ’ s failure to submit information about some of his siblings was of such gravity to justify deprivation of Russian citizenship several years after the applicant had obtained it. In the absence of balancing exercise which domestic authorities were expected to perform, the impugned measure appears to be grossly disproportionate to the applicant ’ s omission. The Court therefore concludes that there has been a violation of Article 8 of the Convention on account of the annulment of the applicant ’ s Russian citizenship.", "(b) Expulsion of the applicant from Russian territory", "72. The decision to remove the applicant from the country amounted to an “interference” with his right to respect for his family life.", "73. That interference was in accordance with the law, namely Article 18. 8 of the CAO. Administrative removal was a subsidiary penalty for breaching immigration rules. The applicant was found liable owing to his failure to comply with the DMI ’ s order to leave the country following the thirty-five-year entry ban imposed by the Federal Security Service on the grounds that he posed a threat to national security (see paragraphs 20, 23 and 25 above).", "74. In these circumstances, and in the light of the parties ’ submissions, the Court has to take into account the proceedings concerning the imposition of the entry ban on the applicant, which were a prerequisite for the decision to remove him from Russia.", "75. The Government argued that the applicant ’ s removal and the entry ban had pursued the legitimate aim of protecting public safety or order. However, neither they nor the domestic courts outlined the basis for the security services ’ allegations against the applicant (contrast Regner v. the Czech Republic [GC], no. 35289/11, §§ 156 ‑ 57, 19 September 2017; Liu v. Russia (no. 2) ( no. 29157/09, § 75, 26 July 2011; Amie and Others v. Bulgaria, no. 58149/08, §§ 12-13 and 98, 12 February 2013; and Zezev, cited above, § 39).", "76. Even if the aim pursued by the applicant ’ s exclusion from Russian territory was legitimate, the Court cannot conclude that the impugned interference was proportionate and therefore necessary in a democratic society. The domestic proceedings concerning the entry ban were focused on the issue of whether the Federal Security Service had issued it within its competence. No independent review of whether its conclusion had a reasonable basis in fact was carried out by the court. It does not appear that a critical aspect of the case – whether the Federal Security Service had been able to demonstrate the existence of specific facts serving as a basis for its assessment that the applicant presented a national security risk – was examined in a meaningful manner (see paragraph 21 above; contrast Regner, cited above, § 154). The national courts confined themselves to a purely formal examination of the decision concerning the applicant ’ s thirty ‑ five-year exclusion from Russia (see, for similar reasoning, Liu (no. 2), cited above, § 89, and Kamenov v. Russia, no. 17570/15, § 36, 7 March 2017).", "77. Furthermore, neither in the proceedings concerning the ban on entering Russia nor in the proceedings concerning the applicant ’ s administrative removal did the domestic courts duly balance the interests at stake, taking into account the general principles established by the Court (see references in paragraph 52 above). In particular, the courts did not take into account: ( i ) the length of the applicant ’ s stay in Russia, (ii) the solidity of his professional, social, cultural and family ties with the country, (iii) the difficulties which he and his family were likely to encounter after the applicant ’ s removal from Russia and the best interests and (iv) well-being of his children (see Jeunesse, cited above, §§ 118 and 120 ). The mere reference to the applicant ’ s family ’ s ability to follow him or stay in Russia and receive financial support from him abroad (see paragraphs 21 and 28 above) is clearly insufficient justification for the serious issue which was at stake.", "78. Overall, in those two sets of the proceedings it was not convincingly established that the threat which the applicant allegedly posed to national security outweighed the fact that he had been living in Russia for a considerable period of time in a household with a Russian national, with whom he had four children, two of whom had been born in Russia. This is particularly relevant given that during his stay in Russia the applicant had not committed any offences.", "79. Accordingly, there has been a violation of Article 8 of the Convention on account of the decision to remove the applicant from the country.", "80. In the light of the above conclusion, the Court considers that it is not necessary to examine as to whether the imposition of the entry ban on the applicant satisfied the requirements of Article 8 of the Convention.", "other alleged violations of the convention", "81. On 23 September 2019 the applicant submitted additional complaint under Article 6 of the Convention. Having regard to all the material in its possession, and in so far as this complaint falls within the Court ’ s competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. This part of the application must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "RULE 39 OF THE RULES OF COURT", "82. The Court reiterates that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if referral of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.", "83. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see paragraph 29 above) should remain in force until the present judgment becomes final or until the Court takes a further decision in this connection (see, mutatis mutandis, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 10, ECHR 2010, and Nunez v. Norway, no. 55597/09, § 4, 28 June 2011 ).", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "84. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "DamagePecuniary damage", "Pecuniary damage", "Pecuniary damage", "85. The applicant submitted that following the proceedings concerning the administrative offence under Article 18.8 of the CAO he had paid the fine in the amount of EUR 29 (see paragraph 25 above). He also stated that on 26 September 2019 the Regional Court had ordered him to pay EUR 133 for the costs and expenses of the proceedings in which he had challenged the entry ban. Lastly, he claimed EUR 148 for the travel expenses incurred by his wife to visit him in detention and EUR 190 for his medical expenses. In total, he claimed EUR 500 in respect of pecuniary damage.", "86. The Government contested the applicant ’ s claim. They stated that his obligation to pay the fine and cover the costs and expenses incurred by the national authorities in the domestic proceedings was not directly linked to the alleged violation. A similar argument was used against his claim for medical expenses, which, according to the Government, related to chronic illnesses he had developed before his detention.", "87. The Court does not discern any causal link between the violation found and the claim for travel and medical expenses. It therefore dismisses that part of the claim. On the other hand, it decides to grant the remainder of the claim, awarding the applicant EUR 162 in respect of pecuniary damage, plus any tax that may be chargeable (compare Bogomolova v. Russia, no. 13812/09, §§ 60-62, 20 June 2017, and Elvira Dmitriyeva v. Russia, nos. 60921/17 and 7202/18, §§ 107-10, 30 April 2019).", "Non-pecuniary damage", "88. The applicant also claimed EUR 10,000 in respect of non-pecuniary damage.", "89. The Government argued that the claim was excessive and inconsistent with the Court ’ s awards in similar cases.", "90. Taking into account the parties ’ submissions, the violations found, the Court grants the applicant ’ s claim in full. It awards him EUR 10,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable to him.", "Costs and expenses", "91. Lastly, the applicant claimed EUR 960 for the costs and expenses incurred before the Court.", "92. The Government contested the claim.", "93. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 850 covering costs for the proceedings before the Court, plus any tax that may be chargeable to the applicant.", "Default interest", "94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. the CIRCUMSTANCES OF THE CASE", "6. Mr Hans W. Kopp, a Swiss national born in 1931, was formerly a lawyer and lives in Zürich (Switzerland).", "A. Background to the case", "7. The applicant’s wife, Mrs Elisabeth Kopp, was a member of the Federal Council and head of the Federal Department of Justice and Police from 1984 until her resignation in January 1989.", "1. The letter of request", "8. On 28 February 1988 a Mr Hauser, a member of the law firm Kopp & Partners, was asked by a client to verify the legality of a request for judicial assistance sent to Switzerland by the United States authorities concerning a tax matter. After studying the file, Mr Hauser declined to accept the work, referring to a standing instruction to members of the applicant’s firm to refuse all cases concerning the Federal Department of Justice and Police, for which his wife was at that time responsible. The file was accordingly transferred to the law firm Niederer, Kraft & Frey in Zürich.", "9. On 10 June 1988 Niederer, Kraft & Frey asked the Federal Office of Police if they could inspect the letter of request. On 23 August 1988 the Federal Office sent the firm an abridged ( gestrippte ) version of the document, withholding a confidential section which concerned organised crime.", "2. Mrs Kopp’s resignation", "10. In November 1988, in a separate development, the media reported allegations that a company, Shakarchi Trading AG, and Mr Kopp, who was at the relevant time the vice-chairman of its board of directors, were implicated in money laundering. At the end of 1988 Mr Kopp lodged a complaint against a newspaper.", "11. At his wife’s request, the applicant had resigned as vice-chairman of the board in October 1988. His wife then came under suspicion of disclosing confidential information obtained in an official capacity. As her husband was also suspected of other offences, she was obliged to resign.", "3. The establishment of a parliamentary commission of inquiry", "12. On 31 January 1989 the Swiss parliament set up a parliamentary commission of inquiry to look into the way Mrs Kopp had performed her duties, and the circumstances of her resignation.", "13. In February 1989 the chairman of the parliamentary commission of inquiry, Mr Leuenberger, was informed that a Mr X, an American citizen, had obtained from the applicant a document which the Federal Office of Police and the Federal Court had refused to communicate to him, in exchange for a payment of 250,000 Swiss francs. Mr Leuenberger was given this information by a Mr Y, who had himself obtained it from the initial informant, a Mr Z.", "14. It subsequently transpired that Mr X was named in the American letter of request, which contained confidential information about his role in organised crime. Suspicion therefore arose that a member of the Federal Department of Justice and Police might have passed on confidential documents relating to the request, thus breaching the duty not to disclose official secrets.", "B. The course of the inquiry and monitoring of the applicant’s telephone lines", "15. On 21 November 1989 the Federal Public Prosecutor opened an investigation against a person or persons unknown in order to question the informant Y and to identify the person working at the Federal Department of Justice and Police who might have disclosed official secrets.", "16. He also ordered monitoring of the telephone lines of the informants Y and X, and of those of Mr Kopp and his wife. The applicant was monitored as a “third party”, not as a suspect.", "17. The monitoring began on 21 November 1989 and ended on 11 December 1989.", "18. On 23 November 1989 the President of the Indictment Division of the Federal Court allowed an application by the Federal Public Prosecutor for monitoring of thirteen telephone lines in total, including the applicant’s private and professional lines and those of his wife, and in particular a secret line allocated to her as a former member of the Federal Council. The order expressly mentioned that “the lawyers’ conversations [were] not to be taken into account”.", "19. On 24 November 1989 the parliamentary commission of inquiry published its report. It concluded that Mrs Kopp had performed her duties with competence, diligence and circumspection, and that the rumours to the effect that she had allowed external influences to affect the way she performed her duties were unfounded. In February 1990 the Federal Court acquitted Mrs Kopp of disclosing official secrets.", "20. On 1 December 1989 the Federal Public Prosecutor’s Office interviewed the informant Y, in the presence of the chairman of the parliamentary commission, Mr Leuenberger.", "21. On 4 December 1989 Mr Leuenberger contacted the informant Z, who was interviewed by the Federal Public Prosecutor’s Office on 8 December.", "22. On 12 December 1989, having concluded that the suspicions regarding the disclosure of official secrets were unfounded, the Federal Public Prosecutor’s Office discontinued monitoring of all Mr and Mrs Kopp’s telephone lines.", "23. On 14 December 1989 the Federal Public Prosecutor’s Office submitted its final report on the investigation, which stated that in 1988 Mr Hauser had passed on to the firm of Niederer, Kraft & Frey a file relating to the letter of request (see paragraph 8 above) and that there was no evidence that the applicant and his wife had been directly involved in that case.", "24. On 6 March 1990 the Federal Public Prosecutor’s Office decided to close the investigation, on the ground that there was no evidence to corroborate the suspicions that the applicant’s wife or a member of the Federal Department of Justice and Police had disclosed official secrets, namely certain passages of the letter of request which had been classified as confidential.", "25. In a letter of 9 March 1990 the Federal Public Prosecutor’s Office informed Mr Kopp that a judicial investigation had been opened, pursuant to Articles 320 and 340 § 1 (7) of the Criminal Code (see paragraph 34 below), in connection with the suspected disclosure of official secrets, and that his private and professional telephone lines had been tapped, in accordance with sections 66 et seq. of the Federal Criminal Procedure Act (see paragraphs 35–38 below).", "The letter stated that the monitoring had lasted from 21 November to 11 December 1989 and that “conversations connected with his professional activities as a lawyer [had not been] monitored”. It also stated that, pursuant to section 66(1 ter ) of the Federal Criminal Procedure Act, all the recordings had been destroyed.", "26. On 12 March 1990 the parliamentary commission of inquiry issued a communiqué concerning the monitoring of Mr Kopp’s telephone lines in connection with the judicial investigation concerning him. It stated in particular:", "“In the course of its inquiries, in connection with which it obtained authorisation to intercept telephone communications, the [Federal] Public Prosecutor’s Office discovered that the American citizen’s Swiss representatives had tried to obtain the confidential document in the file by applying to [the applicant]. They were hoping for privileged access to the Federal Department of Justice and Police on account of the fact that he was the husband of the Federal Councillor then responsible for that Department. For a fee, a lawyer from [the applicant]’s law firm studied the file in order to decide whether to take on the case, but turned it down. An attempt was then made to obtain the confidential part of the file through another lawyer. The American letter of request was in the end disclosed, but only after the confidential passages had been blotted out. On the basis of these findings, the Federal Public Prosecutor’s Office discontinued the investigation… The suspicion that there had been a disclosure of official secrets thus proved to be unfounded. The police investigation did, however, reveal how the rumour that led to the information and the suspicion arose.”", "27. On 13 March 1990 a number of Swiss newspapers commented on the above communiqué. They mentioned the applicant among the persons implicated and mentioned that telephones had been tapped.", "C. The proceedings brought by the applicant", "1. The complaint to the Federal Department of Justice and Police", "28. On 10 April, 3 September and 10 October 1990 Mr Kopp lodged complaints with the Federal Department of Justice and Police about breaches of the legislation on telephone tapping and of Article 8 of the Convention.", "29. On 2 November 1992 the Federal Department dismissed the applicant’s complaints. Considering that they were to be classified as complaints to a higher authority, it refused him unrestricted access to his file.", "2. The administrative appeal to the Federal Council", "30. On 2 December 1992 Mr Kopp lodged an administrative appeal with the Federal Council against the decision taken on 2 November 1992 by the Federal Department of Justice and Police. He complained, among other matters, of unlawful telephone tapping and of the refusal to give him free access to the file.", "Under the heading “Violation of Article 8 of the Convention”, he made the following submission in particular:", "“In that context, it should also be noted that the telephone lines of [the applicant]’s law firm, which included a number of partners, were tapped. Section 66(1 bis ) of the Federal Criminal Procedure Act expressly prohibits the interception of such telephone conversations. Interception of telephone conversations with [the applicant]’s law firm was therefore likewise illegal under the above-mentioned provision of Swiss law.”", "31. On 30 June 1993 the Federal Council dismissed the administrative appeal.", "It observed that, where telephone tapping was concerned, a complaint to a higher authority, even one which had no basis in law, was to be treated as a normal administrative appeal. It held that it had jurisdiction to determine whether monitoring of the applicant’s telephone lines had been unlawful, whether that measure had been in breach of the Convention and whether the applicant’s right to inspect his file had been infringed. If his personal rights had been infringed, the applicant could claim damages. He could also rely on the Federal Council’s decision in order to seek redress ( Genugtuung ) from the Federal Court.", "(a) The right to inspect the file", "The Federal Council considered that the applicant should have access only to those documents in the file which were directly relevant to the fact that he had had his telephone tapped as a “third party”. It noted that he had had restricted access to the documents, some of which had been censored, particularly as regards the informants’ names. Others, which concerned, for instance, the telephone tapping, had not been made available to him, but he had been orally informed of their existence and content. Several documents concerning third parties had not been handed over to him because their interests prevailed over his.", "(b) The lawfulness of the telephone tapping", "According to the Federal Council, section 66 of the Federal Criminal Procedure Act authorised monitoring the telephones of third parties, such as the applicant, if there was evidence giving rise to a presumption that they were receiving information from an offender or imparting information to him.", "It considered that in the period of general uncertainty due to rumours of subversion which had then obtained ( eine durch Unterwanderungsgerüchte verunsicherte Zeit ) there had been specific evidence pointing to a disclosure of official secrets by someone within the Federal Department of Justice and Police. The document in question contained confidential information about which guarantees had been given to the United States. The credibility of Switzerland had therefore been at stake. An apparent risk had been identified when the name of the applicant, who was the husband of the former head of the Department of Justice and Police, was mentioned.", "According to the Federal Council, it had been necessary to tap the telephone lines at the beginning of the investigation, before contacts were established with Mr Y and Mr Z. The civil servants concerned had therefore not immediately looked into the informants’ credibility, considering that any further contact would have compromised the investigation.", "The Federal Council observed that the applicant had had his telephone tapped not as a suspect but as a “third party” within the meaning of section 66(1 bis ) of the Federal Criminal Procedure Act. The conversations he had had in the capacity of lawyer had been expressly excluded. As he was not a civil servant, he could not have been guilty of the offence concerned. His wife had been one of the theoretically possible suspects, but there was no real evidence implicating her or anyone else. The fact that the applicant’s telephone lines had been monitored did not mean, therefore, that he had been under suspicion in the criminal sense. Moreover, the fact that the police investigation had been initiated in respect of “a person or persons unknown” was not simply a ploy to preserve appearances. Lastly, the investigation had not been ordered for political reasons and the chairman of the parliamentary commission had not been in a position to influence it.", "In conclusion, the Federal Council observed that the conversations recorded had been of no interest to the investigators and no report on them had been made. Be that as it may, even if such a report had been sent to the parliamentary commission, it could not have been used improperly because its members were bound by the duty not to disclose official secrets.", "3. The administrative-law appeal to the Federal Court", "32. The applicant also lodged with the Federal Court an administrative-law appeal against the decision taken on 2 November 1992 by the Federal Department of Justice and Police (see paragraph 29 above). He asked the Federal Court to rule that the telephone tapping had been unlawful and accordingly to order the institution of criminal proceedings against those responsible.", "33. On 8 March 1994 the Federal Court gave judgment against the applicant.", "It first considered whether he should have been permitted to inspect the whole of the file when the case had been brought before the Federal Department of Justice and Police. It noted that he had been able to inspect those passages in the document which had determined the decision ( entscheidungswesentlich ) and that the decision not to disclose the informants’ names had been justified. It held that the above conclusion was also consistent with the parliamentary commission of inquiry’s decision to guarantee the informants’ anonymity. Moreover, on the basis of even a partial inspection of the file ( gestützt auf die ihm zugestellten “gestrippten” Akten ), the applicant had been able to lodge appeals.", "The Federal Court then considered whether criminal proceedings should be brought in connection with the monitoring of the applicant’s telephone lines. It held that it was not required to provide a conclusive ( abschliessend ) answer to the question whether the telephone tapping constituted a violation of Article 8 of the Convention, having regard in particular to the fact that the applicant had already appealed to the Federal Council. It noted that criminal proceedings had been instituted for a presumed disclosure of official secrets on the basis of information passed on by the chairman of the parliamentary commission of inquiry. The applicant’s firm was involved inasmuch as one of his partners had looked into the case in order to decide whether he should take it on. The presumption by the Federal Public Prosecutor’s Office that the first informant or the disloyal civil servant would contact the applicant did not seem to have been wholly unjustified." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Swiss Criminal Code", "34. Under Article 320 § 1 of the Swiss Criminal Code, any person who discloses a secret entrusted to him in the capacity of civil servant makes himself liable to imprisonment or a fine. Under Article 340 § 1 (7), the offence comes under the jurisdiction of the Federal Court.", "B. The Federal Criminal Procedure Act", "35. The relevant provisions of the Federal Criminal Procedure Act (“the FCPA”), in the version of 23 March 1979, which was in force at the material time, were worded as follows:", "Section 66", "“1. The investigating judge may order monitoring of the accused’s or suspect’s postal correspondence and telecommunications…", "1 bis. Where the conditions justifying the monitoring of the accused or suspect are satisfied, third parties may also be monitored if specific facts give rise to the presumption that they are receiving or imparting information intended for the accused or suspect or sent by him. Persons who, by virtue of section 77, may refuse to give evidence shall be exempt.", "…", "1 ter. Recordings which are not needed for the conduct of an investigation shall be kept in a separate place, under lock and key, and shall be destroyed at the end of the proceedings…”", "Section 66 bis", "“1. Within twenty-four hours of his decision, the investigating judge shall submit a copy of it, accompanied by the file and a brief statement of his reasons, for approval by the President of the Indictment Division.", "2. The decision shall remain in force for not more than six months; the investigating judge may extend its validity for one or more further periods of six months. The order extending its validity, accompanied by the file and the statement of reasons, must be submitted, not later than ten days before expiry of the time-limit, for approval by the President of the Indictment Division.", "3. The investigating judge shall discontinue the monitoring as soon as it becomes unnecessary, or immediately if his decision is rescinded.”", "Section 66 ter", "“1. The President of the Indictment Division shall scrutinise the decision in the light of the statement of reasons and the file. Where he finds that there has been a breach of federal law, including any abuse of a discretionary power, he shall rescind the decision.", "2. He may authorise monitoring provisionally; in that case, he shall lay down a time-limit within which the investigating judge must justify the measure, either by adding any relevant material to the file or orally.”", "Section 66 quater", "“1. The procedure shall be kept secret even from the person concerned. The President of the Indictment Division shall give brief reasons for his decision and notify the investigating judge thereof within five days of the date when the monitoring began, or, where the period of validity has been extended, before the further period begins.", "2. The President of the Indictment Division shall ensure that the interception measures are discontinued on expiry of the time-limit.”", "Section 72", "“1. Before the opening of a preliminary investigation the Principal Public Prosecutor may order interception of postal correspondence and telecommunications…”", "Section 77", "“Clergymen, lawyers, notaries, doctors, pharmacists, midwives, and their auxiliaries, cannot be required to give evidence about secrets confided to them on account of their ministry or profession.”", "36. By the Telecommunications Act of 21 June 1991, which has been in force since 1 May 1992, the following relevant provisions were supplemented as follows (new text shown in italics):", "Section 66", "“1. The investigating judge may order monitoring of the accused’s or suspect’s postal correspondence and telecommunications if", "(a) The criminal proceedings concern a major offence whose seriousness or particular nature justifies intervention; and if", "(b) Specific facts cause the person who is to be monitored to be suspected of being a principal or accessory in the commission of the offence; and if", "(c) Without interception, the necessary investigations would be significantly more difficult to conduct or if other investigative measures have produced no results.", "1 bis. … The telecommunications connection of third parties may be monitored at any time if there are reasons to suspect that it is being used by the accused.", "…”", "37. By the Federal Law of 4 October 1991, which has been in force since 15 February 1992, the following relevant provisions were amended as follows:", "Section 66 quinquies", "“1. The investigating judge shall inform the person concerned, within thirty days of the close of the proceedings, of the reasons for the monitoring carried out, the means employed and its duration.", "…”", "Section 72", "“…", "3. Sections 66 to 66 quinquies shall be applicable by analogy .”", "C. Legal literature and case-law on the scope of professional privilege", "38. In the opinion of academic writers, information not specifically connected with a lawyer’s work on instructions from a party to proceedings is not covered by professional privilege (see, for example, G. Piquerez, Précis de procédure pénale suisse, Lausanne, 1994, p. 251, no. 1264, and B. Corboz, “ Le secret professionnel de l’avocat selon l’article 321 CP ”, Semaine judiciaire, Geneva, 1993, pp. 85–87).", "39. Thus, in a judgment of 29 December 1986 (see ATF [Judgments of the Swiss Federal Court] 112 lb 606), the Federal Court held that a lawyer may not decline to give evidence about confidential matters of which he has learned in the course of work not going beyond the management of assets and the investment of funds.", "In another judgment, of 16 October 1989, the Federal Court similarly held that a lawyer who is the director of a company may not plead professional privilege to justify his refusal to give evidence ( ATF 115 la 197).", "In a case where a lawyer had complained of a seizure of documents, the Federal Court, after considering the complaint in the particular light of Article 8 of the Convention, once again upheld that case-law on 11 September 1991 ( ATF 117 la 341).", "Similarly, in connection with medical confidentiality, the Federal Court has held that information imparted to a doctor in his private capacity is not protected by professional privilege ( ATF 101 la 10, judgment of 5 February 1975).", "PROCEEDINGS BEFORE THE COMMISSION", "40. Mr Kopp applied to the Commission on 15 December 1993. Relying on Articles 8 and 13 of the Convention, he complained of the monitoring of his telephone lines and of the lack of an effective remedy in that connection.", "41. The Commission (First Chamber) declared the application (23224/94) admissible on 12 April 1996. In its report of 16 October 1996 (Article 31), it expressed the unanimous opinion that there had been a breach of Article 8 but no breach of Article 13. The full text of the Commission’s opinion is reproduced as an annex to this judgment [4].", "FINAL SUBMISSIONS TO THE court", "42. In their memorial the Government asked the Court", "“to declare that there has been no violation of the Convention on the part of the Swiss authorities by virtue of the facts which gave rise to the application introduced by Mr Kopp against Switzerland”.", "43. The applicant asked the Court to uphold his application.", "AS TO THE LAW", "I. Alleged violation of Article 8 of the Convention", "44. Mr Kopp submitted that the interception of his telephone communications had breached Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The Government’s preliminary objection", "45. The Government submitted as their principal argument, as they had done before the Commission, that the applicant had not exhausted domestic remedies (Article 26 of the Convention), not having raised his complaint in substance before the national authorities. Before the Federal Council he had argued that it was only the application of section 66(1 bis ) of the Federal Criminal Procedure Act (“the FCPA” – see paragraph 35 above) which had been contrary to Article 8 of the Convention, without contesting the lawfulness as such of the tapping of his telephone lines.", "46. The applicant, on the other hand, asserted that he had complied with all the requirements of Article 26 of the Convention in so far as he had contended that the monitoring of his law firm’s telephone lines had no legal basis in Swiss law.", "47. The Court reiterates that the purpose of Article 26 is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Convention institutions. Thus the complaint to be submitted to the Commission must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. However, Article 26 must be applied with some degree of flexibility and without excessive formalism (see, for example, the Ankerl v. Switzerland judgment of 23 October 1996, Reports of Judgments and Decisions 1996-V, p. 1565, § 34, and the K.-F. v. Germany judgment of 27 November 1997, Reports 1997-VII, pp. 2670–71, § 46).", "48. In the present case, the Court notes that in Mr Kopp’s administrative appeal to the Federal Council of 2 December 1992 his lawyer complained, under the heading “Violation of Article 8 of the Convention”, that the tapping of his telephone lines had been unlawful (see paragraph 30 above). He maintained in particular that section 66(1 bis ) of the FCPA expressly prohibited the interception of lawyers’ telephone calls and consequently that the monitoring of the lines of the applicant’s law firm had contravened Swiss law.", "49. The Court therefore considers, like the Commission, that the applicant raised in substance, before the national authorities, his complaint relating to Article 8 of the Convention. The preliminary objection must accordingly be dismissed.", "B. Merits of the complaint", "1. Applicability of Article 8", "50. In the Court’s view, it is clear from its case-law that telephone calls made from or to business premises, such as those of a law firm, may be covered by the notions of “private life” and “correspondence” within the meaning of Article 8 § 1 (see, among other authorities, the Halford v. the United Kingdom judgment of 25 June 1997, Reports 1997-III, p. 1016, § 44, and, mutatis mutandis, the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, pp. 33–35, §§ 28–33). This point was in fact not disputed.", "2. Compliance with Article 8", "(a) Existence of an interference", "51. The Government contended that the question whether there had really been interference by the authorities with the applicant’s private life and correspondence remained open, since none of the recorded conversations in which he had taken part had been brought to the knowledge of the prosecuting authorities, all the recordings had been destroyed and no use whatsoever had been made of any of them.", "52. The Court notes that it was not contested that the Federal Public Prosecutor had ordered the monitoring of the telephone lines of Mr Kopp’s law firm, that the President of the Indictment Division of the Federal Court had approved that measure and that it had lasted from 21 November to 11 December 1989 (see paragraphs 16–18 above).", "53. Interception of telephone calls constitutes “interference by a public authority”, within the meaning of Article 8 § 2, with the exercise of a right guaranteed to the applicant under paragraph 1 (see, among other authorities, the Malone v. the United Kingdom judgment of 2 August 1984, Series A no. 82, p. 30, § 64, and the above-mentioned Halford judgment, p. 1017, § 48 in fine ). The subsequent use of the recordings made has no bearing on that finding.", "(b) Justification for the interference", "54. Such interference breaches Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is, in addition, “necessary in a democratic society” to achieve those aims.", "(i) “In accordance with the law”", "55. The expression “in accordance with the law”, within the meaning of Article 8 § 2, requires firstly that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law.", "– Whether there was a legal basis in Swiss law", "56. The applicant submitted that in the present case there was no legal basis in Swiss law, since sections 66(1 bis ) and 77 of the FCPA (see paragraph 35 above) expressly prohibited the tapping of a lawyer’s telephone lines where the latter was being monitored as a third party.", "57. The Commission accepted this argument. It took the view that the purpose of the legal provisions in question was to protect the professional relationship between, among others, a lawyer and his clients. For this special relationship to be respected, it had to be assumed that all the telephone calls of a law firm were of a professional nature. Consequently, the Swiss authorities’ interpretation to the effect that these provisions gave them the power to record and listen to a lawyer’s telephone conversations before deciding whether they were covered by professional privilege could not be accepted.", "58. The Government maintained in the first place that telephone tapping in the course of proceedings conducted by the federal authorities was governed by a set of exhaustive and detailed rules (see paragraphs 35–37 above). Moreover, according to sections 66(1 bis ) and 77 of the FCPA, and the relevant legal literature and case-law, legal professional privilege covered only activities specific to a lawyer’s profession.", "59. The Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among many other authorities, the above-mentioned Malone judgment, p. 35, § 79, and the Kruslin v. France and Huvig v. France judgments of 24 April 1990, Series A no. 176-A and B, p. 21, § 29, and p. 53, § 28, respectively). In principle, therefore, it is not for the Court to express an opinion contrary to that of the Federal Department of Justice and Police and the Federal Council on the compatibility of the judicially ordered tapping of Mr Kopp’s telephone with sections 66(1 bis ) and 77 of the FCPA.", "60. Moreover, the Court cannot ignore the opinions of academic writers and the Federal Court’s case-law on the question, which the Government cited in their memorial (see paragraphs 38–39 above).", "In relation to paragraph 2 of Article 8 of the Convention and other similar clauses, the Court has always understood the term “law” in its “substantive” sense, not its “formal one”, and has in particular included unwritten law therein (see the above-mentioned Kruslin and Huvig judgments, pp. 21–22, § 29 in fine, and pp. 53–54, § 28 in fine, respectively).", "61. In short, the interference complained of had a legal basis in Swiss law.", "– “Quality of the law”", "62. The second requirement which emerges from the phrase “in accordance with the law” – the accessibility of the law – does not raise any problem in the instant case.", "63. The same is not true of the third requirement, the law’s “foreseeability” as to the meaning and nature of the applicable measures.", "64. The Court reiterates in that connection that Article 8 § 2 requires the law in question to be “compatible with the rule of law”. In the context of secret measures of surveillance or interception of communications by public authorities, because of the lack of public scrutiny and the risk of misuse of power, the domestic law must provide some protection to the individual against arbitrary interference with Article 8 rights. Thus, the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and conditions on which public authorities are empowered to resort to any such secret measures (see, as the most recent authority, the above-mentioned Halford judgment, p. 1017, § 49).", "65. The Government submitted that the relevant legislation taken as a whole and the case-law of the Federal Court warranted the conclusion that the telephone tapping ordered in the instant case did in fact satisfy the requirement of foreseeability, as defined by the European Court.", "66. The Court must therefore examine the “quality” of the legal rules applicable to Mr Kopp in the instant case.", "67. It notes in the first place that the telephone lines of the applicant’s law firm were tapped pursuant to sections 66 et seq. of the FCPA (see paragraph 25 above) and that he was monitored as a third party.", "Under section 66(1 bis ) of the FCPA, “… third parties may also be monitored if specific facts give rise to the presumption that they are receiving or imparting information intended for the accused or suspect or sent by him. Persons who, by virtue of section 77, may refuse to give evidence shall be exempt.”", "Section 77 of the FCPA provides: “… lawyers … cannot be required to give evidence about secrets confided to them on account of their … profession.”", "68. On the face of it, the text seems clear and would appear to prohibit the monitoring of a lawyer’s telephone lines when he is neither suspected nor accused. It is intended to protect the professional relations between a lawyer and his clients through the confidentiality of telephone conversations.", "69. In the present case, moreover, the President of the Indictment Division adverted to that principle of the law, since the order of 23 November 1989 (see paragraph 18 above) states: “the lawyers’ conversations are not to be taken into account.” Similarly the Federal Public Prosecutor’s Office mentioned it in the letter of 9 March 1990 informing the applicant that his telephone lines had been tapped (see paragraph 25 above) and the Federal Council likewise referred to it in its decision of 30 June 1993 (see paragraph 31 above).", "70. However, as the Court has already observed (see paragraph 52 above), all the telephone lines of Mr Kopp’s law firm were monitored from 21 November to 11 December 1989.", "71. The Government sought to resolve this contradiction by referring to the opinions of academic writers and the Federal Court’s case-law to the effect that legal professional privilege covered only matters connected with a lawyer’s profession. They added that Mr Kopp, the husband of a former member of the Federal Council, had not had his telephones tapped in his capacity as a lawyer. In the instant case, in accordance with Swiss telephone-monitoring practice, a specialist Post Office official had listened to the tape in order to identify any conversations relevant to the proceedings in progress, but no recording had been put aside and sent to the Federal Public Prosecutor’s Office.", "72. The Court, however, is not persuaded by these arguments.", "Firstly, it is not for the Court to speculate as to the capacity in which Mr Kopp had had his telephones tapped, since he was a lawyer and all his law firm’s telephone lines had been monitored.", "Secondly, tapping and other forms of interception of telephone conversations constitute a serious interference with private life and correspondence and must accordingly be based on a “law” that is particularly precise. It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated (see the above-mentioned Kruslin and Huvig judgments, p. 23, § 33, and p. 55, § 32, respectively).", "In that connection, the Court by no means seeks to minimise the value of some of the safeguards built into the law, such as the requirement at the relevant stage of the proceedings that the prosecuting authorities’ telephone-tapping order must be approved by the President of the Indictment Division (see paragraphs 18 and 35 above), who is an independent judge, or the fact that the applicant was officially informed that his telephone calls had been intercepted (see paragraph 25 above).", "73. However, the Court discerns a contradiction between the clear text of legislation which protects legal professional privilege when a lawyer is being monitored as a third party and the practice followed in the present case. Even though the case-law has established the principle, which is moreover generally accepted, that legal professional privilege covers only the relationship between a lawyer and his clients, the law does not clearly state how, under what conditions and by whom the distinction is to be drawn between matters specifically connected with a lawyer’s work under instructions from a party to proceedings and those relating to activity other than that of counsel.", "74. Above all, in practice, it is, to say the least, astonishing that this task should be assigned to an official of the Post Office’s legal department, who is a member of the executive, without supervision by an independent judge, especially in this sensitive area of the confidential relations between a lawyer and his clients, which directly concern the rights of the defence.", "75. In short, Swiss law, whether written or unwritten, does not indicate with sufficient clarity the scope and manner of exercise of the authorities’ discretion in the matter. Consequently, Mr Kopp, as a lawyer, did not enjoy the minimum degree of protection required by the rule of law in a democratic society. There has therefore been a breach of Article 8.", "(ii) Purpose and necessity of the interference", "76. Having regard to the above conclusion, the Court, like the Commission, does not consider it necessary to review compliance with the other requirements of paragraph 2 of Article 8 in this case.", "II. Alleged violation of Article 13 of the Convention", "77. Article 13 of the Convention provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "78. Mr Kopp expressly stated that he did not intend to pursue this complaint before the Court, and the Court considers that it is not required to consider it of its own motion.", "III. application of Article 50 of the Convention", "79. Under Article 50 of the Convention,", "“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "80. Mr Kopp claimed 550,000 Swiss francs (CHF) for pecuniary damage on account of the effects that publication of the fact that his law firm’s telephone lines had been tapped had had on his professional activities and his firm’s good name. He also claimed CHF 1,000 for non-pecuniary damage, on the ground that the monitoring of his telephone lines had seriously perturbed his relations with his family and the members of his firm.", "81. The Government maintained that the amounts claimed were excessive and that the applicant had not adduced evidence of either the existence of pecuniary damage or a causal connection between any violation of the Convention and such damage. Furthermore, if the applicant had lost clients, it was not because of the telephone tapping in issue but for other reasons, such as the fact that he had been convicted of fraud and forging securities or the fact that his name had been struck off the roll of members of the Bar.", "As regards non-pecuniary damage, the Government submitted that if the Court were to find a violation, that would constitute sufficient just satisfaction.", "82. The Delegate of the Commission submitted that compensation should be awarded for loss of income, but left the amount to the Court’s discretion. He was of the view that the compensation claimed for non-pecuniary damage was justified.", "83. As regards pecuniary damage, the Court considers that Mr Kopp was not able to prove the existence of a causal connection between the interception of his telephone calls and the alleged loss. As to non-pecuniary damage, the Court considers that the finding of a violation of Article 8 constitutes sufficient compensation.", "B. Costs and expenses", "84. The applicant also claimed CHF 67,640 in respect of his costs and expenses for the proceedings in the Swiss courts and CHF 58,291 in respect of those he had incurred for the proceedings before the Convention institutions. He further sought CHF 174,000 for research he had conducted himself and for out-of-pocket expenses.", "85. The Government submitted that if the Court were to find a violation, an award of CHF 21,783 for costs and expenses would satisfy the requirements of Article 50. If the finding of a violation concerned only one of the two complaints raised by the applicant, it would be appropriate for the Court to reduce that amount in an equitable proportion.", "86. The Delegate of the Commission left the amount to be awarded for costs and expenses to the Court’s discretion.", "87. On the basis of the information in its possession and its case-law on this question, and taking into account the fact that only the applicant’s complaint under Article 8 of the Convention has given rise to the finding of a violation, as the applicant expressly stated that he no longer wished to pursue the complaint relating to Article 13 of the Convention (see paragraph 78 above), the Court decides, on an equitable basis, to award the applicant the sum of CHF 15,000.", "C. Default interest", "88. According to the information available to the Court, the statutory rate of interest applicable in Switzerland at the date of adoption of the present judgment is 5% per annum." ]

[ "I. the CIRCUMSTANCES OF THE CASE", "6. Mr Hans W. Kopp, a Swiss national born in 1931, was formerly a lawyer and lives in Zürich (Switzerland).", "A. Background to the case", "7. The applicant’s wife, Mrs Elisabeth Kopp, was a member of the Federal Council and head of the Federal Department of Justice and Police from 1984 until her resignation in January 1989.", "1. The letter of request", "8. On 28 February 1988 a Mr Hauser, a member of the law firm Kopp & Partners, was asked by a client to verify the legality of a request for judicial assistance sent to Switzerland by the United States authorities concerning a tax matter. After studying the file, Mr Hauser declined to accept the work, referring to a standing instruction to members of the applicant’s firm to refuse all cases concerning the Federal Department of Justice and Police, for which his wife was at that time responsible. The file was accordingly transferred to the law firm Niederer, Kraft & Frey in Zürich.", "9. On 10 June 1988 Niederer, Kraft & Frey asked the Federal Office of Police if they could inspect the letter of request. On 23 August 1988 the Federal Office sent the firm an abridged ( gestrippte ) version of the document, withholding a confidential section which concerned organised crime.", "2. Mrs Kopp’s resignation", "10. In November 1988, in a separate development, the media reported allegations that a company, Shakarchi Trading AG, and Mr Kopp, who was at the relevant time the vice-chairman of its board of directors, were implicated in money laundering. At the end of 1988 Mr Kopp lodged a complaint against a newspaper.", "11. At his wife’s request, the applicant had resigned as vice-chairman of the board in October 1988. His wife then came under suspicion of disclosing confidential information obtained in an official capacity. As her husband was also suspected of other offences, she was obliged to resign.", "3. The establishment of a parliamentary commission of inquiry", "12. On 31 January 1989 the Swiss parliament set up a parliamentary commission of inquiry to look into the way Mrs Kopp had performed her duties, and the circumstances of her resignation.", "13. In February 1989 the chairman of the parliamentary commission of inquiry, Mr Leuenberger, was informed that a Mr X, an American citizen, had obtained from the applicant a document which the Federal Office of Police and the Federal Court had refused to communicate to him, in exchange for a payment of 250,000 Swiss francs. Mr Leuenberger was given this information by a Mr Y, who had himself obtained it from the initial informant, a Mr Z.", "14. It subsequently transpired that Mr X was named in the American letter of request, which contained confidential information about his role in organised crime. Suspicion therefore arose that a member of the Federal Department of Justice and Police might have passed on confidential documents relating to the request, thus breaching the duty not to disclose official secrets.", "B. The course of the inquiry and monitoring of the applicant’s telephone lines", "15. On 21 November 1989 the Federal Public Prosecutor opened an investigation against a person or persons unknown in order to question the informant Y and to identify the person working at the Federal Department of Justice and Police who might have disclosed official secrets.", "16. He also ordered monitoring of the telephone lines of the informants Y and X, and of those of Mr Kopp and his wife. The applicant was monitored as a “third party”, not as a suspect.", "17. The monitoring began on 21 November 1989 and ended on 11 December 1989.", "18. On 23 November 1989 the President of the Indictment Division of the Federal Court allowed an application by the Federal Public Prosecutor for monitoring of thirteen telephone lines in total, including the applicant’s private and professional lines and those of his wife, and in particular a secret line allocated to her as a former member of the Federal Council. The order expressly mentioned that “the lawyers’ conversations [were] not to be taken into account”.", "19. On 24 November 1989 the parliamentary commission of inquiry published its report. It concluded that Mrs Kopp had performed her duties with competence, diligence and circumspection, and that the rumours to the effect that she had allowed external influences to affect the way she performed her duties were unfounded. In February 1990 the Federal Court acquitted Mrs Kopp of disclosing official secrets.", "20. On 1 December 1989 the Federal Public Prosecutor’s Office interviewed the informant Y, in the presence of the chairman of the parliamentary commission, Mr Leuenberger.", "21. On 4 December 1989 Mr Leuenberger contacted the informant Z, who was interviewed by the Federal Public Prosecutor’s Office on 8 December.", "22. On 12 December 1989, having concluded that the suspicions regarding the disclosure of official secrets were unfounded, the Federal Public Prosecutor’s Office discontinued monitoring of all Mr and Mrs Kopp’s telephone lines.", "23. On 14 December 1989 the Federal Public Prosecutor’s Office submitted its final report on the investigation, which stated that in 1988 Mr Hauser had passed on to the firm of Niederer, Kraft & Frey a file relating to the letter of request (see paragraph 8 above) and that there was no evidence that the applicant and his wife had been directly involved in that case.", "24. On 6 March 1990 the Federal Public Prosecutor’s Office decided to close the investigation, on the ground that there was no evidence to corroborate the suspicions that the applicant’s wife or a member of the Federal Department of Justice and Police had disclosed official secrets, namely certain passages of the letter of request which had been classified as confidential.", "25. In a letter of 9 March 1990 the Federal Public Prosecutor’s Office informed Mr Kopp that a judicial investigation had been opened, pursuant to Articles 320 and 340 § 1 (7) of the Criminal Code (see paragraph 34 below), in connection with the suspected disclosure of official secrets, and that his private and professional telephone lines had been tapped, in accordance with sections 66 et seq. of the Federal Criminal Procedure Act (see paragraphs 35–38 below).", "The letter stated that the monitoring had lasted from 21 November to 11 December 1989 and that “conversations connected with his professional activities as a lawyer [had not been] monitored”. It also stated that, pursuant to section 66(1 ter ) of the Federal Criminal Procedure Act, all the recordings had been destroyed.", "26. On 12 March 1990 the parliamentary commission of inquiry issued a communiqué concerning the monitoring of Mr Kopp’s telephone lines in connection with the judicial investigation concerning him. It stated in particular:", "“In the course of its inquiries, in connection with which it obtained authorisation to intercept telephone communications, the [Federal] Public Prosecutor’s Office discovered that the American citizen’s Swiss representatives had tried to obtain the confidential document in the file by applying to [the applicant]. They were hoping for privileged access to the Federal Department of Justice and Police on account of the fact that he was the husband of the Federal Councillor then responsible for that Department. For a fee, a lawyer from [the applicant]’s law firm studied the file in order to decide whether to take on the case, but turned it down. An attempt was then made to obtain the confidential part of the file through another lawyer. The American letter of request was in the end disclosed, but only after the confidential passages had been blotted out. On the basis of these findings, the Federal Public Prosecutor’s Office discontinued the investigation… The suspicion that there had been a disclosure of official secrets thus proved to be unfounded. The police investigation did, however, reveal how the rumour that led to the information and the suspicion arose.”", "27. On 13 March 1990 a number of Swiss newspapers commented on the above communiqué. They mentioned the applicant among the persons implicated and mentioned that telephones had been tapped.", "C. The proceedings brought by the applicant", "1. The complaint to the Federal Department of Justice and Police", "28. On 10 April, 3 September and 10 October 1990 Mr Kopp lodged complaints with the Federal Department of Justice and Police about breaches of the legislation on telephone tapping and of Article 8 of the Convention.", "29. On 2 November 1992 the Federal Department dismissed the applicant’s complaints. Considering that they were to be classified as complaints to a higher authority, it refused him unrestricted access to his file.", "2. The administrative appeal to the Federal Council", "30. On 2 December 1992 Mr Kopp lodged an administrative appeal with the Federal Council against the decision taken on 2 November 1992 by the Federal Department of Justice and Police. He complained, among other matters, of unlawful telephone tapping and of the refusal to give him free access to the file.", "Under the heading “Violation of Article 8 of the Convention”, he made the following submission in particular:", "“In that context, it should also be noted that the telephone lines of [the applicant]’s law firm, which included a number of partners, were tapped. Section 66(1 bis ) of the Federal Criminal Procedure Act expressly prohibits the interception of such telephone conversations. Interception of telephone conversations with [the applicant]’s law firm was therefore likewise illegal under the above-mentioned provision of Swiss law.”", "31. On 30 June 1993 the Federal Council dismissed the administrative appeal.", "It observed that, where telephone tapping was concerned, a complaint to a higher authority, even one which had no basis in law, was to be treated as a normal administrative appeal. It held that it had jurisdiction to determine whether monitoring of the applicant’s telephone lines had been unlawful, whether that measure had been in breach of the Convention and whether the applicant’s right to inspect his file had been infringed. If his personal rights had been infringed, the applicant could claim damages. He could also rely on the Federal Council’s decision in order to seek redress ( Genugtuung ) from the Federal Court.", "(a) The right to inspect the file", "The Federal Council considered that the applicant should have access only to those documents in the file which were directly relevant to the fact that he had had his telephone tapped as a “third party”. It noted that he had had restricted access to the documents, some of which had been censored, particularly as regards the informants’ names. Others, which concerned, for instance, the telephone tapping, had not been made available to him, but he had been orally informed of their existence and content. Several documents concerning third parties had not been handed over to him because their interests prevailed over his.", "(b) The lawfulness of the telephone tapping", "According to the Federal Council, section 66 of the Federal Criminal Procedure Act authorised monitoring the telephones of third parties, such as the applicant, if there was evidence giving rise to a presumption that they were receiving information from an offender or imparting information to him.", "It considered that in the period of general uncertainty due to rumours of subversion which had then obtained ( eine durch Unterwanderungsgerüchte verunsicherte Zeit ) there had been specific evidence pointing to a disclosure of official secrets by someone within the Federal Department of Justice and Police. The document in question contained confidential information about which guarantees had been given to the United States. The credibility of Switzerland had therefore been at stake. An apparent risk had been identified when the name of the applicant, who was the husband of the former head of the Department of Justice and Police, was mentioned.", "According to the Federal Council, it had been necessary to tap the telephone lines at the beginning of the investigation, before contacts were established with Mr Y and Mr Z. The civil servants concerned had therefore not immediately looked into the informants’ credibility, considering that any further contact would have compromised the investigation.", "The Federal Council observed that the applicant had had his telephone tapped not as a suspect but as a “third party” within the meaning of section 66(1 bis ) of the Federal Criminal Procedure Act. The conversations he had had in the capacity of lawyer had been expressly excluded. As he was not a civil servant, he could not have been guilty of the offence concerned. His wife had been one of the theoretically possible suspects, but there was no real evidence implicating her or anyone else. The fact that the applicant’s telephone lines had been monitored did not mean, therefore, that he had been under suspicion in the criminal sense. Moreover, the fact that the police investigation had been initiated in respect of “a person or persons unknown” was not simply a ploy to preserve appearances. Lastly, the investigation had not been ordered for political reasons and the chairman of the parliamentary commission had not been in a position to influence it.", "In conclusion, the Federal Council observed that the conversations recorded had been of no interest to the investigators and no report on them had been made. Be that as it may, even if such a report had been sent to the parliamentary commission, it could not have been used improperly because its members were bound by the duty not to disclose official secrets.", "3. The administrative-law appeal to the Federal Court", "32. The applicant also lodged with the Federal Court an administrative-law appeal against the decision taken on 2 November 1992 by the Federal Department of Justice and Police (see paragraph 29 above). He asked the Federal Court to rule that the telephone tapping had been unlawful and accordingly to order the institution of criminal proceedings against those responsible.", "33. On 8 March 1994 the Federal Court gave judgment against the applicant.", "It first considered whether he should have been permitted to inspect the whole of the file when the case had been brought before the Federal Department of Justice and Police. It noted that he had been able to inspect those passages in the document which had determined the decision ( entscheidungswesentlich ) and that the decision not to disclose the informants’ names had been justified. It held that the above conclusion was also consistent with the parliamentary commission of inquiry’s decision to guarantee the informants’ anonymity. Moreover, on the basis of even a partial inspection of the file ( gestützt auf die ihm zugestellten “gestrippten” Akten ), the applicant had been able to lodge appeals.", "The Federal Court then considered whether criminal proceedings should be brought in connection with the monitoring of the applicant’s telephone lines. It held that it was not required to provide a conclusive ( abschliessend ) answer to the question whether the telephone tapping constituted a violation of Article 8 of the Convention, having regard in particular to the fact that the applicant had already appealed to the Federal Council. It noted that criminal proceedings had been instituted for a presumed disclosure of official secrets on the basis of information passed on by the chairman of the parliamentary commission of inquiry. The applicant’s firm was involved inasmuch as one of his partners had looked into the case in order to decide whether he should take it on. The presumption by the Federal Public Prosecutor’s Office that the first informant or the disloyal civil servant would contact the applicant did not seem to have been wholly unjustified." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Swiss Criminal Code", "34. Under Article 320 § 1 of the Swiss Criminal Code, any person who discloses a secret entrusted to him in the capacity of civil servant makes himself liable to imprisonment or a fine. Under Article 340 § 1 (7), the offence comes under the jurisdiction of the Federal Court.", "B. The Federal Criminal Procedure Act", "35. The relevant provisions of the Federal Criminal Procedure Act (“the FCPA”), in the version of 23 March 1979, which was in force at the material time, were worded as follows:", "Section 66", "“1. The investigating judge may order monitoring of the accused’s or suspect’s postal correspondence and telecommunications…", "1 bis. Where the conditions justifying the monitoring of the accused or suspect are satisfied, third parties may also be monitored if specific facts give rise to the presumption that they are receiving or imparting information intended for the accused or suspect or sent by him. Persons who, by virtue of section 77, may refuse to give evidence shall be exempt.", "…", "1 ter. Recordings which are not needed for the conduct of an investigation shall be kept in a separate place, under lock and key, and shall be destroyed at the end of the proceedings…”", "Section 66 bis", "“1. Within twenty-four hours of his decision, the investigating judge shall submit a copy of it, accompanied by the file and a brief statement of his reasons, for approval by the President of the Indictment Division.", "2. The decision shall remain in force for not more than six months; the investigating judge may extend its validity for one or more further periods of six months. The order extending its validity, accompanied by the file and the statement of reasons, must be submitted, not later than ten days before expiry of the time-limit, for approval by the President of the Indictment Division.", "3. The investigating judge shall discontinue the monitoring as soon as it becomes unnecessary, or immediately if his decision is rescinded.”", "Section 66 ter", "“1. The President of the Indictment Division shall scrutinise the decision in the light of the statement of reasons and the file. Where he finds that there has been a breach of federal law, including any abuse of a discretionary power, he shall rescind the decision.", "2. He may authorise monitoring provisionally; in that case, he shall lay down a time-limit within which the investigating judge must justify the measure, either by adding any relevant material to the file or orally.”", "Section 66 quater", "“1. The procedure shall be kept secret even from the person concerned. The President of the Indictment Division shall give brief reasons for his decision and notify the investigating judge thereof within five days of the date when the monitoring began, or, where the period of validity has been extended, before the further period begins.", "2. The President of the Indictment Division shall ensure that the interception measures are discontinued on expiry of the time-limit.”", "Section 72", "“1. Before the opening of a preliminary investigation the Principal Public Prosecutor may order interception of postal correspondence and telecommunications…”", "Section 77", "“Clergymen, lawyers, notaries, doctors, pharmacists, midwives, and their auxiliaries, cannot be required to give evidence about secrets confided to them on account of their ministry or profession.”", "36. By the Telecommunications Act of 21 June 1991, which has been in force since 1 May 1992, the following relevant provisions were supplemented as follows (new text shown in italics):", "Section 66", "“1. The investigating judge may order monitoring of the accused’s or suspect’s postal correspondence and telecommunications if", "(a) The criminal proceedings concern a major offence whose seriousness or particular nature justifies intervention; and if", "(b) Specific facts cause the person who is to be monitored to be suspected of being a principal or accessory in the commission of the offence; and if", "(c) Without interception, the necessary investigations would be significantly more difficult to conduct or if other investigative measures have produced no results.", "1 bis. … The telecommunications connection of third parties may be monitored at any time if there are reasons to suspect that it is being used by the accused.", "…”", "37. By the Federal Law of 4 October 1991, which has been in force since 15 February 1992, the following relevant provisions were amended as follows:", "Section 66 quinquies", "“1. The investigating judge shall inform the person concerned, within thirty days of the close of the proceedings, of the reasons for the monitoring carried out, the means employed and its duration.", "…”", "Section 72", "“…", "3. Sections 66 to 66 quinquies shall be applicable by analogy .”", "C. Legal literature and case-law on the scope of professional privilege", "38. In the opinion of academic writers, information not specifically connected with a lawyer’s work on instructions from a party to proceedings is not covered by professional privilege (see, for example, G. Piquerez, Précis de procédure pénale suisse, Lausanne, 1994, p. 251, no. 1264, and B. Corboz, “ Le secret professionnel de l’avocat selon l’article 321 CP ”, Semaine judiciaire, Geneva, 1993, pp. 85–87).", "39. Thus, in a judgment of 29 December 1986 (see ATF [Judgments of the Swiss Federal Court] 112 lb 606), the Federal Court held that a lawyer may not decline to give evidence about confidential matters of which he has learned in the course of work not going beyond the management of assets and the investment of funds.", "In another judgment, of 16 October 1989, the Federal Court similarly held that a lawyer who is the director of a company may not plead professional privilege to justify his refusal to give evidence ( ATF 115 la 197).", "In a case where a lawyer had complained of a seizure of documents, the Federal Court, after considering the complaint in the particular light of Article 8 of the Convention, once again upheld that case-law on 11 September 1991 ( ATF 117 la 341).", "Similarly, in connection with medical confidentiality, the Federal Court has held that information imparted to a doctor in his private capacity is not protected by professional privilege ( ATF 101 la 10, judgment of 5 February 1975).", "PROCEEDINGS BEFORE THE COMMISSION", "40. Mr Kopp applied to the Commission on 15 December 1993. Relying on Articles 8 and 13 of the Convention, he complained of the monitoring of his telephone lines and of the lack of an effective remedy in that connection.", "41. The Commission (First Chamber) declared the application (23224/94) admissible on 12 April 1996. In its report of 16 October 1996 (Article 31), it expressed the unanimous opinion that there had been a breach of Article 8 but no breach of Article 13. The full text of the Commission’s opinion is reproduced as an annex to this judgment [4].", "FINAL SUBMISSIONS TO THE court", "42. In their memorial the Government asked the Court", "“to declare that there has been no violation of the Convention on the part of the Swiss authorities by virtue of the facts which gave rise to the application introduced by Mr Kopp against Switzerland”.", "43. The applicant asked the Court to uphold his application.", "AS TO THE LAW", "I. Alleged violation of Article 8 of the Convention", "44. Mr Kopp submitted that the interception of his telephone communications had breached Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The Government’s preliminary objection", "45. The Government submitted as their principal argument, as they had done before the Commission, that the applicant had not exhausted domestic remedies (Article 26 of the Convention), not having raised his complaint in substance before the national authorities. Before the Federal Council he had argued that it was only the application of section 66(1 bis ) of the Federal Criminal Procedure Act (“the FCPA” – see paragraph 35 above) which had been contrary to Article 8 of the Convention, without contesting the lawfulness as such of the tapping of his telephone lines.", "46. The applicant, on the other hand, asserted that he had complied with all the requirements of Article 26 of the Convention in so far as he had contended that the monitoring of his law firm’s telephone lines had no legal basis in Swiss law.", "47. The Court reiterates that the purpose of Article 26 is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Convention institutions. Thus the complaint to be submitted to the Commission must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. However, Article 26 must be applied with some degree of flexibility and without excessive formalism (see, for example, the Ankerl v. Switzerland judgment of 23 October 1996, Reports of Judgments and Decisions 1996-V, p. 1565, § 34, and the K.-F. v. Germany judgment of 27 November 1997, Reports 1997-VII, pp. 2670–71, § 46).", "48. In the present case, the Court notes that in Mr Kopp’s administrative appeal to the Federal Council of 2 December 1992 his lawyer complained, under the heading “Violation of Article 8 of the Convention”, that the tapping of his telephone lines had been unlawful (see paragraph 30 above). He maintained in particular that section 66(1 bis ) of the FCPA expressly prohibited the interception of lawyers’ telephone calls and consequently that the monitoring of the lines of the applicant’s law firm had contravened Swiss law.", "49. The Court therefore considers, like the Commission, that the applicant raised in substance, before the national authorities, his complaint relating to Article 8 of the Convention. The preliminary objection must accordingly be dismissed.", "B. Merits of the complaint", "1. Applicability of Article 8", "50. In the Court’s view, it is clear from its case-law that telephone calls made from or to business premises, such as those of a law firm, may be covered by the notions of “private life” and “correspondence” within the meaning of Article 8 § 1 (see, among other authorities, the Halford v. the United Kingdom judgment of 25 June 1997, Reports 1997-III, p. 1016, § 44, and, mutatis mutandis, the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, pp. 33–35, §§ 28–33). This point was in fact not disputed.", "2. Compliance with Article 8", "(a) Existence of an interference", "51. The Government contended that the question whether there had really been interference by the authorities with the applicant’s private life and correspondence remained open, since none of the recorded conversations in which he had taken part had been brought to the knowledge of the prosecuting authorities, all the recordings had been destroyed and no use whatsoever had been made of any of them.", "52. The Court notes that it was not contested that the Federal Public Prosecutor had ordered the monitoring of the telephone lines of Mr Kopp’s law firm, that the President of the Indictment Division of the Federal Court had approved that measure and that it had lasted from 21 November to 11 December 1989 (see paragraphs 16–18 above).", "53. Interception of telephone calls constitutes “interference by a public authority”, within the meaning of Article 8 § 2, with the exercise of a right guaranteed to the applicant under paragraph 1 (see, among other authorities, the Malone v. the United Kingdom judgment of 2 August 1984, Series A no. 82, p. 30, § 64, and the above-mentioned Halford judgment, p. 1017, § 48 in fine ). The subsequent use of the recordings made has no bearing on that finding.", "(b) Justification for the interference", "54. Such interference breaches Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is, in addition, “necessary in a democratic society” to achieve those aims.", "(i) “In accordance with the law”", "55. The expression “in accordance with the law”, within the meaning of Article 8 § 2, requires firstly that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law.", "– Whether there was a legal basis in Swiss law", "56. The applicant submitted that in the present case there was no legal basis in Swiss law, since sections 66(1 bis ) and 77 of the FCPA (see paragraph 35 above) expressly prohibited the tapping of a lawyer’s telephone lines where the latter was being monitored as a third party.", "57. The Commission accepted this argument. It took the view that the purpose of the legal provisions in question was to protect the professional relationship between, among others, a lawyer and his clients. For this special relationship to be respected, it had to be assumed that all the telephone calls of a law firm were of a professional nature. Consequently, the Swiss authorities’ interpretation to the effect that these provisions gave them the power to record and listen to a lawyer’s telephone conversations before deciding whether they were covered by professional privilege could not be accepted.", "58. The Government maintained in the first place that telephone tapping in the course of proceedings conducted by the federal authorities was governed by a set of exhaustive and detailed rules (see paragraphs 35–37 above). Moreover, according to sections 66(1 bis ) and 77 of the FCPA, and the relevant legal literature and case-law, legal professional privilege covered only activities specific to a lawyer’s profession.", "59. The Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among many other authorities, the above-mentioned Malone judgment, p. 35, § 79, and the Kruslin v. France and Huvig v. France judgments of 24 April 1990, Series A no. 176-A and B, p. 21, § 29, and p. 53, § 28, respectively). In principle, therefore, it is not for the Court to express an opinion contrary to that of the Federal Department of Justice and Police and the Federal Council on the compatibility of the judicially ordered tapping of Mr Kopp’s telephone with sections 66(1 bis ) and 77 of the FCPA.", "60. Moreover, the Court cannot ignore the opinions of academic writers and the Federal Court’s case-law on the question, which the Government cited in their memorial (see paragraphs 38–39 above).", "In relation to paragraph 2 of Article 8 of the Convention and other similar clauses, the Court has always understood the term “law” in its “substantive” sense, not its “formal one”, and has in particular included unwritten law therein (see the above-mentioned Kruslin and Huvig judgments, pp. 21–22, § 29 in fine, and pp. 53–54, § 28 in fine, respectively).", "61. In short, the interference complained of had a legal basis in Swiss law.", "– “Quality of the law”", "62. The second requirement which emerges from the phrase “in accordance with the law” – the accessibility of the law – does not raise any problem in the instant case.", "63. The same is not true of the third requirement, the law’s “foreseeability” as to the meaning and nature of the applicable measures.", "64. The Court reiterates in that connection that Article 8 § 2 requires the law in question to be “compatible with the rule of law”. In the context of secret measures of surveillance or interception of communications by public authorities, because of the lack of public scrutiny and the risk of misuse of power, the domestic law must provide some protection to the individual against arbitrary interference with Article 8 rights. Thus, the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and conditions on which public authorities are empowered to resort to any such secret measures (see, as the most recent authority, the above-mentioned Halford judgment, p. 1017, § 49).", "65. The Government submitted that the relevant legislation taken as a whole and the case-law of the Federal Court warranted the conclusion that the telephone tapping ordered in the instant case did in fact satisfy the requirement of foreseeability, as defined by the European Court.", "66. The Court must therefore examine the “quality” of the legal rules applicable to Mr Kopp in the instant case.", "67. It notes in the first place that the telephone lines of the applicant’s law firm were tapped pursuant to sections 66 et seq. of the FCPA (see paragraph 25 above) and that he was monitored as a third party.", "Under section 66(1 bis ) of the FCPA, “… third parties may also be monitored if specific facts give rise to the presumption that they are receiving or imparting information intended for the accused or suspect or sent by him. Persons who, by virtue of section 77, may refuse to give evidence shall be exempt.”", "Section 77 of the FCPA provides: “… lawyers … cannot be required to give evidence about secrets confided to them on account of their … profession.”", "68. On the face of it, the text seems clear and would appear to prohibit the monitoring of a lawyer’s telephone lines when he is neither suspected nor accused. It is intended to protect the professional relations between a lawyer and his clients through the confidentiality of telephone conversations.", "69. In the present case, moreover, the President of the Indictment Division adverted to that principle of the law, since the order of 23 November 1989 (see paragraph 18 above) states: “the lawyers’ conversations are not to be taken into account.” Similarly the Federal Public Prosecutor’s Office mentioned it in the letter of 9 March 1990 informing the applicant that his telephone lines had been tapped (see paragraph 25 above) and the Federal Council likewise referred to it in its decision of 30 June 1993 (see paragraph 31 above).", "70. However, as the Court has already observed (see paragraph 52 above), all the telephone lines of Mr Kopp’s law firm were monitored from 21 November to 11 December 1989.", "71. The Government sought to resolve this contradiction by referring to the opinions of academic writers and the Federal Court’s case-law to the effect that legal professional privilege covered only matters connected with a lawyer’s profession. They added that Mr Kopp, the husband of a former member of the Federal Council, had not had his telephones tapped in his capacity as a lawyer. In the instant case, in accordance with Swiss telephone-monitoring practice, a specialist Post Office official had listened to the tape in order to identify any conversations relevant to the proceedings in progress, but no recording had been put aside and sent to the Federal Public Prosecutor’s Office.", "72. The Court, however, is not persuaded by these arguments.", "Firstly, it is not for the Court to speculate as to the capacity in which Mr Kopp had had his telephones tapped, since he was a lawyer and all his law firm’s telephone lines had been monitored.", "Secondly, tapping and other forms of interception of telephone conversations constitute a serious interference with private life and correspondence and must accordingly be based on a “law” that is particularly precise. It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated (see the above-mentioned Kruslin and Huvig judgments, p. 23, § 33, and p. 55, § 32, respectively).", "In that connection, the Court by no means seeks to minimise the value of some of the safeguards built into the law, such as the requirement at the relevant stage of the proceedings that the prosecuting authorities’ telephone-tapping order must be approved by the President of the Indictment Division (see paragraphs 18 and 35 above), who is an independent judge, or the fact that the applicant was officially informed that his telephone calls had been intercepted (see paragraph 25 above).", "73. However, the Court discerns a contradiction between the clear text of legislation which protects legal professional privilege when a lawyer is being monitored as a third party and the practice followed in the present case. Even though the case-law has established the principle, which is moreover generally accepted, that legal professional privilege covers only the relationship between a lawyer and his clients, the law does not clearly state how, under what conditions and by whom the distinction is to be drawn between matters specifically connected with a lawyer’s work under instructions from a party to proceedings and those relating to activity other than that of counsel.", "74. Above all, in practice, it is, to say the least, astonishing that this task should be assigned to an official of the Post Office’s legal department, who is a member of the executive, without supervision by an independent judge, especially in this sensitive area of the confidential relations between a lawyer and his clients, which directly concern the rights of the defence.", "75. In short, Swiss law, whether written or unwritten, does not indicate with sufficient clarity the scope and manner of exercise of the authorities’ discretion in the matter. Consequently, Mr Kopp, as a lawyer, did not enjoy the minimum degree of protection required by the rule of law in a democratic society. There has therefore been a breach of Article 8.", "(ii) Purpose and necessity of the interference", "76. Having regard to the above conclusion, the Court, like the Commission, does not consider it necessary to review compliance with the other requirements of paragraph 2 of Article 8 in this case.", "II. Alleged violation of Article 13 of the Convention", "77. Article 13 of the Convention provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "78. Mr Kopp expressly stated that he did not intend to pursue this complaint before the Court, and the Court considers that it is not required to consider it of its own motion.", "III. application of Article 50 of the Convention", "79. Under Article 50 of the Convention,", "“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "80. Mr Kopp claimed 550,000 Swiss francs (CHF) for pecuniary damage on account of the effects that publication of the fact that his law firm’s telephone lines had been tapped had had on his professional activities and his firm’s good name. He also claimed CHF 1,000 for non-pecuniary damage, on the ground that the monitoring of his telephone lines had seriously perturbed his relations with his family and the members of his firm.", "81. The Government maintained that the amounts claimed were excessive and that the applicant had not adduced evidence of either the existence of pecuniary damage or a causal connection between any violation of the Convention and such damage. Furthermore, if the applicant had lost clients, it was not because of the telephone tapping in issue but for other reasons, such as the fact that he had been convicted of fraud and forging securities or the fact that his name had been struck off the roll of members of the Bar.", "As regards non-pecuniary damage, the Government submitted that if the Court were to find a violation, that would constitute sufficient just satisfaction.", "82. The Delegate of the Commission submitted that compensation should be awarded for loss of income, but left the amount to the Court’s discretion. He was of the view that the compensation claimed for non-pecuniary damage was justified.", "83. As regards pecuniary damage, the Court considers that Mr Kopp was not able to prove the existence of a causal connection between the interception of his telephone calls and the alleged loss. As to non-pecuniary damage, the Court considers that the finding of a violation of Article 8 constitutes sufficient compensation.", "B. Costs and expenses", "84. The applicant also claimed CHF 67,640 in respect of his costs and expenses for the proceedings in the Swiss courts and CHF 58,291 in respect of those he had incurred for the proceedings before the Convention institutions. He further sought CHF 174,000 for research he had conducted himself and for out-of-pocket expenses.", "85. The Government submitted that if the Court were to find a violation, an award of CHF 21,783 for costs and expenses would satisfy the requirements of Article 50. If the finding of a violation concerned only one of the two complaints raised by the applicant, it would be appropriate for the Court to reduce that amount in an equitable proportion.", "86. The Delegate of the Commission left the amount to be awarded for costs and expenses to the Court’s discretion.", "87. On the basis of the information in its possession and its case-law on this question, and taking into account the fact that only the applicant’s complaint under Article 8 of the Convention has given rise to the finding of a violation, as the applicant expressly stated that he no longer wished to pursue the complaint relating to Article 13 of the Convention (see paragraph 78 above), the Court decides, on an equitable basis, to award the applicant the sum of CHF 15,000.", "C. Default interest", "88. According to the information available to the Court, the statutory rate of interest applicable in Switzerland at the date of adoption of the present judgment is 5% per annum." ]

[ "2. The applicant, Mr Mohammed Imran Saber, is a Norwegian national who was born in 1978 and lives in Oslo. He was represented before the Court by Mr J.C. Elden, a lawyer practising in Oslo.", "3. The Government were represented by their Agent, Ms H. Busch at the Attorney General’s Office (Civil Matters), assisted by Ms L. Tvedt, an associate at the same office.", "The circumstances of the case", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. In connection with an investigation into a criminal case against two persons for, among other things, conspiracy to murder the applicant – who, being a possible victim of an alleged crime, was accordingly an “aggrieved party” ( fornærmet ) in the sense that that term is employed in the domestic criminal procedural law – the applicant’s smart phone was seized by the police on 23 November 2015. A mirror-image copy of the phone was captured, as the police wished to search it in order to shed light on possible conflicts between the suspects and the applicant. The phone was returned to the applicant. When the phone had been taken, the applicant stated that it contained his correspondence with two lawyers defending him ( forsvarsadvokater ) in another criminal case, in which he was a suspect.", "6. Since the applicant had given information to the effect that the phone contained communications between the applicant and his lawyers, there were reasons to believe that some of the content of the mirror image copy would be exempt from seizure under Articles 204 and 119 of the Code of Criminal Procedure (see paragraph 29 below). On 4 January 2016 the prosecuting authority therefore decided to submit the mirror image copy to the Oslo City Court ( tingrett ) under the procedure set out in the last paragraph of Article 205, which the authority assumed applied by analogy. The prosecuting authority requested that the City Court peruse the mirror image copy and decide which parts of the data on it were subject to legal professional privilege (LPP) and which parts could be given to the police to search. At the same time the prosecuting authority declared that they had waived the seizure of those parts of the material that contained correspondence with the two above defence counsel or with the other counsel who assisted the applicant in his role as an aggrieved party in the case concerning conspiracy to murder ( bistandsadvokat ).", "7. In the course of the continued proceedings before the City Court, the views of the parties were obtained. The prosecuting authority, counsel for the applicant in respect of his role as an aggrieved party, as well as defence counsel for the suspects in the case relating to conspiracy to murder, were given the opportunity to file submissions. Counsel for the applicant as an aggrieved party stated that the mirror image copy also contained confidential correspondence with other lawyers.", "8. In a letter of 5 April 2016 the Oslo City Court listed the keywords that it proposed using in its perusal of the mirror image copy, in order to sift out data subject to LPP. The City Court suggested at the same time that it be assisted by a technical expert from the Oslo police. It was emphasised that the technical expert should not be associated with the investigation and was to sign a declaration of confidentiality.", "9. In her reply of 9 April 2016, counsel for the applicant as an aggrieved party stated that she disagreed. She requested that a formal decision be given as to how to proceed with the search on the data on the mirror image copy. In addition, she argued that particular limitations to the prosecuting authority’s right to seize data applied when that data belonged to witnesses (which was the formal status of the applicant in the case relating to conspiracy to murder) and not to the persons charged.", "10. In a letter of 8 August 2016 the Oslo City Court stated that the court would therefore not be assisted by an Oslo police technician in perusing the mirror image copy. The City Court would instead engage external technical assistance.", "11. By letters of 30 August and 2 September 2016, the prosecuting authority objected to the engagement of external assistance by the City Court, as they feared that it could lead to the destruction of evidence. By letter of 29 September 2016, counsel for the applicant as an aggrieved party submitted that an attempt by the City Court to seek assistance from police officers in perusing the mirror image copy would breach Article 8 of the Convention.", "12. By letter of 20 January 2017 to the Oslo City Court, the prosecuting authority made reference to a Supreme Court ( Høyesterett ) decision rendered – in an unrelated case – four days earlier; on 16 January 2017 (see paragraphs 30-40 below). Based on the decision, the prosecuting authority requested the return of the mirror image copy so that they could themselves examine it in order to assess which parts would be exempt from seizure. By letter of 10 February 2017, counsel for the applicant as an aggrieved party objected to the procedure proposed by the prosecuting authority, considering that it was for the City Court to examine the mirror image copy and filter out the data that should be exempt from seizure on account of LPP.", "13. On 6 March 2017 the Oslo City Court declined jurisdiction for examining the mirror image copy in order to assess which data should not be subject to seizure. The City Court gave decisive weight to the Supreme Court’s decision of 16 January 2017, and found that that decision prescribed that it was for the police to carry out that kind of filtering. It accordingly returned the mirror image copy to the police for examination and assessment of whether the different data on it could be seized in accordance with Articles 203 et seq. of the Code of Criminal Procedure (see paragraph 29 below).", "14. The applicant appealed to the Borgarting High Court ( lagmannsrett ) against the City Court’s decision. He also sought a stay of execution of the City Court’s decision pending the outcome of the appeal. The latter request was turned down by the City Court.", "15. In its decision of 12 June 2017, the High Court initially noted that the case concerned the procedure for perusing a data carrier that had already been seized by the police. Specifically, the prosecuting authority had, by analogy with the third paragraph of Article 205 of the Code of Criminal Procedure (see paragraph 29 below), requested that an examination be carried out by the City Court in order to filter out the data which were subject to LPP and therefore exempt from seizure (which meant that the police would also not be entitled to search the data, then possibly deciding on their seizure); it was not a case in which seizure had been decided and the applicant subsequently requested that it be lifted pursuant to Article 208 (ibid.).", "16. The applicant had principally argued that he, by virtue of the letters initially sent from the Oslo City Court in which that court had proceeded on the grounds that it was competent to peruse the mirror image copy with the assistance of an external technician, had a vested right to have that procedure followed. The High Court concluded on this point that the City Court had not taken any decisions to the effect that the applicant had acquired any rights relating to the procedure. It was therefore incumbent on the High Court to decide on the correct procedure.", "17. Turning to this question of the correct procedure, the High Court took as its starting point the first section of Article 204 of the Code of Criminal Procedure, according to which documents about whose contents a witness would be entitled to refuse to testify were exempt from seizure (see paragraph 29 below). According to Article 119 a court was not entitled to take statements from lawyers about matters that had been vouchsafed to them in their capacity as lawyers. The High Court observed that conversations and messages between lawyers and clients enjoyed solid protection under the Code of Criminal Procedure and Article 8 of the Convention.", "18. The High Court went on to examine the relevant Supreme Court case-law, in particular the Supreme Court’s decisions of 27 March 2013 (published in Norsk Retstidende ( Rt ) 2013-968); 11 October 2013 (Rt ‑ 2013 ‑ 1282); 27 January 2015 (Rt-2015-81); and 16 January 2017 (see paragraphs 30-40 below).", "19. The instant case, the High Court observed, did not concern seizure of documents at a lawyer’s office or a lawyer’s premises. It was likely, however, that the mirror image copy comprised occasional communications between the applicant and his lawyers. There was still no information on whether such communications formed any sizeable part of the total data content of the copy.", "20. According to the High Court, it was the prosecuting authority that had the primary competence to take decisions on seizure, as well as the primary responsibility for ensuring that seizures were not decided in respect of data that were exempt from seizure under the Code of Criminal Procedure. It observed that in its decision of 16 January 2017 the Supreme Court had carried out a thorough examination of the relevant legal sources, including the case-law of this Court with regard to Article 8 of the Convention.", "21. In the High Court’s view the City Court had rightly concluded that the prosecuting authority had the competence to peruse the data on the mirror image copy. When carrying out such examination, the prosecuting authority would have to sift out any data that could be exempt from seizure. Any such data would, without any further inspection, have to be returned to the applicant or deleted. Data in respect of which the question whether they might be exempt from seizure could be raised would have to be transmitted uninspected to the City Court so that that court could peruse them pursuant to the application by analogy of the third paragraph of Article 205 of the Code of Criminal Procedure (see paragraph 29 below).", "22. Moreover, the High Court observed that the exemption from seizure under Articles 204 and 119 of the Code of Criminal Procedure (see paragraph 29 below) was absolute; it applied regardless of the owner of the object in question. Accordingly, the fact that the smart phone in the instant case belonged to the aggrieved party and not, for instance, to an accused, could not lead to any other conclusion than that which followed from the Supreme Court’s decision of 16 January 2017 (see paragraphs 30-40 below).", "23. Lastly, the High Court noted that the City Court’s decision of 6 March 2017 (see paragraph 13 above) had been based on the prosecuting authority’s initial transmission of the mirror image copy to the City Court to enable the latter to peruse the data on it. In so doing the City Court had not taken any decision on items possibly to be seized or on details concerning the examination of such items. Such questions therefore fell outside the ambit of the appeal proceedings. The High Court nonetheless remarked that it had not been shown that the perusal could only be effected by searching for particular keywords. A keyword search would, however, have to be carried out in order to reveal which data were exempt from seizure. Reference was made to the Supreme Court’s decision of 16 January 2017, with further reference to, inter alia, the decision reported in Rt-2015-81 (see paragraphs 30-40 below).", "24. Relying on the above considerations, the High Court unanimously rejected the appeal.", "25. On 25 June 2017 the applicant appealed to the Supreme Court against the High Court’s decision. He also applied for the implementation of the High Court’s decision to be suspended pending the outcome of the appeal. The latter request was turned down by the City Court.", "26. On 30 June 2017 the Supreme Court’s Appeals Leave Committee ( Høyesteretts ankeutvalg ), in a summary decision, unanimously concluded that the appeal against the High Court’s decision clearly had no prospects of success and therefore rejected it.", "27. The mirror image copy was thereafter returned to the police for search. This search was then carried out by the police themselves, without any control by the regional court at this stage. The procedure was described in a report from police officer E.S.R. of 9 November 2017. The report stated, inter alia, the following:", "“The seizure has been the subject of court proceedings, as Saber [(the applicant)] claimed that there are data items exempt from seizure on the phone, including legal correspondence with his defence counsel, attorney [Ø.S.] and attorney [P.D.]. Furthermore, attorney [S.E.] was appointed as counsel for Saber as aggrieved party on 30 September 2015 and it has also emerged that there is correspondence with her on Saber’s phone.", "On the basis of decisions from the court, it has been decided, in consultation with [L.P.], who is responsible for the prosecution ( påtaleansvarlig ), that correspondence with the above-mentioned attorneys and lawyer’s offices shall be removed from the mirror image copy which is to be examined by the police. It has also been decided that if the examination reveals contact that has not been captured ( fanget opp ), this shall not be examined.”", "The report stated, moreover, that the work with filtering out correspondence had been carried out by police officer A.K. at the Section of Digital Policework ( Seksjon for digitalt politiarbeid ) and specified the methods she had employed for that purpose.", "28. The parties have not informed the Court of any further proceedings involving the data on the applicant’s smart phone or of the further proceedings in respect of the case in which the applicant was the aggrieved party. The criminal proceedings against the applicant ended with his acquittal on 11 March 2019." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "The Code of Criminal Procedure", "29. The 1981 Code of Criminal Procedure ( straffeprosessloven ), as in force at the relevant time, included the following provisions:", "Article 119", "“Without the consent of the person entitled to the preservation of secrecy, the court may not receive any statement from clergymen in the state church, priests or pastors in registered religious communities, lawyers, defence counsel in criminal cases, conciliators in matrimonial cases, medical practitioners, psychologists, chemists, midwives or nurses about anything that has been confided to them in their official capacity. ...", "This prohibition no longer applies if the statement is needed to prevent an innocent person from being punished. ...”", "Article 203", "“Objects that are deemed to be significant as evidence may be seized until a legally enforceable judgment takes effect. The same applies to objects that are deemed to be liable to confiscation or to a claim for surrender by an aggrieved person. ...”", "Article 204", "“Documents or any other items whose contents a witness may refuse to testify about under Articles 117 to 121 and 124 to 125, and which are in the possession either of a person who can refuse to testify or of a person who has a legal interest in keeping them secret, cannot be seized. In so far as a duty to testify may be imposed in certain cases under the said provisions, a corresponding power to order a seizure shall apply.", "The prohibition in the first paragraph does not apply to documents or any other items that contain confidences between persons who are suspected of being accomplices to the criminal act [in question]. Nor does it prevent documents or any other items being removed from an unlawful possessor to enable them to be given to the person entitled thereto.”", "Article 205", "“A decision relating to the seizure of an object that the possessor will not surrender voluntarily may be taken by the prosecuting authority. The decision shall as far as possible be in writing and specify the nature of the case, the purpose of the seizure, and what it shall include. An oral decision shall as soon as possible be rendered in writing. The provisions of Article 200, first paragraph, shall apply correspondingly.", "When the prosecuting authority finds that there are special grounds for doing so, it may bring the question of seizure before a court. The provisions of the second to the fourth sentences of the first paragraph of this Article and of Article 209 shall apply correspondingly to the court’s decision relating to seizure. The provisions of the first and third paragraphs of Article 208 shall also apply when seizure has been decided on by the court pursuant to this paragraph.", "Documents or any other item in respect of which the possessor is not obliged to testify except by special court order may not be seized without a court order unless such a special order has already been made. If the police wish to submit documents to the court for a decision as to whether they may be seized, the said documents shall be sealed in a closed envelope in the presence of a representative of the possessor.”", "Article 208", "“Any person who is affected by a seizure may immediately or subsequently demand that the question of whether it should be maintained be brought before a court. The prosecuting authority shall ensure that any such person shall be informed of this right.", "The provision of the first sentence of the first paragraph shall apply correspondingly when any person who has voluntarily surrendered any object for seizure demands that it be returned.", "The decision of the court shall be made by an order.”", "The Supreme Court’s decision of 16 January 2017", "30. In its decision of 16 January 2017, the Supreme Court considered the procedures governing the search of an extensive collection of e-mails collected from an accused person. After deciding on the specific case before it, the Supreme Court proceeded to attempt a general clarification of how, in procedural terms, to deal with situations where the police were examining seized data, only to discover that they included correspondence with lawyers.", "31. The Supreme Court stated that counsel in the case before it had argued that if the police, when perusing data items, came across correspondence with lawyers, the perusal would have to cease immediately and all items on the data carriers in question would have to be transmitted to the City Court so that that court could separate the data which were exempt from seizure from those which could be searched by the prosecuting authority and possibly seized, should they be found to contain evidence of interest. Counsel had further submitted that the latter procedure would also have to be followed where the accused person claimed that the materials collected included data that were exempt from seizure.", "32. The Supreme Court disagreed with counsel’s submissions. In the Supreme Court’s view, one could not set out as a general rule that any discovery of data exempt from seizure, or any claim that such data existed among those collected, would always automatically ( uten videre ) lead to the prosecuting authority having to discontinue its perusal of the collected data.", "33. Reference was made to the fact that the primary competence to decide on seizures lay with the prosecuting authority. It was, accordingly, the prosecuting authority which had the primary responsibility for ensuring that no seizure was ordered beyond what was authorised in the Code of Criminal Procedure. From this it was inferred that the prosecuting authority also had first of all to have powers to examine any data collected; it was an evident precondition, however, that in so doing the prosecuting authority would filter out and return or delete whatever data it could not lawfully keep.", "34. The preparatory works to the Code of Criminal Procedure had stated that when carrying out a search the police had to look through documents in order to be able to take a decision on whether they should be seized, and that it was unavoidable that the police in that context might happen to look through documents that would be exempt from seizure.", "35. The Supreme Court reiterated that in its decision of 27 March 2013 (Rt-2013-968) it had found that the aforementioned statements in the preparatory works could not apply to a situation where a lawyer’s office was being searched and where the lawyer had maintained that documents in the office were subject to legal professional privilege. In such circumstances there would be a presumption that documents and other data were subject to confidentiality and should therefore be submitted to the City Court without any prior perusal or filtering.", "36. In the Supreme Court’s view, however, the procedure established in respect of searches and seizures of data in lawyer’s offices was not to be transposed to any situation where lawyer’s correspondence was discovered as part of a larger collection of data or where someone alleged that the data that had been collected comprised such correspondence. In such situations, it was, according to the Supreme Court, more natural to apply procedures based on the guidelines which it had drawn up with regard to conversations recorded during surveillance.", "37. Specifically, in its decision of 27 January 2015 (Rt-2015-81), the Supreme Court had indicated that in situations where the prosecuting authority, when reviewing surveillance data, became aware that a conversation involved or might involve a lawyer and his or her client, it could not itself listen through the conversation or read through transcripts of it in order to assess whether the conversation was subject to LPP. The Supreme Court found in that case that a system which entailed that the data at issue in such circumstances had to be sent to the regional court for examination would be compatible with Article 8 of the Convention. It did not pronounce on whether other types of filtering arrangements could be put in place meeting the requirements of that provision.", "38. Returning to the case before it concerning e-mails, the Supreme Court assumed that an arrangement for filtering out data covered by LPP based on the guidelines drawn up on surveillance data in the above-mentioned decision would meet the requirements deriving from this Court’s case-law under Article 8 of the Convention. If one accepted that the police were the first to peruse the data in question, the domestic courts’ task would be limited to examining the data submitted to them by the police.", "39. The Supreme Court refrained from commenting on how the police could sort the data, either in the case before it or in general, beyond pointing out that criteria for searching the data should be chosen in cooperation with counsel for the defence or counsel appointed to safeguard the interests of persons unaware that a search was being carried out, when a procedure to the latter effect was carried out.", "40. Lastly, the Supreme Court stated that the existing legal regulation was not suited to technological developments which facilitated the seizure of large batches of data saved, for example, on computers, mobile phones and memory sticks. The Supreme Court noted that some of the difficulties had been commented on in the preparatory works relating to a proposal of a new Criminal Code, and in its view a more detailed regulation appeared pertinent ( synes nærliggende ).", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "41. The applicant complained that allowing the police to carry out an introductory examination of his smart phone in order to filter out data which might be exempt from seizure due to LPP, entailed a breach of Article 8 of the Convention, which reads:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "The parties’ submissions", "42. The Government accepted that search and seizure of the applicant’s smart phone had amounted to an interference with his right to respect for his correspondence under Article 8 of the Convention.", "43. As to whether the interference had been in accordance with the law, the Government maintained that the search and seizure had had a formal basis in the Code of Criminal Procedure and that the law had been accessible and foreseeable to the applicant. The relevant provisions of the Code of Criminal Procedure had been formulated with sufficient precision. Although the relevant legislation had not been applied as it was in the instant case until the Supreme Court’s decision of 16 January 2017, the procedures described in that decision had not contradicted any earlier Supreme Court rulings. Legal interpretation developed through case-law, and it was essential for national courts to be able to facilitate such development in order to ensure that the law was applied correctly to cases not specifically dealt with in the relevant legislation. This held especially true in a case such as the present one, where the legislation did not deal with the issue at hand owing to technological developments unforeseen by the lawmakers.", "44. Furthermore, the Government argued that the search and seizure of the applicant’s smart phone had pursued the legitimate aim of preventing disorder and crime and had been necessary in order to obtain evidence in the criminal investigation in which the applicant was the aggrieved party. They also submitted that the Code of Criminal Procedure contained adequate and effective safeguards against abuse in respect of decisions to search as well as to seize objects. The preliminary filtering and deletion of LPP data had been carried out by a police officer who had not been involved in investigating the instant case.", "45. The applicant submitted that the Supreme Court’s decision in the present case represented a departure from well-established practice in terms of filtering out data subject to LPP, such that he could not to a reasonable degree foresee the consequences; nor had the law been accessible to him.", "46. Furthermore, the applicant argued that the impugned measure was not necessary in a democratic society because the relevant legislation and practice had not afforded the applicant adequate and effective safeguards against abuse. The applicant maintained that the case concerned not judicial authorisation before a seizure but the procedure regarding the seizure of a batch of data partly made up of information exempt from seizure, and how to filter that information out.", "Admissibility", "47. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "Merits", "48. The Court observes at the outset that it is undisputed between the parties that the search of the applicant’s smart phone and/or the mirror image copy of it, entailed an interference with his right to respect for his correspondence under the first paragraph of Article 8 of the Convention, and considers that this cannot be called into question (see for example, mutatis mutandis, Laurent v. France, no. 28798/13, § 36, 24 May 2018). Moreover, the Court notes that the search was carried out towards the applicant in his capacity of being the aggrieved party in the pertinent investigation (see paragraph 5 above).", "49. As to the question of whether the interference was in accordance with the law under the second paragraph of that provision, the Court observes that the decisions relating to the search as such, and ultimately any seizure of data from the applicant’s smart phone, had a formal basis in law, namely in the provisions on searches in Chapter 15 and those on seizures in Chapter 16 of the Code of Criminal Procedure (see paragraph 29 above). In so far as it had been established that access to correspondence between the applicant and his lawyers could be obtained via the mirror image copy of his smart phone, the crux of the case is, however, whether the law in question had sufficient quality and offered sufficient safeguards to ensure that LPP was not compromised during the search and seizure procedure.", "50. In that context, the Court reiterates that Article 8 § 2 of the Convention requires the law in question to be “compatible with the rule of law”. In the context of searches and seizures, the domestic law must provide some protection to the individual against arbitrary interference with Article 8 rights. Thus, the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances and conditions under which public authorities are empowered to resort to any such measures. Moreover, search and seizure represent a serious interference with private life, home and correspondence and must accordingly be based on a “law” that is particularly precise. It is essential to have clear, detailed rules on the subject (see Sallinen and Others v. Finland, no. 50882/99, §§ 82 and 90, 27 September 2005).", "51. Furthermore, the Court has acknowledged the importance of specific procedural guarantees when it comes to protecting the confidentiality of exchanges between lawyers and their clients and of LPP (see, inter alia, Sommer v. Germany, no. 73607/13, § 56, 27 April 2017, and Michaud v. France, no. 12323/11, § 130, ECHR 2012). It has emphasised that professional secrecy is the basis of the relationship of trust existing between a lawyer and his client and that the safeguarding of professional secrecy is in particular the corollary of the right of a lawyer’s client not to incriminate himself, which presupposes that the authorities seek to prove their case without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the “person charged” (see, for example, André and Another v. France, no. 18603/03, § 41, 24 July 2008). However, in its case-law, the Court has distinguished between the question of whether Article 8 has been violated in respect of investigative measures and the question of possible ramifications of a finding to that effect on rights guaranteed under Article 6 (see, for example, among many other authorities, Dragoș Ioan Rusu v. Romania, no. 22767/08, § 52, 31 October 2017; and Dumitru Popescu v. Romania (no. 2), no. 71525/01, § 106, 26 April 2007, with further references). Moreover, the Court has stressed that it is clearly in the general interest that any person who wishes to consult a lawyer should be free to do so under conditions which favour full and uninhibited discussion and that it is for that reason that the lawyer-client relationship is, in principle, privileged. It has not limited that consideration to matters relating to pending litigation only and has emphasised that, whether in the context of assistance for civil or criminal litigation or in the context of seeking general legal advice, individuals who consult a lawyer can reasonably expect that their communication is private and confidential (see, for example, Altay v. Turkey (no. 2), no. 11236/06, §§ 49-51, 9 April 2019, and the references therein).", "52. Proceeding to the circumstances of the instant case, the Court first of all observes that there was agreement that the mirror image copy of the applicant’s smart phone contained correspondence between him and his lawyers (see paragraph 6 above). It also observes that the Code of Criminal Procedure did not include any express provisions originally designed to prescribe the procedure for such situations in which LPP could be at stake. There was however initial common ground between the police and the applicant that in order to ensure that LPP was not compromised, the data on the mirror image copy had to be sifted out by the City Court and any LPP data removed before the police could search the remainder. The legal basis for that procedure would be an application by analogy of Article 205 § 3 of the Code of Criminal Procedure (see paragraphs 6 and 29 above). The City Court appears to have shared this understanding and proceeded accordingly in order to have the filtering carried out (see paragraphs 6-7 above). Nonetheless, there was, in the absence of any express and specific rules on the matter, subsequent disagreement as to how the City Court could go about it in practical terms, including whether it could seek assistance from the police (see paragraphs 8-11 above).", "53. Thereupon, while the City Court was proceeding to sift out the LPP data in the applicant’s case, the Supreme Court gave a decision in an entirely unrelated case in which the applicant had played no part, which indicated that it was – contrary to the assumptions of the applicant, the police and the City Court – in fact the police itself that should filter the data, seemingly because the Supreme Court had found that another analogy than that until then assumed correct in the instant case was more pertinent, namely application by analogy of the procedures relating to surveillance data (see paragraphs 37-38 above). After obtaining the views of the persons involved in the applicant’s case concerning that new decision, the City Court concluded that owing to the Supreme Court’s fresh directions it should abandon its filtering procedure and send the mirror image copy back to the police. Thereafter the police itself examined it as described in its report of 9 November 2017 (see paragraph 27 above).", "54. Having regard to the foregoing observations, the Court does not find it necessary in the instant case to consider whether or under what circumstances credible claims for LPP in respect of specific data carriers entail that they must be sent to a court or another third-party independent of the police and prosecution in order to have any data covered by LPP deleted before the latter may proceed to search the data carriers. In the instant case it suffices for the Court to make the following observations.", "55. Firstly, the Court takes note of the circumstance that the proceedings relating to the filtering of LPP in cases such as the present one lacked a clear basis in the Code of Criminal Procedure right from the outset, which rendered them liable to disputes such as that which followed the Supreme Court’s decision of 16 January 2017. Secondly, the actual form of the proceedings could hardly be foreseeable to the applicant – notwithstanding that he was allowed to object (see paragraph 12 above) – given that they were effectively reorganised following that decision. Thirdly, and most importantly, the Court finds that the Government have not rebutted the applicant’s contention that subsequently to the Supreme Court’s finding in its decision of 16 January 2017 that the police should themselves examine the data carriers in cases such as the present one, the decision to apply that instruction to the applicant’s ongoing case, which became final with the Supreme Court’s decision of 30 June 2017 (see paragraph 26 above), meant that no clear and specific procedural guarantees were in place to prevent LPP from being compromised by the search of the mirror image copy of his phone. The Supreme Court had not given any instructions as to how the police were to carry out the task of filtering LPP, apart from indicating that search words should be decided upon in consultation with counsel; even though the claim lodged for LPP in the instant case was as such undisputedly valid, the mirror image copy was effectively just returned to the police for examination without any practical procedural scheme in place for that purpose. As to the report of 9 November 2017 (see paragraph 27 above), it described the deletion of data in the applicant’s case, but did not describe any clear basis or form for the procedure either.", "56. In this context the Court emphasises that it has noted that the Government did indeed point to the procedural safeguards in place relating to searches and seizures in general; the Court’s concern is, however, the lack of an established framework for the protection of LPP in cases such as the present one. On that point, the Court observes in passing that the Supreme Court, in its decision of 16 January 2017 in fine, also pointed to the lack of provisions suited to situations where LPP data form part of batches of digitally stored data, and indicated that it would be natural to regulate the exact issue that arose in the instant case by way of formal provisions of law (see paragraph 40 above). The Court thus notes that the issue that arose in the instant case was not as such owing to the Supreme Court’s findings in that case, rather it originated in the lack of appropriate regulation as pointed out by that court.", "57. Although no such regulation was in place in the applicant’s case, the Court has no basis to decide whether or not LPP was actually compromised in his case, nor has the applicant submitted that it was. In the Court’s view, however, the lack of foreseeability in the instant case, due to the lack of clarity in the legal framework and the lack of procedural guarantees relating concretely to the protection of LPP, already fell short of the requirements flowing from the criterion that the interference must be in accordance with the law within the meaning of Article 8 § 2 of the Convention. Having drawn that conclusion, it is not necessary for the Court to review compliance with the other requirements under that provision.", "58. In the light of the above, the Court finds that there has been a violation of Article 8 of the Convention.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "59. In his application to the Court the applicant complained that the proceedings relating to the search of his smart phone amounted to a violation of the rights secured to him under Article 6 § 3 of the Convention. In his subsequent observations the applicant informed the Court that he had meanwhile been acquitted of the criminal charges against him (see paragraph 28 above), and admitted that he could therefore no longer claim to be a victim of a violation of Article 6. The Court does not find grounds for calling this into question and accordingly finds that the complaint under Article 6 must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "60. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "61. The applicant claimed non-pecuniary damages to an amount assessed at the Court’s discretion. He did not claim pecuniary damages.", "62. The Government did not contest that, should the Court find a violation of Article 8 of the Convention, there might be grounds for awarding just satisfaction in respect of non-pecuniary damage.", "63. The Court, in view of the relatively technical nature of the violation found and the circumstances of the case, considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non ‑ pecuniary damage which the applicant may have suffered.", "Costs and expenses", "64. The applicant also claimed 101,937.50 Norwegian kroner –approximately EUR 9,500 for costs incurred before the Court.", "65. The Government accepted that the applicant should be entitled to recover his costs in the event that the Court found a violation of Article 8 of the Convention, but maintained that the amount should be reduced since the applicant had accepted that he had no valid claim under Article 6.", "66. The Court notes that the applicant requested legal aid, but did not upon its request submit the requisite information. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the parties’ submissions and the above criteria, the Court considers it reasonable to award the sum of EUR 7,000 for the proceedings before the Court, plus any tax that may be chargeable to the applicant.", "Default interest", "67. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE PARTICULAR CIRCUMSTANCES OF THE CASE", "6. Mr Niemietz lives in Freiburg im Breisgau, Germany, where he practises as a lawyer ( Rechtsanwalt ).", "7. On 9 December 1985 a letter was sent by telefax from the Freiburg post office to Judge Miosga of the Freising District Court ( Amtsgericht ). It related to criminal proceedings for insulting behaviour ( Beleidigung ) pending before that court against Mr J., an employer who refused to deduct from his employees ’ salaries and pay over to the tax office the Church tax to which they were liable. The letter bore the signature of one Klaus Wegner - possibly a fictitious person -, followed by the words \"on behalf of the Anti-clerical Working Group ( Antiklerikaler Arbeitskreis ) of the Freiburg Bunte Liste (multi-coloured group)\" and a post-office box number. It read as follows:", "\"On 10.12.1985 the trial against Mr [J.] will take place before you. We, the Anti-clerical Working Group of the Freiburg Bunte Liste, protest most strongly about these proceedings.", "In the FRG, the Church, on the basis of the Hitler concordat and in violation of the State ’ s duty to maintain neutrality, enjoys most extensive privileges. As a result, every non-Christian citizen of this State has to suffer disadvantages and daily annoyance. Among other things, the FRG is the only State which acts as Church-tax collector. It requires employers, whether they be Christians or not, to pay over Church tax for their Christian employees and thus relieve the Church of financial administrative work. [J.] has, for years, courageously and consistently refused to support the financing of the Church in this way and has made an appropriate arrangement whereby the Church tax of his Christian employees is paid without his own involvement.", "This attempt - in a State which counts the separation of State and Church among its basic principles - to insist upon just such a separation has not only exposed [J.] to persistent vexation and interferences on the part of State authorities, culminating in the tax office employing coercive measures, such as attachment, to collect from him Church tax which his employees had already paid a long time previously. It has in addition involved him - when he called these underhand methods by their name - in the present proceedings for alleged insulting behaviour.", "Were it your task as the competent judge to conduct an unbiased examination of this ‘ case of insulting behaviour ’, then it must be said that you have not only failed to carry out this task, but also abused your office in order to try - by means which give a warning and a reminder of the darkest chapters of German legal history - to break the backbone of an unloved opponent of the Church. It was with extreme indignation that we learned of the compulsory psychiatric examination which was conducted on your instructions, and to which [J.] has had to submit in the meantime. We shall use every avenue open to us, in particular our international contacts, to bring to public notice this action of yours, which is incompatible with the principles of a democratic State subscribing to the rule of law.", "We shall follow the further course of the proceedings against [J.] and expect you to abandon the path of terrorisation which you have embarked upon, and to reach the only decision appropriate in this case - an acquittal.\"", "8. The applicant had, as a city councillor, been chairman for some years of the Freiburg Bunte Liste, which is a local political party. He had also played a particularly committed role in, although he had never been a member of, its Anti-clerical Working Group, which sought to curtail the influence of the Church.", "Until the end of 1985 certain of the mail for the Bunte Liste, which had as its address for correspondence only the post-office box number that had been given in the letter to Judge Miosga, had been delivered to the office ( Bürogemeinschaft ) of the applicant and a colleague of his; the latter had also been active on behalf of the party and had acted for it professionally.", "9. On 13 January 1986 the Director of the Munich I Regional Court ( Landgericht ) requested the Munich public prosecutor ’ s office ( Staatsanwaltschaft ) to institute criminal proceedings against Klaus Wegner for the offence of insulting behaviour, contrary to Article 185 of the Criminal Code. Attempts to serve a summons on him were unsuccessful. The applicant ’ s colleague refused to give any information about Klaus Wegner or his whereabouts and other attempts to identify him failed.", "10. In the context of the above-mentioned proceedings the Munich District Court issued, on 8 August 1986, a warrant to search the law office of the applicant and his colleague and the homes of Ms D. and Ms G. The warrant read as follows:", "\"Preliminary investigations against Klaus Wegner concerning Article 185 of the Criminal Code", "Decision", "The search of the following residential and business premises for documents which reveal the identity of ‘ Klaus Wegener ’ [sic] and the seizure of such documents is ordered.", "1. Office premises shared by the lawyers Gottfried Niemietz and ...,", "2. Home (including adjoining rooms and cars) of Ms [D.] ...,", "3. Home (including adjoining rooms and cars) of Ms [G.]", "Reasons", "On 9 December 1985 a letter insulting Judge Miosga of the Freising District Court was sent by telefax from the Freiburg post office. It was sent by the Anti-clerical Working Group of the Freiburg Bunte Liste. The letter was signed by one Klaus Wegener.", "Until now it has not been possible to identify the signatory. The Freiburg Bunte Liste could not be contacted by mail otherwise than through a box number. Until the end of 1985 such mail was forwarded to the office of Niemietz and ..., and since the start of 1986 to Ms [D.]. It has therefore to be assumed that documents throwing light on the identity of Klaus Wegener can be found at the premises of the above-mentioned persons.", "Furthermore, it is to be assumed that there are such documents in the home of Ms [G.], the Chairwoman of the Freiburg Bunte Liste.", "For these reasons, it is to be expected that evidence will be found in the course of a search of the premises indicated in this decision.\"", "11. The search of the law office, the need for which the investigating authorities had first tried to obviate by questioning a witness, was effected by representatives of the Freiburg public prosecutor ’ s office and the police on 13 November 1986. According to a police officer ’ s report drawn up on the following day, the premises were entered at about 9.00 a.m. and inspected in the presence of two office assistants. The actual search began at about 9.15 a.m., when the applicant ’ s colleague arrived, and lasted until about 10.30 a.m. The applicant himself arrived at 9.30 a.m. He declined to give any information as to the identity of Klaus Wegner, on the ground that he might thereby expose himself to the risk of criminal prosecution.", "Those conducting the search examined four filing cabinets with data concerning clients, three files marked respectively \"BL\", \"C.W. -Freiburg District Court ...\" and \"G. - Hamburg Regional Court\" and three defence files marked respectively \"K.W. - Karlsruhe District Court ...\", \"Niemietz et al. - Freiburg District Court ...\" and \"D. - Freiburg District Court\". According to the applicant, the office ’ s client index was also looked at and one of the files in question was its \"Wegner defence file\". Those searching neither found the documents they were seeking nor seized any materials. In the proceedings before the Commission, the applicant stated that he had been able to put aside in time documents pointing to the identity of Klaus Wegner and had subsequently destroyed them.", "12. The homes of Ms D. and Ms G. were also searched; documents were found that gave rise to a suspicion that the letter to Judge Miosga had been sent by Ms D. under an assumed name.", "13. On 10 December 1986 the Chairman of the Freiburg Bar Association, who had been informed about the search by the applicant ’ s colleague, addressed a formal protest to the President of the Munich District Court. The Chairman sent copies to the Bavarian Minister of Justice and the Munich Bar Association and invited the latter to associate itself with the protest.", "In a reply of 27 January 1987, the President of the Munich District Court stated that the search was proportionate because the letter in question constituted a serious interference with a pending case; hence no legal action on the protest was necessary.", "14. The criminal proceedings against \"Klaus Wegner\" were later discontinued for lack of evidence.", "15. On 27 March 1987 the Munich I Regional Court declared an appeal ( Beschwerde ) lodged by the applicant, pursuant to Article 304 of the Code of Criminal Procedure, against the search warrant to be inadmissible, on the ground that it had already been executed (\" wegen prozessualer Überholung \"). It considered that in the circumstances there was no legal interest in having the warrant declared unlawful. It had not been arbitrary, since there had been concrete indications that specified material would be found. There was no ground for holding that Article 97 of the Code of Criminal Procedure (see paragraph 21 below) had been circumvented: the warrant had been based on the fact that mail for the Freiburg Bunte Liste had for some time been delivered to the applicant ’ s office and it could not be assumed that that mail could concern a lawyer-client relationship. In addition, personal honour was not so minor a legal interest as to render the search disproportionate. There could be no question in the present case of preventing a lawyer from freely exercising his profession.", "16. On 28 April 1987 the applicant lodged a constitutional complaint ( Verfassungsbeschwerde ) against the search warrant of 8 August 1986 and the Munich I Regional Court ’ s decision of 27 March 1987. On 18 August a panel of three judges of the Federal Constitutional Court ( Bundesverfassungsgericht ) declined to accept the complaint for adjudication, on the ground that it did not offer sufficient prospects of success.", "The Federal Constitutional Court also found that the Munich I Regional Court ’ s decision of 27 March 1987 that the applicant ’ s appeal was inadmissible was not objectionable in terms of constitutional law. Furthermore, as regards the actual execution of the warrant, Mr Niemietz had not exhausted the remedy available to him under section 23(1) of the Introductory Act to the Courts Organisation Act ( Einführungsgesetz zum Gerichtsverfassungsgesetz ).", "III. CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES", "22. In its judgment of 21 September 1989 in Joined Cases 46/87 and 227/88 Hoechst v. Commission [1989] European Court Reports (\"ECR\") 2859 at 2924, the Court of Justice of the European Communities stated as follows:", "\"Since the applicant has also relied on the requirements stemming from the fundamental right to the inviolability of the home, it should be observed that, although the existence of such a right must be recognized in the Community legal order as a principle common to the laws of the Member States in regard to the private dwellings of natural persons, the same is not true in regard to undertakings, because there are not inconsiderable divergences between the legal systems of the Member States in regard to the nature and degree of protection afforded to business premises against intervention by the public authorities.", "No other inference is to be drawn from Article 8(1) (art. 8-1) of the European Convention on Human Rights which provides that: ‘ Everyone has the right to respect for his private and family life, his home and his correspondence ’. The protective scope of that article is concerned with the development of man ’ s personal freedom and may not therefore be extended to business premises. Furthermore, it should be noted that there is no case-law of the European Court of Human Rights on that subject.", "None the less, in all the legal systems of the Member States, any intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, must have a legal basis and be justified on the grounds laid down by law, and, consequently, those systems provide, albeit in different forms, protection against arbitrary or disproportionate intervention. The need for such protection must be recognized as a general principle of Community law. In that regard, it should be pointed out that the Court has held that it has the power to determine whether measures of investigation taken by the Commission under the ECSC Treaty are excessive (judgment of 14 December 1962 in Joined Cases 5 to 11 and 13 to 15/62 San Michele and Others v. Commission [1962] ECR 449).\"", "This statement was affirmed in the same court ’ s judgments of 17 October 1989 in Case 85/87 Dow Benelux v. Commission [1989] ECR 3137 at 3157 and Joined Cases 97 to 99/87 Dow Chemical Ibérica and Others v. Commission [1989] ECR 3165 at 3185-6." ]

[ "II. RELEVANT DOMESTIC LAW", "17. The search complained of was ordered in the context of criminal proceedings for insulting behaviour, an offence punishable by imprisonment for a maximum, where no physical violence is involved, of one year or a fine (Article 185 of the Criminal Code).", "18. Article 13 para. 1 of the Basic Law ( Grundgesetz ) guarantees the inviolability of the home ( Wohnung ); this provision has been consistently interpreted by the German courts in a wide sense, to include business premises (see, in particular, the Federal Constitutional Court ’ s judgment of 13 October 1971 - Entscheidungssammlung des Bundesverfassungsgerichts, vol. 32, p. 54).", "19. Article 103 of the Code of Criminal Procedure provides that the home and other premises ( Wohnung und andere Räume ) of a person who is not suspected of a criminal offence may be searched only in order to arrest a person charged with an offence, to investigate indications of an offence or to seize specific objects and provided always that there are facts to suggest that such a person, indications or objects is or are to be found on the premises to be searched.", "20. Search warrants may be challenged, as regards their lawfulness, in proceedings instituted under Article 304 of the Code of Criminal Procedure and, as regards their manner of execution, in proceedings instituted under section 23(1) of the Introductory Act to the Courts Organisation Act.", "21. In Germany a lawyer is an independent organ in the administration of justice and an independent counsel and representative in all legal matters.", "An unauthorised breach of secrecy by a lawyer is punishable by imprisonment for a maximum of one year or a fine (Article 203 para. 1(3) of the Criminal Code). A lawyer is entitled to refuse to give testimony concerning any matter confided to him in a professional capacity (Article 53 para. 1(2) and (3) of the Code of Criminal Procedure). The last-mentioned provisions, in conjunction with Article 97, prohibit, with certain exceptions, the seizure of correspondence between lawyer and client.", "PROCEEDINGS BEFORE THE COMMISSION", "23. In his application (no. 13710/88) lodged with the Commission on 15 February 1988, Mr Niemietz alleged that the search had violated his right to respect for his home and correspondence, guaranteed by Article 8 (art. 8) of the Convention, and had also, by impairing the goodwill of his law office and his reputation as a lawyer, constituted a breach of his rights under Article 1 of Protocol No. 1 (P1-1). In addition, he submitted that, contrary to Article 13 (art. 13) of the Convention, he had no effective remedies before German authorities in respect of those complaints.", "24. By decision of 5 April 1990, the Commission declared the complaints under Article 8 (art. 8) of the Convention and Article 1 of Protocol No. 1 (P1-1) admissible and the remainder of the application inadmissible.", "In its report of 29 May 1991 (Article 31) (art. 31), the Commission expressed the unanimous opinion that there had been a violation of Article 8 (art. 8) of the Convention and that no separate issue arose under Article 1 of Protocol No. 1 (P1-1). The full text of the Commission ’ s opinion is reproduced as an annex to this judgment [*].", "FINAL SUBMISSIONS MADE TO THE COURT", "25. At the hearing, the Agent of the Government invited the Court to find that the Federal Republic of Germany had not violated Article 8 (art. 8) of the Convention in the present case.", "The applicant, for his part, requested the Court to hold that the search of his office had constituted a breach of the Convention.", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION", "26. Mr Niemietz alleged that the search of his law office had given rise to a breach of Article 8 (art. 8) of the Convention, which reads as follows:", "\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"", "This submission was accepted by the Commission, on the basis that the search constituted an unjustified interference with the applicant ’ s private life and home.", "A. Was there an \"interference\"?", "27. In contesting the Commission ’ s conclusion, the Government maintained that Article 8 (art. 8) did not afford protection against the search of a lawyer ’ s office. In their view, the Convention drew a clear distinction between private life and home, on the one hand, and professional and business life and premises, on the other.", "28. In arriving at its opinion that there had been an interference with Mr Niemietz ’ s \"private life\" and \"home\", the Commission attached particular significance to the confidential relationship that exists between lawyer and client. The Court shares the Government ’ s doubts as to whether this factor can serve as a workable criterion for the purposes of delimiting the scope of the protection afforded by Article 8 (art. 8). Virtually all professional and business activities may involve, to a greater or lesser degree, matters that are confidential, with the result that, if that criterion were adopted, disputes would frequently arise as to where the line should be drawn.", "29. The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of \"private life\". However, it would be too restrictive to limit the notion to an \"inner circle\" in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.", "There appears, furthermore, to be no reason of principle why this understanding of the notion of \"private life\" should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world. This view is supported by the fact that, as was rightly pointed out by the Commission, it is not always possible to distinguish clearly which of an individual ’ s activities form part of his professional or business life and which do not. Thus, especially in the case of a person exercising a liberal profession, his work in that context may form part and parcel of his life to such a degree that it becomes impossible to know in what capacity he is acting at a given moment of time.", "To deny the protection of Article 8 (art. 8) on the ground that the measure complained of related only to professional activities - as the Government suggested should be done in the present case - could moreover lead to an inequality of treatment, in that such protection would remain available to a person whose professional and non-professional activities were so intermingled that there was no means of distinguishing between them. In fact, the Court has not heretofore drawn such distinctions: it concluded that there had been an interference with private life even where telephone tapping covered both business and private calls (see the Huvig v. France judgment of 24 April 1990, Series A no. 176-B, p. 41, para. 8, and p. 52, para. 25); and, where a search was directed solely against business activities, it did not rely on that fact as a ground for excluding the applicability of Article 8 (art. 8) under the head of \"private life\" (see the Chappell v. the United Kingdom judgment of 30 March 1989, Series A no. 152-A, pp. 12-13, para. 26, and pp. 21-22, para. 51.)", "30. As regards the word \"home\", appearing in the English text of Article 8 (art. 8), the Court observes that in certain Contracting States, notably Germany (see paragraph 18 above), it has been accepted as extending to business premises. Such an interpretation is, moreover, fully consonant with the French text, since the word \"domicile\" has a broader connotation than the word \"home\" and may extend, for example, to a professional person ’ s office.", "In this context also, it may not always be possible to draw precise distinctions, since activities which are related to a profession or business may well be conducted from a person ’ s private residence and activities which are not so related may well be carried on in an office or commercial premises. A narrow interpretation of the words \"home\" and \"domicile\" could therefore give rise to the same risk of inequality of treatment as a narrow interpretation of the notion of \"private life\" (see paragraph 29 above).", "31. More generally, to interpret the words \"private life\" and \"home\" as including certain professional or business activities or premises would be consonant with the essential object and purpose of Article 8 (art. 8), namely to protect the individual against arbitrary interference by the public authorities (see, for example, the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 15, para. 31). Such an interpretation would not unduly hamper the Contracting States, for they would retain their entitlement to \"interfere\" to the extent permitted by paragraph 2 of Article 8 (art. 8-2); that entitlement might well be more far-reaching where professional or business activities or premises were involved than would otherwise be the case.", "32. To the above-mentioned general considerations, which militate against the view that Article 8 (art. 8) is not applicable, must be added a further factor pertaining to the particular circumstances of the case. The warrant issued by the Munich District Court ordered a search for, and seizure of, \"documents\" - without qualification or limitation - revealing the identity of Klaus Wegner (see paragraph 10 above). Furthermore, those conducting the search examined four cabinets with data concerning clients as well as six individual files (see paragraph 11 above); their operations must perforce have covered \"correspondence\" and materials that can properly be regarded as such for the purposes of Article 8 (art. 8). In this connection, it is sufficient to note that that provision does not use, as it does for the word \"life\", any adjective to qualify the word \"correspondence\". And, indeed, the Court has already held that, in the context of correspondence in the form of telephone calls, no such qualification is to be made (see the above-mentioned Huvig judgment, Series A no. 176-B, p. 41, para. 8, and p. 52, para. 25). Again, in a number of cases relating to correspondence with a lawyer (see, for example, the Schönenberger and Durmaz v. Switzerland judgment of 20 June 1988, Series A no. 137, and the Campbell v. the United Kingdom judgment of 25 March 1992, Series A no. 233), the Court did not even advert to the possibility that Article 8 (art. 8) might be inapplicable on the ground that the correspondence was of a professional nature.", "33. Taken together, the foregoing reasons lead the Court to find that the search of the applicant ’ s office constituted an interference with his rights under Article 8 (art. 8).", "B. Was the interference \"in accordance with the law\"?", "34. The applicant submitted that the interference in question was not \"in accordance with the law\", since it was based on suspicions rather than facts and so did not meet the conditions laid down by Article 103 of the Code of Criminal Procedure (see paragraph 19 above) and since it was intended to circumvent the legal provisions safeguarding professional secrecy.", "35. The Court agrees with the Commission and the Government that that submission must be rejected. It notes that both the Munich I Regional Court and the Federal Constitutional Court considered that the search was lawful in terms of Article 103 of the aforesaid Code (see paragraphs 15-16 and 19 above) and sees no reason to differ from the views which those courts expressed.", "C. Did the interference have a legitimate aim or aims?", "36. Like the Commission, the Court finds that, as was not contested by the applicant, the interference pursued aims that were legitimate under paragraph 2 of Article 8 (art. 8-2), namely the prevention of crime and the protection of the rights of others, that is the honour of Judge Miosga.", "D. Was the interference \"necessary in a democratic society\"?", "37. As to whether the interference was \"necessary in a democratic society\", the Court inclines to the view that the reasons given therefor by the Munich District Court (see paragraph 10 above) can be regarded as relevant in terms of the legitimate aims pursued. It does not, however, consider it essential to pursue this point since it has formed the opinion that, as was contended by the applicant and as was found by the Commission, the measure complained of was not proportionate to those aims.", "It is true that the offence in connection with which the search was effected, involving as it did not only an insult to but also an attempt to bring pressure on a judge, cannot be classified as no more than minor. On the other hand, the warrant was drawn in broad terms, in that it ordered a search for and seizure of \"documents\", without any limitation, revealing the identity of the author of the offensive letter; this point is of special significance where, as in Germany, the search of a lawyer ’ s office is not accompanied by any special procedural safeguards, such as the presence of an independent observer. More importantly, having regard to the materials that were in fact inspected, the search impinged on professional secrecy to an extent that appears disproportionate in the circumstances; it has, in this connection, to be recalled that, where a lawyer is involved, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6 (art. 6) of the Convention. In addition, the attendant publicity must have been capable of affecting adversely the applicant ’ s professional reputation, in the eyes both of his existing clients and of the public at large.", "E. Conclusion", "38. The Court thus concludes that there was a breach of Article 8 (art. 8).", "II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)", "39. Mr Niemietz also argued that, by impairing his reputation as a lawyer, the search constituted a violation of Article 1 of Protocol No. 1 (P1-1), which provides:", "\"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.\"", "40. Having already taken into consideration, in the context of Article 8 (art. 8), the potential effects of the search on the applicant ’ s professional reputation (see paragraph 37 above), the Court agrees with the Commission that no separate issue arises under Article 1 of Protocol No. 1 (P1-1).", "III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION", "41. Article 50 (art. 50) of the Convention reads:", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "42. In a letter filed on 16 December 1991 (see paragraph 4 above), the applicant requested the Court, taking into account in particular the damage caused to the reputation of his practice, to award him under Article 50 (art. 50) compensation of a type and amount to be determined by the Court in its discretion.", "43. The Court is unable to accede to that request.", "The applicant has, in the first place, not established that the breach of Article 8 (art. 8) caused him pecuniary damage. If and in so far as it may have occasioned non-pecuniary damage, the Court considers, like the Delegate of the Commission, that its finding of a violation constitutes of itself sufficient just satisfaction therefor. Finally, although Mr Niemietz stated at the hearing that his request extended to his costs and expenses referable to the proceedings in Germany and in Strasbourg, he has supplied no particulars of that expenditure." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The first applicant was born in 1968 and lives in Joensuu. He is a member of the Finnish Bar. The other 17 applicants were his clients at the relevant time (“the client applicants”).", "8. On 26 January 1999 the police conducted a search – it is not entirely clear of which premises – based on the suspicion that the first applicant's clients X and Y (not client applicants before the Court) had committed aggravated debtor's fraud. In the course of that search X managed to destroy the original of a promissory note which the police had attempted to seize and which may have been relevant to the financial arrangements underlying the suspected offence.", "9. At the time the first applicant's status in the investigation had been that of a witness. On 22 February 1999 the police requested him to attend for questioning in this capacity. This request was apparently cancelled before he had taken any action thereon.", "10. A police officer in charge of the criminal investigations granted a search warrant and on 2 March 1999 seven officers of the National Bureau of Investigation ( keskusrikospoliisi, centralkriminalpolisen ), assisted by a tax inspector and an enforcement official ( ulosottomies, utmätningsman ), searched the first applicant's law office, flat and vehicles. This search warrant was likewise based on the suspicion that X and Y had committed aggravated debtor's fraud but the first applicant was now indicated as a suspect, namely that he had aided and abetted the offences by drafting certain documents.", "11. Under the terms of the warrant the search aimed at examining “the documents, computers and archives of the law office” as well as the first applicant's flat and vehicles “so as to investigate the share transactions by the limited liability company [H.] in 1998 and to find material relating to those transactions”.", "12. During the search of his law office all of the first applicant's client files were allegedly perused. The police also examined all floppy disks and examined his note books pertaining to his meetings with clients. In addition, the hard disks in the office computers were copied: two were copied on the spot and two computers, including the one used by the first applicant himself, were seized for later disk-copying on police premises. Those computers were returned on 4 March 1999.", "13. The first applicant's computer also contained software for electronic mail, including his private and professional messages.", "14. A fellow member of the Bar assisted the first applicant during part of the search.", "15. On 4 March 1999 the first applicant requested the District Court ( käräjäoikeus, tingsrätten ) of Joensuu to revoke the seizure as being unlawful. On 24 March 1999 the court nevertheless maintained it, noting that the first applicant was suspected of aiding and abetting aggravated debtor's dishonesty.", "16. On 11 May 1999 the Court of Appeal ( hovioikeus, hovrätten ) of Eastern Finland upheld the District Court's decision and on 25 November 1999 the Supreme Court ( korkein oikeus, högsta domstolen ) refused the first applicant leave to appeal.", "17. On 4 May 1999 the police certified the return of three of the four hard disks and that they had destroyed any copies thereof. They stated however that they would retain a copy of the fourth hard disk until the lawfulness of the seizure had been finally decided or until the material could be destroyed for any other reason.", "18. In June 1999 three of the applicants (nos. 2-3 and 8 ) requested the District Court to revoke the seizure of the copy of the fourth hard disk (which contained material relating to their instructions to the first applicant ) and to order the police to compensate their costs. They argued that the seizure had been unlawful from the outset. At any rate, the copy in question was of no relevance to the pre-trial investigation concerning X and Y.", "19. In its rejoinder the National Bureau of Investigation referred to the Court of Appeal's decision of 11 May 1999 in which the seizure had been found lawful. Moreover, the hard disks had only been subjected to a targeted search and they were able to search information concerning only relevant companies and individuals. Only the potentially relevant client files in the law office had been perused. The search and seizure had thus not been of wholesale nature. The tax and enforcement officials who had witnessed the search had been – and remained – under a duty to keep secret any information thereby obtained.", "20. On 17 June 1999 the District Court agreed with the three client applicants and ordered that the copy of the fourth hard disk be returned. It rejected, as not being based on law, the applicants'claim for compensation in respect of their costs. The applicants appealed on this point, whereas the police appealed against the revocation order.", "21. In its submissions to the Court of Appeal the National Bureau of Investigation listed the contents of the copied hard disk. For example, specific mention was made of what appears to have been the promissory note which the police had been looking for (and had found). The submissions indicated the debtor's and the creditor's names as well as the amount of the debt. The National Bureau of Investigation furthermore explained that the material on the relevant hard disk had been copied to a so-called optical disk which could in any case not be returned as it also contained internal police data. The submissions by the Bureau were apparently not ordered to be kept confidential.", "22. On 27 January 2000 the Court of Appeal declined to examine the parties'appeals, considering that the matter had been resolved res judicata in the first set of proceedings ending with the Supreme Court's decision of 25 November 1999. The Supreme Court granted leave to appeal to the three client applicants in question.", "23. On 3 March 2000 the public prosecutor charged, among others, X and Y with aggravated debtor's dishonesty but decided to press no charges against the first applicant, having found no evidence of any crime.", "24. On 20 April 2001 the Supreme Court ruled that although a final decision had already been rendered in respect of another appellant, it did not prevent the courts from examining similar appeals filed by other parties. The case was referred back to the Court of Appeal which, on 4 October 2001, revoked the District Court's decision on the basis that the seizure had been lawful.", "25. The three client applicants in question were again granted leave to appeal to the Supreme Court. On 18 October 2002 it revoked the seizure in so far as it pertained to information which those applicants had given to the first applicant.", "26. The Supreme Court found it undisputed that the copied hard disk contained information relating to the three client applicants'instructions to the first applicant. It had not been argued that this information was not protected by counsel's secrecy obligation under Chapter 17, section 23 of the Code of Judicial Procedure. Nor did the information in question pertain to any suspicion that the first applicant or any one else had committed a crime.", "27. The Supreme Court accepted that the police had been entitled by Chapter 4, section 1 of the Coercive Measures Act ( pakkokeinolaki, tvångsmedelslagen 450/1987) to seize the first applicant's hard disk and make a copy thereof. Technical reasons and practical needs (the fact that the police had been obliged at the time of the search to copy the whole hard disk) did not however permit any deviation from the prohibition on seizure of privileged material. The police should therefore have returned the computer files immediately or destroyed them. The appellants were awarded reasonable compensation for their costs and expenses.", "28. On 11 November 2002 the Chief Enforcement Officer of Vantaa confirmed that the copy of the hard disk had been destroyed on that day.", "29. On 22 August 2003 the Deputy Chancellor of Justice ( valtioneuvoston apulaisoikeuskansleri, justitiekansleradjointen i statsrådet ) issued his decision in response to a petition by the Finnish Bar Association concerning, inter alia, the alleged unlawfulness of the coercive measures against the first applicant. He found it established that the tax inspector and the enforcement official had attended the search in their respective capacity as a witness and expert. He nevertheless concluded, inter alia, that from the point of view of foreseeability of domestic law, as required by Article 8 of the Convention, the relationship between the Coercive Measures Act ( Chapter 4, section 2, subsection 2), the Code of Judicial Procedure ( Chapter 17, section 23, subsection 1 (4)) and the Advocates Act (section 5 c) was somewhat unclear and permitted very diverging interpretations as to the extent to which privileged material could be subject to search and seizure. The Deputy Chancellor therefore requested the Ministry of Justice to consider whether there was a need to amend the relevant legislation.", "III. THIRD PARTY INTERVENTION", "53. The Finnish Bar Association ( Finlands Advokatförbund, Finlands Advokatförbund ) noted that the case did not meet a single criterion for the lawful execution of search and seizure as set out in the case law of the Court. Further, under Finnish legislation, there are no provisions affording a legal remedy against a search warrant issued by the police. A search may be carried out on the premises of a person to whom a confidentiality obligation applies provided that the object to be seized may be found there. The threshold for the execution of a search is low in the extreme and the execution of a search in and of itself interferes with the right and obligation of secrecy of a person to whom a confidentiality obligation applies.", "54. The wording of the instructions pertaining to the search in the present case was rather expansive and no attempt was made to attend to the advocate's confidentiality obligation. Disregard of this obligation is particularly manifest in the participation of a tax inspector and an enforcement official in the search. The confidentiality obligation of advocates was also disregarded in respect of the seizures executed in connection with the search. The hard disks of the law office's computers, floppy disks and several notebooks pertaining to meetings with clients were seized in connection with the latter search, in addition to which data on the office secretary's computer was copied. Subsequent to the seizure, the material was not e.g. sealed and consigned for safekeeping until a court could rule on the lawfulness of the seizure.", "55. In terms of the confidentiality obligation, the possibility of submitting the issue of a seizure to the court for review as provided for in the Coercive Measures Act had in this case remained a dead letter. All the information deemed confidential by the advocate and his clients had been disclosed prior to the court proceedings, as the authorities examined the seized material without waiting for a court to rule on the issue.", "56. The Association further maintained that the police could have availed themselves of the procedure provided for in the Advocates Act, wherein the searched material would have been examined by an outside advocate who would have determined which material was related to the pre-trial investigation being conducted by the police and which was not. This procedure would have allowed for the upholding of the advocate's confidentiality obligation as well as the client's right to confidentiality." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "1. General conditions for searches and seizures", "30. Under the Coercive Measures Act (450/1987) the police may conduct a search, inter alia, if there is reason to suspect that an offence has been committed and provided the maximum sentence applicable exceeds six months'imprisonment ( Chapter 5, section 1). The search warrant is issued by the police themselves.", "31. A search may also be conducted on the premises of a person other than the one who is under reasonable ( todennäköinen, sannolik ) suspicion of having committed an offence of the aforementioned nature, provided the offence was committed on those premises or the suspect was apprehended there or if there are very strong reasons for assuming that a search of those premises will produce an object to be seized or other information pertaining to the offence ( Chapter 5, section 2). In order for an object to qualify for seizure there must be a reason to presume that it may serve as evidence in the criminal proceedings, that it may have been removed from someone by a criminal offence or that the court may order its forfeiture ( Chapter 4, section 1).", "32. A sealed letter or other private document which has been seized may only be opened by the head of investigation, by the prosecutor or by the court. In addition, only the investigators of the offence in question may examine such a document more closely. However, an expert or other person whose assistance is used in investigating the offence or who is otherwise heard in the case may examine the material, as directed by the head of investigation, by the prosecutor or by the court ( Chapter 4, section 8).", "33. Whenever possible, the officer in charge shall call a witness to attend the search. If deemed necessary, the officer may also seek the assistance of an expert or other person ( Chapter 5, section 4, subsection 1).", "34. The officer in charge may allow a complainant or his representative to attend a search in order to provide necessary information. The responsible officer must nonetheless ensure that a complainant or representative does not obtain any more information than necessary through the search ( Chapter 5, section 4, subsection 3).", "35. According to section 40 of the Pre-trial Investigation Act, only such evidence as may be considered relevant in the case shall be placed on record.", "36. As regards other evidence, it is the respondent Government's view that a police officer is under an obligation to respect the confidentiality requirement stipulated by section 17 of the Civil Servants Act ( valtion virkamieslaki, statstjänstemannalagen 750/94 ).", "37. Section 8 of the Pre-Trial Investigation Act ( esitutkintalaki, förundersökningslagen 449/1987) stipulates that in an investigation no one's rights shall be infringed any more than necessary for the achievement of its purpose. No one shall be placed under suspicion without due cause and no one shall be subjected to harm or inconvenience unnecessarily.", "38. Chapter 7, section 1 a, of the Coercive Measures Act provides that only such measures may be used which can be deemed justified in light of the seriousness of the offence under investigation, the importance of the investigation and the degree of interference with the rights of the suspect or other persons subject to the measures, as well as in light of any other pertinent circumstances.", "39. According to Chapter 4, section 11, a seizure shall be lifted as soon as it is no longer necessary. If charges have not been brought within four months of the seizure the court may extend it at the request of a police officer competent to issue arrest warrants.", "2. Particular conditions in respect of privileged material", "40. Chapter 4, section 2, subsection 2 of the Coercive Measures Act provides that a document shall not be seized for evidential purposes if it may be presumed to contain information in regard to which a person referred to in Chapter 17, section 23, of the Code of Judicial Procedure is not allowed to give evidence at a trial and provided that the document is in the possession of that person or the person for whose benefit the secrecy obligation has been prescribed. A document may nevertheless be seized if, under section 27, subsection 2 of the Pre-Trial Investigation Act, a person referred to in Chapter 17, Article 23, of the Code of Judicial Procedure would have been entitled or obliged to give evidence in the pre-trial investigation about the matter contained in the document.", "41. Under Chapter 17, section 23, subsection 1 of the Code of Judicial Procedure counsel may not testify in respect of what a client has told him or her for the purpose of pleading a case, unless the client consents to such testimony. Although subsection 3 provides for an exception to this secrecy obligation if the charges concern an offence carrying a minimum sentence of six years'imprisonment (or attempting or aiding and abetting such an offence), this exception does not extend to counsel for an accused.", "42. Under section 5 c (626/1995) of the Advocates Act ( laki asianajajista, lagen om advokater ) an advocate or his assistant shall not without due permission disclose the secrets of an individual or family or business or professional secrets which have come to his knowledge in the course of his professional activity. Breach of this confidentiality obligation shall be punishable in accordance with Chapter 38, section 1 or 2, of the Penal Code ( rikoslaki, strafflagen ), unless the law provides for a more severe punishment on another count.", "43. In their book “Pre-trial investigation and coercive measures” ( Esitutkinta ja pakkokeinot, Helsinki, 2002) Klaus Helminen, Kari Lehtola and Pertti Virolainen state (at page 742) that in the legal literature and in police practice a principle has been consistently followed whereby a search may not be performed in order for investigators to obtain documents that are subject to a seizure prohibition.", "44. The Ministry of Justice appointed a Working Group on Internet Aided Crimes ( tietoverkkorikostyöryhmä, arbetsgruppen för IT brottslighet ) which also considered the question of searches and seizures of computer files and computers by the police. On June 2003 the Working Group issued a report, which was sent out for comments to various interest groups and experts. On the basis of the working group's report and the comments given, the Ministry of Justice is expected to prepare a government bill.", "3. Remedies", "45. Chapter 4, section 13, of the Coercive Measures Act provides that at the request of a person whom the case concerns the court shall decide whether the seizure shall remain in force. A request which has been submitted to the court before its examination of the charges shall be considered within a week from its reception by the court. The court shall provide those with an interest in the matter an opportunity to be heard, but the absence of anyone shall not preclude a decision on the issue. A decision reviewing a seizure is subject to a separate appeal.", "46. According to section 118, subsection 3 of the Constitution ( perustuslaki, grundlagen 731/1999) everyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public function shall have the right to request that the civil servant or other person in charge of the public function be sentenced to a punishment and that the public organisation, official or other person in charge of a public function be held liable for damages, as provided in more detail by an Act. This section is equivalent to section 93 of the repealed Constitution Act of Finland of 1918 ( Suomen Hallitusmuoto, Regeringsform för Finland ), as in force at the relevant time.", "47. Until 31 December 1998, Chapter 24, section 2 of the Penal Code provided that if a search of premises was carried out by someone lacking the authority to do so, or if someone having such authority carried it out in an unlawful manner, he or she was to be sentenced to a fine or to imprisonment for a maximum of one year. According to Government Bill no. 6/1997, the provision was proposed to be repealed as “in cases where the above-mentioned act is committed by a public official in the performance of his or her official duties, Chapter 40, section 10 is applicable”.", "48. Chapter 40, section 10, subsection 1 of the Penal Code provides that if a public official, when acting in his office, intentionally in a manner other than that provided above in this Chapter violates or neglects to fulfil his official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not petty, he shall be sentenced for violation of official duties to a fine or to imprisonment for at most one year.", "49. Chapter 40, section 11 of the Penal Code provides that if a public official, when acting in his office, through carelessness or lack of caution, in a manner other than that referred to in section 5, subsection 2, violates or neglects to fulfil his or her official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not petty, he shall be sentenced for a negligent violation of official duties to a warning or to a fine.", "50. According to Chapter 1, section 14 of the Criminal Procedure Act ( laki oikeudenkäynnistä rikosasioissa, lag om rättegång i brottmål 689/1997), an injured party may bring a private prosecution only if the public prosecutor has decided not to press charges.", "51. Under the 1974 Damage Compensation Act ( vahingonkorvauslaki, skadeståndslagen 412/1974) proceedings may be brought against the State in respect of damage resulting from fault or neglect by its employees in the performance of their duties ( Chapters 3 and 4).", "C. Council of Europe recommendation", "52. Recommendation (2000) 21 of the Committee of Ministers to member states on the freedom of exercise of the profession of lawyer provides, inter alia, as follows:", "“Principle I - General principles on the freedom of exercise of the profession of lawyer", "... 6. All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer-client relationship. Exceptions to this principle should be allowed only if compatible with the rule of law. ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "57. The applicants complained that the search and seizure of privileged material had breached Article 8 of the Convention, which provides :", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The parties'submissions", "1. The applicants", "58. The first applicant complained under Article 8 of the Convention that the search and seizure of privileged material violated his right to respect for his private life, home and correspondence. Apart from documents relating to his clients'instructions, his private notes and electronic messages were also seized.", "59. The applicants nos. 1-3 and 8 complained that the search and seizure, including the retention by the police of a copy of the fourth hard disk violated their right to respect for their private life, family life and correspondence. The other applicants complained that the search and the short-term seizure which the police revoked of its own motion violated their right to respect for their private life, family life and correspondence.", "60. The applicants did not base their complaint on the possibility that the police might have used the information obtained through the search. They argued that their uncertainty in this respect must be taken into account in assessing the compatibility of the search with the requirements of Article 8.", "61. In so far as the seizure extended to material containing information in respect of which the first applicant was not allowed to testify, the applicants alleged that it was not in accordance with domestic law. In so far as the search sought to obtain such material for seizure, that interference was likewise in breach of domestic law. They referred to Chapter 4, section 2 of the Coercive Measures Act, which obliges the police to show circumspection when conducting a seizure. They argued that since a search may only be performed to find potentially admissible evidence the police are not authorised by law to conduct a search if the purpose is to find a document which is arguably of a privileged character.", "62. The applicants further argued that in the present circumstances the assistance which the tax inspector and enforcement official provided during the search raised a further question under Article 8. Further, the police did not fully respect its duty of secrecy as it disclosed some of that material in its appeal to the Court of Appeal.", "63. The applicants concluded that Finnish practice in coercive measures was very deficient in terms of oversight and legal safeguards. In the present case the authorities did not adhere to the procedure recommended in the legal literature. The applicants noted that in Finland no provision was made for involving an appointed representative of the Bar in any search and seizure of material relating to a member's practice.", "2. The Government", "64. The Government submitted that in respect of the first applicant, a search performed in his office may have constituted an interference within the meaning of Article 8 of the Convention. As regards the client applicants, the Government noted that correspondence with a lawyer falls under the protection of Article 8. However, the Government contested that there were any interference with the client applicants'rights. The Government argued that the applicants had not sufficiently substantiated their allegation that the retained copy of the fourth hard disk contained material which was unrelated to the offence under investigation. Furthermore, even if the disk did contain any material irrelevant to the investigated offence, that material could not have been used by the police.", "65. Were the Court to find that there was an interference with the right protected under Article 8, the Government noted that the first applicant was suspected of aggravated debtor's fraud and of aiding and abetting aggravated debtor's dishonesty. As the maximum penalty for an aggravated debtor's fraud is four years'imprisonment the search and seizure were in accordance with the law. In the Government's view a lawyer suspected of a severe offence cannot be treated differently from other suspects. The search and the seizure were carried out with a view to investigating a serious offence, which justified the interference with the privileged client-lawyer relationship.", "66. As regards the other applicants, the Government referred to section 34 of the Police Act, under which information concerning exclusively a person unrelated to the investigation shall be destroyed without delay, unless the material is needed for the investigation of the offence. They further noted that the police often resorted to the expertise of tax inspectors when investigating matters relating to accounting. Subject to the instructions given by the head of the investigation, such an expert or assistant could examine a sealed letter or other document. The impugned measures were therefore in accordance with law also in this respect.", "67. The Government further opined that the interference pursued the legitimate aim of preventing crime and protecting the rights and freedoms of others. The measures were proportionate to those aims, corresponded to a pressing social need and were accompanied by adequate and effective safeguards. They argued that it was necessary for the police to examine all of the material in the first applicant's office in order to find out which part of it was relevant to the investigation of the offence. The hard disks were subjected to a targeted search and only the potentially relevant client files in the law office were perused. The reason for retaining a copy of the fourth hard disk was thoroughly explained and reviewed in the national proceedings, and was relevant and sufficient also for the purposes of Article 8 § 2. Moreover, police officers were under an obligation to respect confidentiality.", "B. The Court's assessment", "1. Whether there was an interference", "68. The first applicant claimed that the search of his business and residential premises and the seizure of several documents had interfered with his right to respect for his private life, home and correspondence as guaranteed by Article 8 § 1. In this respect, the Government agreed that a search may have constituted an interference.", "69. The client applicants claimed that the search and seizure of privileged material interfered with their rights under Article 8 of the Convention. The Government contested the other applicants'view, arguing that even though the correspondence with a lawyer falls under the protection of Article 8, there had not been any interference with their rights within the meaning of Article 8 of the Convention.", "70. The Court would point out that, as it has now repeatedly held, the notion of “home” in Article 8 § 1 encompasses not only a private individual's home. It recalls that the word “ domicile ” in the French version of Article 8 has a broader connotation than the word “home” and may extend, for example, to a professional person's office. Consequently, “home” is to be construed as including also the registered office of a company run by a private individual, as well as a juristic person's registered office, branches and other business premises (see, inter alia, Buck v. Germany, no. 41604/98, § 31, 28 April 2005, Chappell v. the United Kingdom, judgment of 30 March 1989, Series A no. 152-A, pp. 12-13 and 21-22, §§ 26 and 51; Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251-B, §§ 2 9 - 31).", "71. In the present case, the searches and seizure ordered by the police concerned, inter alia, the law office owned and managed by the first applicant. The search warrants were issued by the officer in charge of the police investigation, in which the first applicant was first considered as a witness, but the second search warrant was based on the suspicion that he was suspected of having aided and abetted an offence of aggravated debtor's fraud allegedly committed by two of his clients (who are not applicants before the Court). It is undisputed that the police had copied a hard disk from one of the first applicant's computers and that the copy was kept by the police until a final court decision. The Court finds that the search by the police of the residential premises and the business premises of the first applicant, and the seizure of hard disks there, amounted to an interference with the right to respect for the first applicant's “home” and “correspondence”, as those terms have been interpreted in the Court's case- law ( Niemietz, cited above, § 30). It follows that the search and seizure also amounted to an interference with the right to respect for the client applicants'“correspondence” (see Niemietz, cited above, § 32).", "72. Consequently, the Court finds it unnecessary to determine whether, as it has found in several comparable cases (see, inter alia, Chappell, cited above, § 51; Niemietz, cited above, §§ 29-31), there has also been an interference with the applicants'right to respect for their private life as guaranteed by Article 8 § 1.", "73. The Court must therefore examine whether this interference was in conformity with the requirements of the second paragraph of Article 8, in other words whether it was “in accordance with the law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve the aim or aims in question.", "Was the interference justified", "(a) Was the interference” in accordance with the law”?", "74. The parties disagreed as to the description of domestic law. The applicants maintained that the search warrant was not in accordance with domestic law, as Chapter 4, section 2 of the Coercive Measures Act required the police to show circumspection when a lawyer was involved in the seizure. They further maintained that since a search could only be performed to find something which could be seized and used as evidence ( see Coercive Measures Act, Chapter 5, section 1), the police were not authorised under the law to conduct a search if the purpose was to find a document in respect of which an evidential or seizure prohibition might be applied.", "75. The Government contested this view, arguing that according to Chapter 5, section 1 of the Coercive Measures Act, a search could be carried out in order to seize an object which might be relevant in investigating an offence for which a penalty of more than six months'imprisonment was provided. In the present case where the first applicant was suspected of aggravated debtor's fraud and of aiding and abetting an offence of aggravated debtor's dishonesty, the search and seizure had been carried out for the purposes of investigating such a serious offence, which they submitted justified any interference with the confidentiality of the client-lawyer relationship that would normally enjoy special protection. In the Government's view, it was of no relevance in this context that the first applicant was a lawyer and that the search was carried out in his office.", "As regards the other applicants, the Government submitted that, according to section 34 of the Police Act, information exclusively concerning third parties had to be destroyed after review without delay, unless it was needed for the investigation of the offence. In their view, the impugned measures were in accordance with the law also in this respect.", "76. The Court notes that the expression “in accordance with the law”, within the meaning of Article 8 § 2 requires firstly that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law (see eg. Kopp v. Switzerland, judgment of 25 March 1998, Reports of Judgments and Decisions 1998 ‑ II, § 55).", "– Whether there was a legal basis in Finnish law", "77. The Court recalls that in accordance with the case-law of the Convention institutions, in relation to Article 8 § 2 of the Convention, the term “law” is to be understood in its “substantive” sense, not its “formal” one. In a sphere covered by written law, the “law” is the enactment in force as the competent courts have interpreted it (see, inter alia, Société Colas Est and Others v. France, no. 37971/97, § 43, ECHR 2002 ‑ III ). In this respect, the Court reiterates that its power to review compliance with domestic law is limited, it being in the first place for the national authorities, notably the courts, to interpret and apply that law (see, inter alia, Chappell, cited above, p. 23, § 54).", "78. In principle, therefore, it is not for the Court to express an opinion contrary to that of the domestic courts, which found that the search and seizure were based on the Coercive Measures Act and the Code on Judicial Procedure.", "79. In short, the interference complained of had a legal basis in Finnish law.", "– “Quality of the law”", "80. The second requirement which emerges from the phrase “in accordance with the law” – the accessibility of the law – does not raise any problem in the instant case.", "81. The same is not true of the third requirement, the “foreseeability” of the meaning and nature of the applicable measures.", "82. The Court reiterates in that connection that Article 8 § 2 requires the law in question to be “compatible with the rule of law”. In the context of searches and seizures, the domestic law must provide some protection to the individual against arbitrary interference with Article 8 rights. Thus, the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and conditions on which public authorities are empowered to resort to any such measures (see mutatis mutandis, Kopp v. Switzerland, judgment of 25 March 1998, Reports of Judgments and Decisions 1998 ‑ II, p. 541, § 64.", "83. The Court must examine the “quality” of the legal rules applicable to the applicants in the instant case.", "84. The Court notes in the first place that under the Coercive Measures Act, Chapter 4, section 2, subsection 2, a document shall not be seized for evidential purposes if it may be presumed to contain information in regard to which a person is not allowed to give evidence.", "85. Under Code of Judicial Procedure, Chapter 15, section 23, counsel may not testify in respect of what a client has told him or her for the purpose of pleading a case.", "86. Under the Advocates Act, section 5 c, an advocate shall not without due permission disclose the secrets of an individual or family or business or professional secrets which have come to his knowledge in the course of his professional activity.", "87. On the face of the above-mentioned provision of the Code of Judicial Procedure, the Court finds the text unclear as far as it concerns confidentiality. The above-mentioned domestic law does not state with the requisite clarity whether the notion of “ pleading a case ” covers only the relationship between a lawyer and his/her clients in a particular case or their relationship generally. The Court refers to a lawyer's general obligation of professional secrecy and confidentiality. In this respect the Court refers to the Recommendation (REC 2000/21) of the Committee of Ministers, according to which States should take all necessary measures to ensure the respect of the confidentiality of the client-lawyer relationship.", "88. The Government sought to resolve this by noting that in any case, the search and seizure were carried out for the purposes of investigation of a serious offence. A lawyer suspected of a severe crime could not, on their view, be treated differently from other suspects.", "89. The Court, however, is not persuaded by this argument. In the present case, hard disks were searched, copied and seized. They contained information passing between the first applicant and his clients, who had no role in the investigated offence. While the seized hard disks were returned to the first applicant, however, a copy of the fourth hard disk remained with the police for some considerable time. The Court notes that the search and seizure were rather extensive and is struck by the fact that there was no independent or judicial supervision.", "90. The Court would emphasise that search and seizure represent a serious interference with private life, home and correspondence and must accordingly be based on a “law” that is particularly precise. It is essential to have clear, detailed rules on the subject.", "91. In that connection, the Court notes that the relationship between the Coercive Measures Act, the Code of Judicial Procedure and the Advocates Act (read together) was somewhat unclear and gave rise to diverging views on the extent of the protection afforded to privileged material in searches and seizures, a situation which was identified also by the Deputy Chancellor of Justice of Finland.", "92. In sum, the Court finds that the search and seizure measures in the present case were implemented without proper legal safeguards. The Court concludes that, even if there could be said to be a general legal basis for the measures provided for in Finnish law, the absence of applicable regulations specifying with an appropriate degree of precision the circumstances in which privileged material could be subject to search and seizure deprived the applicants of the minimum degree of protection to which they were entitled under the rule of law in a democratic society (see, mutatis mutandis, Narinen v. Finland, no. 45027/98, § 36, 1 June 2004 ).", "93. The Court finds that in these circumstances it cannot be said that the interference in question was “in accordance with the law” as required by Article 8 § 2 of the Convention.", "94. There has therefore been a violation of Article 8 of the Convention.", "(b ) Purpose and necessity of the interference", "95. Having regard to the above conclusion, the Court does not consider it necessary to review compliance with the other requirements of Article 8 § 2 in this case (see e.g. Kopp, cited above, § 76).", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "96. The client applicants complained that the search and perusal of privileged material had breached Article 6 of the Convention, which provides:", "“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...", "3. Everyone charged with a criminal offence has the following minimum rights: ...", "(b) to have adequate time and facilities for the preparation of his defence;", "(c) to defend himself in person or through legal assistance of his own choosing ....”", "A. The parties'submissions", "1. The applicant", "97. The client applicants complained under Article 6 of the Convention and notably under § 3 (b) and (c) that the search and perusal of privileged material relating to their respective instructions violated their right to a fair hearing and an effective defence. Some of the applicants had instructed the first applicant to assist them in criminal proceedings in which the police investigation had been conducted by officers also participating in the search.", "98. As the same fairness guarantees in principle also apply prior to the actual court proceedings as well as in other than criminal proceedings, the search and seizure also violated the rights under Article 6 of those client applicants who had not already been charged at that moment. A situation whereby public officials can study privileged material relating to cases not yet heard by the courts and other authorities waters down the guarantee of equality of arms between the parties.", "99. The applicants relied on the wholesale character of the coercive measures, which were conducted without resorting to the assistance of an independent counsel appointed by the Bar Association, as recommended in the legal literature.", "2. The Government", "100. The Government accepted that in theory where a lawyer is involved in a search, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6. In the present case however it was necessary for the police to examine all of the material in the first applicant's office in order to identify those of relevance to the investigation. Only those documents were examined more closely and under domestic law no other material was to be entered into the investigation record. The police officers were – and remain – under an obligation to respect confidentiality. Moreover, officials who obtain information in the context of a seizure are not allowed to use that information for purposes other than a criminal investigation.", "101. The Government considered unsubstantiated the applicants'allegation that information gleaned from the seized material was being used against the applicants in other proceedings.", "B. The Court's assessment", "102. In view of the above finding of a violation of Article 8 based on the lack of foreseeability of the domestic law the Court considers that in the circumstances of this case there is no need to examine separately the additional complaints under Article 6 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "103. The applicants complained that the lack of effective remedy against the interference had breached Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The parties'submissions", "1. The applicant", "104. The applicants complained under Article 13 of the Convention that they had no effective remedy against the interference (search) other than the possibility of seeking a review of the lawfulness of the seizure. Even if the District Court did order the seizure to be revoked in response to such a request, that decision was overturned on appeal before the copied hard disk could be restored. Even assuming that the applicants had been successful in having that copy restored, the police had had ample time to peruse the documents thereon.", "105. They maintained that as Finnish law stood at the time there seemed to be no effective remedy against the revelation of confidential information.", "2. The Government", "106. The Government reiterated that, according to section 118 of the Constitution, everyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public function may bring charges against a civil servant or other person in charge of a public function, and also claim damages. Moreover, the Tort Liability Act also entitles an individual to institute proceedings against investigative authorities or against a court of law, before a district court, on the ground that he or she has suffered damage due to the performance of a public function.", "107. Finally, anyone affected by a seizure may challenge its lawfulness before a court of law under Chapter 4 section 13 of the Coercive Measures Act, as was done by four of the applicants. One may also petition the Ombudsman or the Chancellor of Justice or the regional or supreme police command of the Ministry of the Interior.", "108. As regards the destruction of property which has allegedly been seized unlawfully, including copies made of seized documents, the person affected by the seizure may request a court to issue a civil law order, whereby the investigative authorities are placed under an obligation to destroy the said material.", "B. The Court's assessment", "109. The Court recalls that the applicants complained in essence about the search and seizure of privileged material.", "110. In view of the submissions of the applicant in the present case and of the grounds on which it has found a violation of Article 8 of the Convention, the Court considers that there is no need to examine separately the complaints under Article 13 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "111. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "112. Under the head of non-pecuniary damage the applicants asked the Court to award each of the 18 applicants 2,500 euros (EUR), totalling EUR 45,000, for suffering and distress resulting from the alleged violations.", "113. The Government found the sum claimed for non-pecuniary damage excessive. In their view, the mere finding of a violation would suffice for the client applicants. In the case of the first applicant, the amount to be awarded should not exceed EUR 2,000.", "114. The Court accepts that the first applicant has certainly suffered non-pecuniary damage – such as distress and frustration resulting from the search and seizure – which is not sufficiently compensated by the findings of violation of the Convention. The Court awards the first applicant EUR 2, 500 under this head, whereas it considers that the finding of a violation of Article 8 constitutes sufficient just satisfaction for the client applicants.", "B. Costs and expenses", "115. The applicants requested reimbursement of the balance of the legal expenses incurred by them in the Supreme Court by EUR 870.65, including value-added tax ( VAT). The Supreme Court awarded those applicants who were part of the proceedings before the Supreme Court EUR 3,500 for costs and expenses. This was EUR 870.65 less than the costs incurred.", "116. They also claimed the reimbursement of their legal costs and expenses incurred in the proceedings before this Court, amounting to EUR 6,135.84 (including VAT).", "117. The Court recalls that the established principle in relation to domestic legal costs is that an applicant is entitled to be reimbursed those costs actually and necessarily incurred to prevent or redress the breach of the Convention, to the extent that the costs are reasonable as to quantum (see, for example, I.J.L., G.M.R. and A.K.P. v. the United Kingdom ( Article 41 ), nos. 29522/95, 30056/96 and 30574/96, § 18, 25 September 2001). It finds that the proceedings brought by the applicants nos. 2-3 and 8 against the seizure may be regarded as incurred to redress the breach of Article 8 of the Convention complained of by the applicants. The Court observes that in the Supreme Court's judgment of 18 October 2002 it was mentioned that the said applicants requested reimbursement of their legal expenses before the domestic proceedings. Having regard to all the circumstances, the Court awards the applicants nos. 2-3 and 8 EUR 870.", "118. As for the proceedings before this Court the applicants'bill of costs and expenses of 26 January 2004 totalled EUR 6, 135.84 (including VAT). Having regard to all the circumstances, the Court awards the applicants EUR 6 ,000 under this head.", "C. Default interest", "119. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1956 and lives in St Petersburg. The applicant is a lawyer; at the material time he was a member of the St Petersburg United Bar Association ( Санкт - Петербургская объединенная коллегия адвокатов ).", "A. Search at the applicant's home", "6. On 20 January 1999 the St Petersburg City Prosecutor opened criminal case no. 7806 against Mr Sh., Mr G. and fifteen other persons who were suspected of forming and participating in an organised criminal enterprise and of other serious offences.", "7. On 7 March 2000 Mr D., an investigator with the Serious Crimes Department in the prosecutor's office, issued a search warrant which read in its entirety as follows:", "“Taking into account that at the [applicant's] place of residence at the address [the applicant's home address] there might be objects and documents that are of interest for the investigation of criminal case [no. 7806], I order a search of the premises at the address [the applicant's home address] where [the applicant] permanently resides and the seizure of objects and documents found during the search.”", "8. On the same day a St Petersburg deputy prosecutor approved the search and countersigned the warrant.", "9. The Government claimed that the applicant had not been a party to criminal case no. 7806 and had not represented anyone involved. The applicant maintained that he had been a representative of:", "(a) Mr S., who had been first a suspect and later a witness in criminal case no. 7806. On 21 February 2000 the applicant had represented Mr S. before the Oktyabrskiy Court of St Petersburg in proceedings concerning a complaint about a decision by the investigator D. The applicant had also been S.'s representative in unrelated civil proceedings on the basis of an authority form of 25 May 1999;", "(b) Mr Yu., who had been a defendant in criminal case no. 7806 and whom the applicant had represented from 10 July to 25 December 1998;", "(c) Mr B., who had been the victim in a criminal case concerning the murder of his son. Subsequently that case had been joined to criminal case no. 7806. The applicant had represented Mr B. from 11 February to 23 March 2000;", "(d) Mr Sh., who had been a defendant in criminal case no. 7806 and whom the applicant had represented before the Court (application no. 29392/02).", "10. On 9 March 2000 the investigator D. , in the presence of the applicant, assisted by police officers from the Organised Crime District Directorate ( РУБОП ) and two attesting witnesses ( понятые ), searched the applicant's flat. According to the record of the search, the applicant was invited to “voluntarily hand over ... documents relating to the public company T. and the federal industrial group R. ”. The applicant responded that he had no such documents and countersigned under that statement.", "11. The investigator found and seized over twenty documents which the applicant declared to be his own and the central unit of the applicant's computer. According to the record of the search, the applicant had no complaints about the way the search was carried out, yet he objected to the seizure of the central unit because it contained two hard disks and was worth 1,000 United States dollars. The seized documents included, in particular, Mr S.'s power of attorney of 25 May 1999 and extracts of a memorandum in Mr B.'s case.", "12. On the same date the investigator D. held a formal interview with the applicant in connection with criminal case no. 7806.", "13. On 17 March 2000 the investigator L. issued an order for the attachment of the documents seized at the applicant's flat and the central unit of his computer as “physical evidence” in criminal case no. 7806.", "B. Judicial review of the search and seizure orders", "14. The applicant complained to a court. He sought to have the search and seizure of the documents declared unlawful. He claimed, in particular, that the central unit of the computer, his personal notebook and his clients'files and records were not related to the criminal case and could not be attached as evidence because the seizure had impaired his clients'defence rights.", "15. On 19 April 2000 the Oktyabrskiy Court of the Admiralteyskiy District of St Petersburg heard the applicant's complaint. The court found that the search had been approved and carried out in accordance with the applicable provisions of the domestic law and had therefore been lawful. As to the attachment of the computer, the court ruled as follows:", "“...the purpose of the search was to find objects and documents in connection with a criminal case. During the search a number of documents and a computer central unit were seized; they were thoroughly examined by the investigator, as is evident from the record of the examination of the seized items and printouts of the files contained in the central unit.", "Accordingly, the above shows that the aim of the search has been achieved; however, the order to attach the seized objects and documents as evidence in the criminal case amounts to the forfeiture of the [applicant's] property which was taken from him and never returned, whereas [the applicant] was neither a suspect nor a defendant in the criminal case and was interviewed as a witness.", "Under such circumstances, the constitutional rights of the applicant, who was deprived of his property, were violated. Having achieved the purpose of the search and recorded the results received, the investigator, without any valid and lawful grounds, declared [the applicant's property] to be physical evidence ...”", "16. The District Court ordered that the applicant's documents, his notebook and the central unit be returned to him.", "17. On 25 May 2000 the St Petersburg City Court quashed the judgment of 19 April 2000 and remitted the case for a fresh examination by a differently composed court. The City Court pointed out that the first-instance court had erroneously considered that the order for the attachment of objects as evidence amounted to the forfeiture of the applicant's property.", "18. On 6 June 2000 the investigator returned the notebook and certain documents, but not the computer, to the applicant.", "19. On 2 August 2000 the applicant brought a civil action against the St Petersburg City Prosecutor's Office and the Ministry of Finance, seeking compensation for the non-pecuniary damage incurred as a result of the seizure of his belongings.", "20. On 17 August 2000 the Oktyabrskiy Court of St Petersburg held a new hearing on the applicant's complaint. The court ruled that the search of the applicant's flat had been justified and lawful and that the remainder of the applicant's complaints were not amenable to judicial review.", "21. On 12 September 2000 the St Petersburg City Court quashed the judgment of 17 August 2000 and remitted the case for a fresh examination by a differently composed court. The City Court found that the first-instance court had failed to examine, in a sufficiently thorough manner, whether the investigator had had sufficient grounds to search the flat of a person who had not been charged with any criminal offence.", "22. On 17 November 2000 the Oktyabrskiy Court of St Petersburg delivered the final judgment on the applicant's complaint. As regards the lawfulness of the search, the court found as follows:", "“The search warrant was issued because there were sufficient reasons [to believe] that [at the applicant's home address] where [the applicant] lived there could be objects and documents that could be used as evidence in connection with one of the counts in criminal case no. 7806. This fact was established by the court and confirmed by the materials in the case file, in particular, a statement by the investigator D[.] of 16 November 2000, the decision to bring charges of 22 February 1999, the decision to lodge an application for an extension of detention on remand of 10 July [? - unclear] 2000, letter no. 200409 of 22 September 1998 and other materials; therefore, the court comes to the conclusion that the search in [the applicant's] flat was justified under Article 168 of the RSFSR Code of Criminal Procedure...”", "23. The court further established that the search had been carried out in strict compliance with the laws on criminal procedure. As regards the remainder of the applicant's claims, the court decided that it was not competent to examine them, but that it was open to the applicant to complain about the investigator's decisions to a supervising prosecutor.", "24. On 19 December 2000 the St Petersburg City Court dismissed an appeal by the applicant. It upheld the District Court's finding that the search at the applicant's flat had been justified and procedurally correct and that the order to attach objects as evidence was not amenable to judicial review because such an avenue of appeal was not provided for in domestic law.", "25. The applicant's civil claim for damages has not been examined to date." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Searches at a person's home", "26. Article 25 of the Constitution establishes that the home is inviolable. No one may penetrate into the home against the wishes of those who live there unless otherwise provided for in a federal law or a judicial decision.", "27. The RSFSR Code of Criminal Procedure, in force at the material time, provided in Article 168 (“Grounds for carrying out a search”) that an investigator could carry out a search to find objects and documents that were of relevance to the case, provided that he had sufficient grounds to believe that such objects and documents could be found in a specific place or on a specific person. The search could be carried out on the basis of a reasoned warrant issued by an investigator and approved by a prosecutor.", "28. Searches and seizures were to be carried out in the presence of the person whose premises were being searched or adult members of his family. Two attesting witnesses were to be present as well (Article 169). Any person having no interest in the case could be an attesting witness. Attesting witnesses were required to certify the scope and results of the search, and could make comments which were to be entered into the search record (Article 135).", "29. A complaint against the actions of an investigator could be submitted either directly to a prosecutor or through the person against whom the complaint was lodged. In the latter case the person concerned was to forward the complaint to the prosecutor within twenty-four hours, together with his explanations (Article 218). The prosecutor was to examine the complaint within three days and give a reasoned decision to the complainant (Article 219).", "30. On 23 March 1999, the Constitutional Court determined that decisions and actions of investigators and prosecutors relating to searches, seizure of property, suspension of proceedings and extension of time-limits for preliminary investigations should be amenable to judicial review on an application by the person whose rights had been violated.", "B. Physical evidence", "31. Article 83 of the Code of Criminal Procedure defined physical evidence as “any objects that... carried traces of a criminal offence... and any other objects that could be instrumental for detecting a crime, establishing the factual circumstances of a case, identifying perpetrators or rebutting the charges or extenuating punishment”.", "32. Physical evidence was to be retained until the conviction had entered into force or the time-limit for appeal had expired. However, it could be returned to the owner before that if such return would not harm ongoing criminal proceedings (Article 85). The court was to order the return of physical evidence to its legal owner in the final decision closing the criminal proceedings (Article 86).", "C. Council of Europe recommendation", "33. Recommendation (2000) 21 of the Committee of Ministers to member States on the freedom of exercise of the profession of lawyer provides, inter alia, as follows:", "“Principle I - General principles on the freedom of exercise of the profession of lawyer", "... 6. All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer-client relationship. Exceptions to this principle should be allowed only if compatible with the rule of law. ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "34. The applicant complained that the search carried out at his place of residence infringed Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for... his home...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "35. The Government contested that view.", "A. Whether there was an interference", "36. The Court observes that the search and seizure ordered by the investigator concerned the applicant's residential premises in which he kept his computer and certain work-related materials. The Court has consistently interpreted the notion “home” in Article 8 § 1 as covering both private individuals'homes and professional persons'offices (see Buck v. Germany, no. 41604/98, § 31, ECHR 2005 ‑ IV; and Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251 ‑ B, pp. 33-34, § § 29-31). It follows that in the present case there has been an interference with the applicant's right to respect for his home.", "B. Whether the interference was justified", "37. The Court has next to determine whether the interference was justified under paragraph 2 of Article 8, that is, whether it was “in accordance with the law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve that aim or those aims.", "1. Whether the interference was “in accordance with the law”", "38. The applicant claimed that the interference was not “in accordance with the law ” because the search had been authorised by a deputy prosecutor rather than by a court, as the Constitution required. The Court observes that under the Russian Constitution, the right to respect for a person's home may be interfered with on the basis of a federal law or a judicial decision (see paragraph 26 above). The RSFSR Code of Criminal Procedure – which had the status of federal law in the Russian legal system – vested the power to issue search warrants in investigators acting with the consent of a prosecutor (see paragraph 27 above). The Court is satisfied that that procedure was followed in the present case and that the interference was therefore “in accordance with the law”.", "2. Whether the interference pursued a legitimate aim", "39. The Government submitted that the interference had pursued the legitimate aim of the protection of rights and freedoms of others.", "40. The Court notes that the purpose of the search, as set out in the investigator's decision, was to uncover physical evidence that might be instrumental for the criminal investigation into serious offences. Accordingly, it pursued the legitimate aims of furthering the interests of public safety, preventing disorder or crime and protecting the rights and freedoms of others.", "3. Whether the interference was “necessary in a democratic society”", "41. The applicant claimed that his flat had been searched with a view to obtaining evidence against his clients, including Mr S., Mr Yu., Mr B. and many others, and gaining access to the clients'files stored on his computer. The search had violated the lawyer -client privilege and had been followed by a formal interview in which the investigator D. had questioned him about the circumstances of which he had become aware as his clients'representative.", "42. The Government submitted that the decision to search the applicant's flat had been based on witness testimony and that the search had been necessary because “objects and documents of importance for the investigation of criminal case no. 7806” could have been found in the applicant's flat. The applicant had not objected to the search.", "43. Under the Court's settled case-law, the notion of “necessity” implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. In determining whether an interference is “necessary in a democratic society” the Court will take into account that a certain margin of appreciation is left to the Contracting States (see, among other authorities, Camenzind v. Switzerland, judgment of 16 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII, p. 2893, § 44). However, the exceptions provided for in paragraph 2 of Article 8 are to be interpreted narrowly, and the need for them in a given case must be convincingly established (see Buck, cited above, § 44 ).", "44. As regards, in particular, searches of premises and seizures, the Court has consistently held that the Contracting States may consider it necessary to resort to such measures in order to obtain physical evidence of certain offences. The Court will assess whether the reasons adduced to justify such measures were “ relevant ” and “ sufficient ” and whether the aforementioned proportionality principle has been adhered to. As regards the latter point, the Court must first ensure that the relevant legislation and practice afford individuals adequate and effective safeguards against abuse. Secondly, the Court must consider the particular circumstances of each case in order to determine whether, in the concrete case, the interference in question was proportionate to the aim pursued. The criteria the Court has taken into consideration in determining this latter issue have been, among others, the circumstances in which the search order had been issued, in particular further evidence available at that time, the content and scope of the warrant, the manner in which the search was carried out, including the presence of independent observers during the search, and the extent of possible repercussions on the work and reputation of the person affected by the search (see Buck, cited above, § 45; Chappell v. the United Kingdom, judgment of 30 March 1989, Series A no. 152 ‑ A, p. 25, § 60; Camenzind, cited above, pp. 2894-95, § 46; Funke v. France, judgment of 25 February 1993, Series A no. 256 ‑ A, p. 25, § 57; and Niemietz, cited above, pp. 35-36, § 37).", "45. With regard to the safeguards against abuse existing in the Russian legislation the Court observers that, in the absence of a requirement for prior judicial authorisation, the investigation authorities had unfettered discretion to assess the expediency and scope of the search and seizure. In the cases of Funke, Crémieux and Miailhe v. France the Court found that owing, above all, to the lack of a judicial warrant, “the restrictions and conditions provided for in law ... appear[ed] too lax and full of loopholes for the interferences with the applicant's rights to have been strictly proportionate to the legitimate aim pursued” and held that there had been a violation of Article 8 of the Convention (see Funke, cited above, and Crémieux v. France and Miailhe v. France (no. 1), judgments of 25 February 1993, Series A nos. 256 ‑ B and 256 ‑ C ). In the present case, however, the absence of a prior judicial warrant was, to a certain extent, counterbalanced by the availability of an ex post factum judicial review. The applicant could, and did, make a complaint to a court which was called upon to review both the lawfulness of, and justification for, the search warrant. The efficiency of the actual review carried out by the domestic courts will be taken into account in the following analysis of the necessity of the interference.", "46. The Court observes that the applicant himself was not charged with, or suspected of, any criminal offence or unlawful activities. On the other hand, the applicant submitted documents showing that he had represented, at different times, four persons in criminal case no. 7806, in connection with which the search had been ordered. In these circumstances, it is of particular concern for the Court that, when the search of the applicant's flat was ordered, no provision for safeguarding the privileged materials protected by professional secrecy was made.", "47. The search order was drafted in extremely broad terms, referring indiscriminately to “any objects and documents that [were] of interest for the investigation of criminal case [no. 7806]”, without any limitation. The order did not contain any information about the ongoing investigation, the purpose of the search or the reasons why it was believed that the search at the applicant's flat would enable evidence of any offence to be obtained (compare Niemietz, cited above, pp. 35-35, § 37, and Ernst and Others v. Belgium, no. 33400/96, § 116, 15 July 2003 ). Only after the police had penetrated into the applicant's flat was he invited to hand over “documents relating to the public company T. and the federal industrial group R.”. However, neither the order nor the oral statements by the police indicated why documents concerning business matters of two private companies – in which the applicant did not hold any position – should have been found on the applicant's premises (compare Buck, cited above, § 50). The ex post factum judicial review did nothing to fill the lacunae in the deficient justification of the search order. The Oktyabrskiy Court confined its finding that the order had been justified, to a reference to four named documents and other unidentified materials, without describing the contents of any of them (see paragraph 22 above). The court did not give any indication as to the relevance of the materials it referred to and, moreover, two out of the four documents appeared after the search had been carried out. The Court finds that the domestic authorities failed in their duty to give “relevant and sufficient” reasons for issuing the search warrant.", "48. As regards the manner in which the search was conducted, the Court further observes that the excessively broad terms of the search order gave the police unrestricted discretion in determining which documents were “of interest” for the criminal investigation; this resulted in an extensive search and seizure. The seized materials were not limited to those relating to business matters of two private companies. In addition, the police took away the applicant's personal notebook, the central unit of his computer and other materials, including his client's authority form issued in unrelated civil proceedings and a draft memorandum in another case. As noted above, there was no safeguard in place against interference with professional secrecy, such as, for example, a prohibition on removing documents covered by lawyer- client privilege or supervision of the search by an independent observer capable of identifying, independently of the investigation team, which documents were covered by legal professional privilege (see Sallinen and Others v. Finland, no. 50882/99, § 89, 27 September 2005, and Tamosius v. the United Kingdom (dec.), no. 62002/00, ECHR 2002 -VIII ). Having regard to the materials that were inspected and seized, the Court finds that the search impinged on professional secrecy to an extent that was disproportionate to whatever legitimate aim was pursed. The Court reiterates in this connection that, where a lawyer is involved, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6 of the Convention (see Niemietz, cited above, pp. 35-36, § 37 ).", "49. In sum, the Court considers that the search carried out, without relevant and sufficient grounds and in the absence of safeguards against interference with professional secrecy, at the flat of the applicant, who was not suspected of any criminal offence but was representing defendants in the same criminal case, was not “necessary in a democratic society”. There has therefore been a violation of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1", "50. The applicant complained under Article 1 of Protocol No. 1 about a violation of his property rights resulting from the seizure and retention of his documents and computer. Article 1 of Protocol No. 1 provides as follows:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. Submissions by the parties", "51. The applicant submitted that the seizure of the central unit had constituted a disproportionate interference with his property rights and had imposed an excessive burden on him. The central unit proper could not be used as evidence in the criminal case because it had not been an instrument, object or product of a crime and had not borne any traces of a crime. Furthermore, the data contained therein could not have had any evidentiary value either, because the unit had been in the possession of the prosecution for a long time and the data could have been erased or modified. The applicant agreed with the reasons set out in the judicial decision of 19 April 2000. In his view, the prosecution should have abided by that decision rather than contesting it on appeal. The applicant claimed that the real purpose of the seizure had been to hinder his legal professional activities. The unlawful withholding of his computer had deprived him of access to more than two hundred clients'files and had been detrimental to his legal practice as a whole. Lastly, the applicant indicated that he had eventually received his notebook and some documents back.", "52. The Government submitted that the central unit of the applicant's computer had been sealed and attached as physical evidence in criminal case no. 7806 in order to prevent loss of data. The examination of the criminal case had not yet been completed. The applicant's documents and central unit would be stored in the St Petersburg City Court until such time as the judgment had been delivered. Accordingly, the applicant's right to use his property had been restricted in the public interest, with a view to establishing the truth in criminal case no. 7806.", "B. The Court's assessment", "53. The Court observes that the search of the applicant's home was followed by the seizure of certain documents, his notebook and the central unit of his computer – that is, the part containing hard disks with data. As the applicant eventually regained possession of his notebook and documents, the Court will confine its analysis to the compatibility of the retention of the computer to this day with the applicant's right to peaceful enjoyment of possessions guaranteed by Article 1 of Protocol No. 1.", "54. It is undisputed that the applicant was the lawful owner of the computer; in other words, it was his “possession”. The investigator ordered that the computer be kept as physical evidence in a criminal case until such time as the trial court had given judgment, determining in particular the use of evidence. The Court considers that this situation falls to be examined from the standpoint of the right of a State to control the use of property in accordance with the general interest.", "55. The first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful. In particular, the second paragraph of Article 1, while recognising that States have the right to control the use of property, subjects their right to the condition that it be exercised by enforcing “laws”. Moreover, the principle of lawfulness presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application (see, for example, Baklanov v. Russia, no. 68443/01, § § 39-40, 9 June 2005, with further references ).", "56. The Court observes that the decision to retain the computer was based on the provisions of the RSFSR Code of Criminal Procedure governing the use of physical evidence in criminal proceedings (see paragraphs 31 and 32 above). The investigator had the discretion to order retention of any object which he considered to be instrumental for the investigation, as was the case with the applicant's computer. The Court has doubts that such a broad discretion not accompanied by efficient judicial supervision would pass the “quality of law” test but it sees no need for a detailed examination of this point for the following reasons.", "57. The Court accepts that retention of physical evidence may be necessary in the interests of proper administration of justice, which is a “legitimate aim” in the “general interest” of the community. It observes, however, that there must also be a reasonable relation of proportionality between the means employed and the aim sought to be realised by any measures applied by the State, including measures designed to control the use of the individual's property. That requirement is expressed by the notion of a “fair balance” that must be struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see Edwards v. Malta, no. 17647/04, § 69, 24 October 2006, with further references ).", "58. The Court agrees with the applicant's contention, not disputed by the Government, that the computer itself was not an object, instrument or product of any criminal offence (compare Frizen v. Russia, no. 58254/00, § § 29-31, 24 March 2005 ). What was valuable and instrumental for the investigation was the information stored on its hard disk. It follows from the judgment of 19 April 2000 that the information was examined by the investigator, printed out and included in the case file (see paragraph 15 above). In these circumstances, the Court cannot discern any apparent reason for continued retention of the central unit. No such reason has been advanced in the domestic proceedings or before the Court. Nevertheless, the computer has been retained by the domestic authorities until the present day, that is, for more than six years. The Court notes in this connection that the computer was the applicant's professional instrument which he used for drafting legal documents and storing his clients'files. The retention of the computer not only caused the applicant personal inconvenience but also handicapped his professional activities; this, as noted above, might have had repercussions on the administration of justice.", "59. Having regard to the above considerations, the Court finds that the Russian authorities failed to strike a “fair balance” between the demands of the general interest and the requirement of the protection of the applicant's right to peaceful enjoyment of his possessions. There has therefore been a violation of Article 1 of Protocol No. 1.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1", "60. The applicant complained under Article 13 of the Convention that he had not had an effective remedy in respect of the unlawful restriction on his property rights under Article 1 of Protocol No. 1. Article 13 provides as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. Submissions by the parties", "61. The applicant pointed out that the scope of review by the domestic courts had been confined to the lawfulness of the search. As to his property complaints, the courts had determined that those issues had not been amenable to judicial review. In his view, the Constitutional Court's ruling of 23 March 1999 should have been interpreted as opening the way for judicial review of all decisions affecting a person's property rights. He stressed that his civil claim for damages had, under various pretexts, not been examined for more than four years.", "62. The Government submitted that the applicant had been able to challenge the contested decision before a court which had considered and dismissed his complaints (on 19 December 2000 in the final instance). Furthermore, his civil claim for damages against the St Petersburg City Prosecutor and Ministry of Finance was now pending before the Oktyabrskiy Court of St Petersburg.", "B. The Court's assessment", "63. The Court has consistently interpreted Article 13 as requiring a remedy in domestic law in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, pp. 23-24, § 54). In the present case there has been a finding of a violation of Article 1 of Protocol No. 1 and the complaint under Article 13 must therefore be considered. It must accordingly be determined whether the Russian legal system afforded the applicant an “effective” remedy, allowing the competent “national authority” both to deal with the complaint and to grant appropriate relief (see Camenzind, cited above, pp. 2896-97, § 53).", "64. The applicant asked for a judicial review of the lawfulness of the search and seizure conducted at his place of residence and of the decision on retention of his computer as physical evidence. Whereas the domestic courts examined the complaint concerning the search and seizure, they declared inadmissible the complaint about the failure to return the applicant's computer on the ground that the retention decision was not amenable to judicial review (see paragraphs 22 et seq. above). The applicant was told to apply to a higher prosecutor instead. In this connection the Court reiterates its settled case-law to the effect that a hierarchical appeal to a higher prosecutor does not give the person employing it a personal right to the exercise by the State of its supervisory powers and for that reason does not constitute an “effective remedy” (see, for example, Horvat v. Croatia, no. 51585/99, § 47, ECHR 2001 ‑ VIII ).", "65. As regards the pending civil claim for damages to which the Government referred, the Court notes that a civil court is not competent to review the lawfulness of decisions made by investigators in criminal proceedings.", "66. It follows that in these circumstances the applicant did not have “an effective remedy before a national authority” for airing his complaint arising out of a violation of Article 1 of Protocol No. 1. There has therefore been a violation of Article 13 of the Convention, taken together with Article 1 of Protocol No. 1.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "67. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "68. The Court points out that under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, “failing which the Chamber may reject the claim in whole or in part”.", "69. In a letter of 5 July 2005, after the application had been declared admissible, the Court invited the applicant to submit claims for just satisfaction by 7 September 2005. He did not submit any such claim within the specified time-limit.", "70. In these circumstances, the Court makes no award under Article 41." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The first applicant, who was born in 1949, is a lawyer practising in Salzburg. He is the owner and general manager of the second applicant, a holding company which is, inter alia, the sole owner of the limited liability company Novamed.", "6. On 30 August 2000 the Salzburg Regional Court ( Landesgericht ), upon a request for legal assistance ( Rechtshilfeersuchen ) by the Naples Public Prosecutor ’ s Office, issued a warrant to search the seat of the applicant company and Novamed. Both companies have their seats at the first applicant ’ s law office.", "7. The court noted that in the course of pending criminal proceedings concerning, inter alia, illegal trade in medicaments against a number of persons and companies in Italy, invoices addressed to Novamed, owned 100% by the applicant company, had been found. It therefore ordered the seizure of all business documents revealing contacts with the suspected persons and companies.", "A. The search of the applicants ’ premises and seizure of documents and data", "8. On 10 October 2000 the search of the seat of the applicant company, which is also the first applicant ’ s law office, was carried out by eight to ten officers of the Economic Crimes Department of the Salzburg police ( Wirtschaftspolizei ) and data- securing experts ( Datensicherungsexperten ) of the Federal Ministry of the Interior.", "9. One group of officers searched the law office for files concerning Novamed or Bicos in the presence of the first applicant and a representative of the Salzburg Bar Association. All documents were shown to the first applicant and the representative of the Bar Association before seizure.", "10. Whenever the first applicant objected to an immediate examination of a document seized it was sealed and deposited at the Salzburg Regional Court as required by Article 145 of the Code of Criminal Procedure ( Strafprozeßordnung – see paragraph 33 below). All seized or sealed documents were listed in a search report which was signed by the applicant and the officers who had carried out the search.", "11. Simultaneously, another group of officers examined the first applicant ’ s computer systems and copied several files to disks. According to his statement before the Independent Administrative Panel (see paragraph 25 below), the IT specialist who normally serviced the computer systems was called upon to provide some technical assistance but left again after about half an hour. The representative of the Bar Association was informed about the search of the computer systems and was also temporarily present. When the officers had terminated the search of the computer systems, they left without drawing up a search report and, apparently, also without informing the first applicant about the results of the search.", "12. Later the same day the police officers involved in the search of the applicants ’ electronic data drew up a data securing report ( Datensicherungsbericht ). Apart from a number of technical details concerning the first applicant ’ s computer systems, the report states that a complete copy of the server was not made. The search was carried out using the names of the companies involved and the names of the suspects in the Italian proceedings. A folder named Novamed containing ninety files was found plus one further file containing one of the search items. All the data were copied to disks. In addition, the deleted items were retrieved and numerous files which corresponded to the search items were found and also copied to disks.", "13. On 13 October 2000 the investigating judge opened the sealed documents in the presence of the first applicant. Some documents were copied and added to the file while others were returned to the first applicant on the ground that their use would impinge on the first applicant ’ s duty of professional secrecy.", "14. The disks containing the secured data were transmitted to the Economic Crimes Department who printed out all the files. Both the disks and printouts were then handed over to the investigating judge.", "B. The applicants ’ complaint to the Review Chamber", "15. On 28 November 2000 and 11 December 2000 respectively, the first applicant and the applicant company lodged complaints with the Review Chamber ( Ratskammer ) of the Salzburg Regional Court.", "16. They submitted that the first applicant was the owner and manager of the applicant company but also the lawyer for a number of companies in which the latter held shares. They complained that the search of their premises and the seizure of electronic data had infringed the first applicant ’ s right and duty of professional secrecy under section 9 of the Lawyers Act ( Rechtsanwaltsordnung ) in conjunction with Article 152 of the Code of Criminal Procedure as some officers had proceeded unobserved to examine and subsequently copy electronic data. The applicants submitted that the data contained the same information as the documents which had been examined in the presence of the first applicant. However, with regard to the electronic data, the first applicant had not been given an opportunity to object and have the disks sealed.", "17. They further submitted that the search report did not mention that part of the search, nor did it mention which electronic data had been copied and seized. Furthermore, the search report had only been signed by three of the officers, but did not mention the names of all the officers who had been present at the search, omitting in particular the names of the data- securing experts of the Federal Ministry of the Interior.", "18. On 31 January 2001 the Review Chamber dismissed the applicants ’ complaints.", "19. It observed that the first applicant ’ s computer data had been searched with the aid of particular search criteria. Files which corresponded to these search criteria had been copied to disks which had been seized.", "20. However, there was no ground for holding that this seizure circumvented Article 152 of the Code of Criminal Procedure: the search of the first applicant ’ s law office concerned exclusively documents which the first applicant had in his possession as an organ of Novamed and Bicos, and therefore did not concern a lawyer-client relationship.", "21. It further observed that the search of the first applicant ’ s law office was based on a lawful search warrant which included the search and seizure of electronic data. The procedural safeguards laid down in Article 145 of the Code of Criminal Procedure, namely the right of the person concerned to object to an immediate examination and to request the deposit of data seized with the Regional Court and a decision by the Review Chamber, also applied to the search of electronic data.", "22. In the present case, however, the officers had, whenever asked, complied with the first applicant ’ s requests to seal certain documents and deposit them with the Regional Court. Some of these documents had been returned by the court in order to ensure compliance with the applicant ’ s duty of professional secrecy.", "23. It therefore concluded that the applicants ’ complaints were unfounded. The Review Chamber ’ s decision was served on 7 February 2001.", "C. The applicants ’ complaint to the Salzburg Independent Administrative Panel", "24. In the meantime, on 20 and 21 November 2000 respectively, the first applicant and the applicant company lodged complaints with the Salzburg Independent Administrative Panel ( Unabhängiger Verwaltungssenat ). They submitted that the search and seizure of electronic data in the first applicant ’ s office had been unlawful.", "25. On 2 April, 11 June and 11 July 2001 the Independent Administrative Panel held public hearings at which it heard evidence from a number of witnesses.", "The IT specialist in charge of the first applicant ’ s computer facilities said that he had been called and had arrived at the office when the search of the premises was already under way. He had left again after half an hour. The officer in charge of the search stated that the first applicant had been informed about the search of his computer data. Two other officers stated that the search of the first applicant ’ s computer systems had not begun until the arrival of his IT specialist and that the representative of the Bar Association had been temporarily present. This was confirmed by the representative of the Bar Association.", "26. On 24 October 2001 the Salzburg Independent Administrative Panel dismissed the applicants ’ complaints. It found that they concerned alleged breaches of certain provisions of the Code of Criminal Procedure regulating searches. The officers who had carried out the search had possibly not fully complied with these provisions. They had, however, acted on the basis of the search warrant and not exceeded the instructions of the investigating judge. The search was therefore imputable to the court. Consequently, a review of lawfulness did not fall within the competence of the Independent Administrative Panel." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Provisions of the Code of Criminal Procedure relating to search and seizure", "27. Articles 139 to 149 of the Code of Criminal Procedure ( Strafprozeßordnung ) concern the search of premises and persons and the seizure of objects.", "28. Article 139 § 1 provides in particular that a search may only be carried out if there is a reasonable suspicion that a person suspected of having committed an offence is hiding on the premises concerned, or that there are objects there the possession or examination of which is relevant to a particular criminal investigation.", "29. Pursuant to Article 140 §§ 1 and 2 a search should in general only be carried out after the person concerned has been questioned, and only if the person sought has not come forward of his or her own volition or the object or objects sought have not been voluntarily produced and if the reasons leading to the search have not been eliminated. No such questioning is required where there is danger in delay.", "30. Article 140 § 3 states that a search may, as a rule, only be carried out on the basis of a reasoned search warrant issued by a judge.", "31. Pursuant to Article 142 §§ 2 and 3 the occupant of the premises subject to the search or, if he is unavailable, a relative of the occupant, shall be present during the search. A report is to be drawn up and to be signed by all those present.", "32. Article 143 § 1 of the Code of Criminal Procedure provides that, if objects relevant to the investigation or subject to forfeiture or confiscation are found, they are to be listed and taken to the court for safe keeping or seized. It refers in this respect to Article 98, pursuant to which objects in safe keeping have to be put into an envelope to be sealed by the court, or be labelled so as to avoid any substitution or confusion.", "33. Article 145 reads as follows:", "“1. When searching through documents steps must be taken to ensure that their content does not become known to unauthorised persons.", "2. If the owner of the documents does not want to permit their being searched, they shall be sealed and deposited with the court; the Review Chamber must determine immediately whether they are to be examined or returned.”", "34. According to the courts ’ case-law, which is endorsed by the opinion of academic writers (see Bertl/Vernier, Grundriss des österreichischen Strafprozessrechts, 7 th edition), the provisions relevant to the search and seizure of paper documents also apply mutatis mutandis to the search and seizure of electronic data. If the owner of disks or hard disks on which data is stored objects to their being searched, the data carriers are to be sealed and the Review Chamber must decide whether they may be examined.", "B. Provisions relating to the professional secrecy of lawyers", "35. Section 9 of the Austrian Lawyers Act ( Rechtsanwaltsordnung ) regulates the professional duties of lawyers including, inter alia, the duty to maintain professional secrecy.", "36. Article 152 § 1 of the Code of Criminal Procedure exempts lawyers, notaries and business trustees from the obligation to give evidence as witnesses in respect of information given to them in the exercise of their profession.", "37. It is established case-law that documents which contain information subject to professional secrecy may not be seized and used in a criminal investigation.", "38. According to an instruction ( Erlaß ) of the Federal Minister of Justice of 21 July 1972, a representative of the competent Bar Association shall be present during the search of a lawyer ’ s office in order to ensure that the search does not encroach on professional secrecy.", "C. Review by the Independent Administrative Panel", "39. By virtue of section 67a ( 1 ) of the General Administrative Procedure Act ( Allgemeines Verwaltungsverfahrensgesetz ), Independent Administrative Panels have jurisdiction, inter alia, to examine complaints from persons alleging a violation of their rights resulting from the exercise of direct administrative authority and coercion ( Ausübung unmittelbarer verwaltungsbehördlicher Befehls - und Zwangsgewalt ).", "40. Where police officers execute a court warrant their acts are imputable to the court unless they act in clear excess of the powers conferred on them. Only in the latter case are their acts qualified as exercise of direct administrative authority and coercion and subject to review by an Independent Administrative Panel.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "41. The applicants complained of the search and seizure of electronic data. They relied on Article 8 of the Convention which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Applicability of Article 8", "42. The Government based their comments on the assumption that the search and seizure at issue interfered with the applicants ’ “private life” and “home”.", "43. The Court reiterates that the search of a lawyer ’ s office has been regarded as interfering with “private life” and “correspondence” and, potentially, home, in the wider sense implied by the French text which uses the term “ domicile ” ( see Niemietz v. Germany, 16 December 1992, § § 29 ‑ 33, Series A no. 251 ‑ B, and Tamosius v. the United Kingdom ( dec .), no. 62002/00, ECHR 2002 ‑ VIII; see also Sallinen and Others v. Finland, no. 50882/99, § 71, 27 September 2005, which confirms that the search of a lawyer ’ s business premises also interfered with his right to respect for his “home” ). The search of a company ’ s business premises was also found to interfere with its right to respect for its “home” ( see Société Colas Est and Others v. France, no. 37971/97, §§ 40-42, ECHR 2002-III).", "44. In the present case, the applicants do not complain of the search of their business premises, which are the first applicant ’ s law office and the applicant company ’ s seat, nor do they complain of the seizure of documents. They only complain in respect of the search and seizure of electronic data.", "45. The Court considers that the search and seizure of electronic data constituted an interference with the applicants ’ right to respect for their “correspondence” within the meaning of Article 8 ( see Niemietz, cited above, § 32, as regards a lawyer ’ s business correspondence, and Sallinen and Others, cited above, § 71, relating to the seizure of a lawyer ’ s computer disks). Having regard to its above-cited case-law extending the notion of “home” to a company ’ s business premises, the Court sees no reason to distinguish between the first applicant, a natural person, and the second applicant, a legal person, as regards the notion of “correspondence”. It does not consider it necessary to examine whether there was also an interference with the applicants ’ “ private life ”.", "46. The Court must therefore determine whether the interference with the applicants ’ right to respect for their correspondence satisfied the requirements of paragraph 2 of Article 8.", "B. Compliance with Article 8", "1. The parties ’ submissions", "47. The Court observes at the outset that in its admissibility decision of 16 May 2006 it joined the Government ’ s objection as to non-exhaustion to the merits. The Government argued that the applicants had failed to make use of the possibility, provided for in the Code of Criminal Procedure, to request that documents or data be sealed and deposited with the court in order to obtain a court decision on whether or not they may be used for the investigation. The applicants contested this view, arguing that the manner in which the search was carried out had deprived them of the possibility to make effective use of their rights.", "48. On the merits, the applicants asserted that the search and seizure of electronic data had been disproportionate. They claimed that the first applicant was not only the manager of the applicant company but also its counsel and the counsel of Novamed. Thus the search had necessarily led to the discovery of correspondence, for instance letters and file notes that the first applicant had made in his capacity as counsel. During the search of the paper documents all such documents had either been removed immediately or sealed and returned to the applicant by the investigating judge as being subject to professional secrecy. In contrast, the electronic data had been seized without observing the attendant procedural guarantees. In this connection the applicants relied on the same arguments as submitted in respect of the issue of exhaustion of domestic remedies.", "49. The applicants maintained that the applicant company ’ s rights had also been infringed, since it had had no control over the kind of data that were seized. The search for the word Bicos had necessarily led to data unrelated to the subject defined in the search warrant. The procedural guarantees laid down in the Code of Criminal Procedure had not been complied with, since the applicant company had not been given the possibility to have the data sealed and to obtain a decision by the investigating judge as to which data might be used for the investigation.", "50. The Government noted at the outset that the applicants only complained about the search of electronic data and that their submissions essentially related to the first applicant ’ s position as a lawyer and to the alleged lack of safeguards to protect his duty of professional secrecy, while the complaint as regards the applicant company remained unsubstantiated.", "51. Referring to the Court ’ s case-law, the Government argued that the search and seizure of electronic data had a legal basis in the Code of Criminal Procedure and served legitimate aims, namely the prevention of crime and the protection of health.", "52. As regards the necessity of the interference, the Government asserted that the search and seizure of the data had been proportionate to the legitimate aim pursued. The contested measures had been ordered by a judicial search warrant which had delimited their scope. Moreover, Austrian law contained specific procedural safeguards for the search of a lawyer ’ s office. They had been complied with in that the search had taken place in the presence of the applicant and a representative of the Bar Association, whose role had been to ensure that the search did not encroach on the first applicant ’ s duty of professional secrecy. In accordance with the search warrant, the first applicant ’ s computer systems had been searched with the help of certain key words, that is, the names of the firms involved, Novamed and Bicos, and the names of the suspects in the proceedings in Italy. Since the first applicant was not the second applicant ’ s counsel, their lawyer-client relationship had not been affected. Moreover, the representative of the Bar Association had been informed of the search of the first applicant ’ s computer systems and the search procedure documented in the data- securing report. The fact that the said report had not been drawn up during the search but later the same day was not decisive, since the main aim of recording which data had been seized had been achieved.", "2. The Court ’ s assessment", "( a ) In accordance with the law", "53. The Court reiterates that an interference cannot be regarded as “in accordance with the law” unless, first of all, it has some basis in domestic law. In relation to Article 8 § 2 of the Convention, the term “law” is to be understood in its “substantive” sense, not in its “ formal ” one. In a sphere covered by the written law, the “law” is the enactment in force as the competent courts have interpreted it ( see Société Colas Est and Others, cited above, § 43, with further references, and Sallinen and Others, cited above, § 77).", "54. The Austrian Code of Criminal Procedure does not contain specific provisions for the search and seizure of electronic data. However, it contains detailed provisions for the seizure of objects and, in addition, specific rules for the seizure of documents. It is established in the domestic courts ’ case-law that these provisions also apply to the search and seizure of electronic data (see paragraph 34 above). In fact, the applicants do not contest that the measures complained of had a basis in domestic law.", "( b ) Legitimate aim", "55. The Court observes that the search and seizure was ordered in the context of criminal proceedings against third persons suspected of illegal trade in medicaments. It therefore served a legitimate aim, namely, the prevention of crime.", "( c ) Necessary in a democratic society", "56. The parties ’ submissions concentrated on the necessity of the interference and, in particular, on the question whether the measures were proportionate to the legitimate aim pursued and whether the procedural safeguards provided for by the Code of Criminal Procedure were adequately complied with.", "57. In comparable cases, the Court has examined whether domestic law and practice afforded adequate and effective safeguards against any abuse and arbitrariness (see, for instance, Société Colas Est and Others, cited above, § 48 ). Elements taken into consideration are, in particular, whether the search was based on a warrant issued by a judge and based on reasonable suspicion, whether the scope of the warrant was reasonably limited and – where the search of a lawyer ’ s office was concerned – whether the search was carried out in the presence of an independent observer in order to ensure that materials subject to professional secrecy were not removed ( see Niemietz, cited above, § 37, and Tamosius, cited above).", "58. In the present case, the search of the applicants ’ computer systems was based on a warrant issued by the investigating judge in the context of legal assistance for the Italian authorities who were conducting criminal proceedings for illegal trade in medicaments against a number of companies and individuals. It relied on the fact that invoices addressed to Novamed, 100% owned by the applicant company, had been found. In these circumstances, the Court is satisfied that the search warrant was based on reasonable suspicion.", "59. The Court also finds that the search warrant limited the documents or data to be looked for in a reasonable manner, by describing them as any business documents revealing contacts with the suspects in the Italian proceedings. The search remained within these limits, since the officers searched for documents or data containing either the word Novamed or Bicos or the names of any of the suspects.", "60. Moreover, the Code of Criminal Procedure provides further procedural safeguards as regards the seizure of documents and electronic data. The Court notes the following provisions of the Code :", "(a) the occupant of the premises being searched shall be present;", "(b) a report is to be drawn up at the end of the search and items seized are to be listed;", "(c) if the owner objects to the seizure of documents or data carriers they are to be sealed and put before the judge for a decision as to whether or not they are to be used for the investigation; and", "(d) in addition, as far as the search of a lawyer ’ s office is concerned, the presence of a representative of the Bar Association is required.", "61. The applicants do not claim that the guarantees provided by Austrian law are insufficient but that they were not complied with in the present case as regards the seizure of data. The Court notes that a number of officers carried out the search of the applicants ’ premises. While one group proceeded to the seizure of documents, the second group searched the computer system using certain search criteria and seized data by copying numerous files to disks.", "62. The Court observes that the safeguards described above were fully complied with as regards the seizure of documents: whenever the representative of the Bar Association objected to the seizure of a particular document, it was sealed. A few days later the investigating judge decided in the presence of the applicant which files were subject to professional secrecy and returned a number of them to the applicant on this ground. In fact, the applicants do not complain in this respect.", "63. What is striking in the present case is that the same safeguards were not observed as regards the electronic data. A number of factors show that the exercise of the applicants ’ rights in this respect was restricted. Firstly, the member of the Bar Association, though temporarily present during the search of the computer facilities, was mainly busy supervising the seizure of documents and could therefore not properly exercise his supervisory function as regards the electronic data. Secondly, the report setting out which search criteria had been applied and which files had been copied and seized was not drawn up at the end of the search but only later the same day. Moreover, the officers apparently left once they had finished their task without informing the first applicant or the representative of the Bar Association of the results of the search.", "64. It is true that the first applicant could have requested, in a general manner at the beginning of the search, to have any disks with copied data sealed and submitted to the investigating judge. However, since the Code of Criminal Procedure provides for a report to be drawn up at the end of the search, and requires that the items seized be listed, he could expect that procedure to be followed. Since this was not the case he had no opportunity to exercise his rights effectively. Consequently, the Government ’ s objection of non-exhaustion has to be dismissed.", "65. With regard to the first applicant this manner of carrying out the search incurred the risk of impinging on his right to professional secrecy. The Court has attached particular weight to that risk since it may have repercussions on the proper administration of justice ( see Niemietz, cited above, § 37). The domestic authorities and the Government argued that the first applicant was not the applicant company ’ s counsel and that the data seized did not concern their client-lawyer relationship. It is true that the first applicant, contrary to his submissions before the Court, did not claim before the domestic authorities that he was the applicant company ’ s counsel, nor that he was the counsel of Novamed. However, he claimed throughout the proceedings that he acted as counsel for numerous companies whose shares were held by the second applicant. Moreover, the Government did not contest the applicants ’ assertion that the electronic data seized contained by and large the same information as the paper documents seized, some of which were returned to the first applicant by the investigating judge as being subject to professional secrecy. It can therefore be reasonably assumed that the electronic data seized also contained such information.", "66. In conclusion, the Court finds that the police officers ’ failure to comply with some of the procedural safeguards designed to prevent any abuse or arbitrariness and to protect the lawyer ’ s duty of professional secrecy rendered the search and seizure of the first applicant ’ s electronic data disproportionate to the legitimate aim pursued.", "67. Furthermore, the Court observes that a lawyer ’ s duty of professional secrecy also serves to protect the client. Having regard to its above findings that the first applicant represented companies whose shares were held by the second applicant and that the data seized contained some information subject to professional secrecy, the Court sees no reason to come to a different conclusion as regards the second applicant.", "68. Consequently, there has been a violation of Article 8 of the Convention in respect of both applicants.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "69. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "70. Under the head of pecuniary damage, the first applicant claimed 4,000 euros (EUR) per year from the year 2000 for loss of clients. He submitted that he was unable to adduce proof without breaching his duty of professional secrecy. Moreover, he claimed EUR 10,000 as compensation for non-pecuniary damage since his reputation as a lawyer had suffered as a result of the events.", "71. The applicant company claimed EUR 20,211.56 in compensation for pecuniary damage. It asserted that, being a holding company, its name had been ruined by the seizure of the data. Consequently, it had had to be newly established under another name and had therefore had to raise EUR 17,500 for the nominal capital of the new company and to pay costs of EUR 2,711.56 for the legal acts involved. It did not submit a claim in respect of non-pecuniary damage.", "72. The Government asserted that there was no causal link between the violation in issue and the pecuniary damage alleged by the applicants.", "73. With regard to the applicants ’ claims in respect of pecuniary damage, the Court observes that it cannot speculate as to what the effects on the applicants ’ reputation would have been had the search and seizure of electronic data been carried out in compliance with the requirements of Article 8 (see, mutatis mutandis, Société Colas Est and Others, cited above, § 54). Consequently, it makes no award under this head.", "74. However, the Court accepts that the first applicant has suffered non-pecuniary damage, such as distress and frustration resulting from the manner in which the search and seizure of data were carried out. Making an assessment on an equitable basis and having regard to the sum awarded in a comparable case (see Sallinen and Others, cited above, § 114) it grants the first applicant EUR 2,500 under the head of non-pecuniary damage.", "B. Costs and expenses", "75. The first applicant claimed a total amount of EUR 15,967.15 for costs and expenses, composed of EUR 9,204.52 in respect of the domestic proceedings and EUR 6,762.63 in respect of the Convention proceedings. These sums include value- added tax ( VAT ).", "76. The Government accepted that the costs listed in respect of the domestic proceedings were necessarily incurred. However, they submitted that the amounts claimed were excessive since they were not in accordance with the relevant domestic laws and regulations on the remuneration of lawyers. In particular, only an amount of EUR 1,486.80 – instead of the EUR 4,858 claimed – was due in respect of the proceedings before the Salzburg Independent Administrative Panel. Moreover, the Government argued that the costs claimed in respect of the Convention proceedings were excessive. Only an amount of EUR 2,289.96 was appropriate.", "77. The Court reiterates that if it finds that there has been a violation of the Convention, it may award the applicant the costs and expenses of the domestic proceedings which were necessarily incurred in order to prevent or redress the violation and are reasonable as to quantum ( see Société Colas Est and Others, cited above, § 56).", "78. The Court notes that it is not contested that the costs claimed by the first applicant were necessarily incurred. However, it considers that the sums claimed are not reasonable as to quantum. Regard being had to the information in its possession and to the sums awarded in comparable cases, the Court considers it reasonable to award the sum of EUR 10,000 covering costs under all heads. This sum includes VAT.", "C. Default interest", "79. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant is a practising lawyer. He has been a member of the Sofia bar since 1994. His office is located in the centre of Sofia.", "6. On 23 November 2000 a Mr R.S. lodged a complaint with the Second Regional Police Department in Sofia. He alleged that the previous day, 22 November 2000, he had been abducted by several persons working for his former employer, a company called MIG Group AD. He had been taken to a certain Mr K.G., an employee of that company, who had threatened him and his family with violence on account of his failure to repay certain money which he owed to the company. He had later been taken to the applicant ’ s office, where he had been coerced into signing written promises to pay money, as well as a contract to hand over his car. All these documents had been drafted by the applicant.", "7. On 24 November 2000 Mr R.S. ’ s complaint was referred to the First Regional Police Department in Sofia, which on 29 November 2000 opened a criminal investigation against an unknown perpetrator on allegations of extortion contrary to Article 214 § 1 of the 1968 Criminal Code.", "8. At about midday on 29 November 2000 the police brought Mr K.G. and two other individuals in for questioning. The applicant, who was the legal counsel of MIG Group AD, was informed of Mr K.G. ’ s arrest. He called the police officer in charge of the case, offering to assist by going to the police station.", "9. The applicant went to the police station at about 2 p.m. on 29 November 2000. Once on the premises, he was taken to a room where he saw several other persons called for questioning, and was apparently not allowed to leave. However, no warrant was issued for his arrest, whereas at 4 p.m. the police decided to detain Mr K.G. and the two other individuals for twenty ‑ four hours.", "10. Between 6.30 p.m. and 7 p.m. the same day the officer in charge of the investigation interviewed the applicant as a witness. The applicant said that he knew Mr R.S., because he had been an employee of MIG Group AD. However, he said that he had not seen him on 22 November 2000 and completely denied the allegations that on that day Mr R.S. had been coerced into signing certain documents in the applicant ’ s office. He also said that he had a computer in his office and that Mr K.G. was a client of his. After the interview the applicant was allowed to leave the police station.", "11. At 8 p.m. the same day several police officers sealed the door of the applicant ’ s office and left a guard in front of the door.", "12. The applicant alleged that shortly after that his mobile telephone was tapped, as evidenced by the constant noise on the line. The Government denied this, saying that the investigation case file did not contain a single document relating to such tapping. In support they produced an inventory of all documents in the file.", "13. At 2.40 p.m. the next day, 30 November 2000, the police officer in charge of the case organised a confrontation between the applicant and Mr R.S., in their capacity as witnesses, with a view to eliminating the discrepancies between their versions of the events of 22 November 2000. Both stuck to their original accounts. The confrontation ended at 2.45 p.m.", "14. At 4 p.m. on 30 November 2000 the police officer in charge of the case applied to the Sofia District Court for a search warrant for the applicant ’ s office. He said, without giving further particulars, that on the basis of the available evidence there were grounds to believe that objects and documents which would be relevant for the investigation would be found there. He also said that the proposed search would be conducted on the same day.", "15. At approximately 4.30 p.m. that day the on ‑ duty judge at the Sofia District Court, having reviewed the evidence gathered up to that point, issued a search warrant for the applicant ’ s office. She held that there existed evidence which was sufficient to enable the court to make a plausible supposition that the office contained objects which would be relevant to the case. In particular, the victim of the alleged offence had given information about the office and had asserted that evidence of that offence could be found there.", "16. Between 6.30 p.m. and 9.40 p.m. the same day the police officer in charge of the case, helped by two other police officers, executed the search warrant for the applicant ’ s office. They seized his computer, monitor, printer and other peripherals, thirty ‑ three floppy disks, a piece of paper noting five motor vehicle registration numbers, and a certificate from a language school saying that Mr R.S. had completed a course in English and German. The computer and the disks were found on a desk opposite the front door, and the papers were found in a filing cabinet beside a window. The search was carried out in the presence of two certifying witnesses, neighbours of the applicant. The applicant arrived on the premises after the beginning of the search. The police drew up a record containing an inventory of the seized items. The record was signed without comment by the certifying witnesses. The applicant wrote that he objected to the search, as it had been carried out in breach of the 1991 Bar Act (see paragraph 25 below). After the search the applicant ’ s office was sealed.", "17. On 6 December 2000 the officer in charge of the case asked an expert to determine whether the seized computer ’ s hard drive and the floppy disks had any files on them relating to the investigation. He delivered the computer with all its peripherals and the floppy disks to the expert. On 15 December 2000 the expert informed the officer that, despite having searched the content of the hard drive and of the floppy disks with a special programme using keywords, she had found no such files.", "18. In the meantime, on 13 December 2000, the applicant asked the prosecution authorities to return the seized items to him.", "19. On 5 February 2001 a prosecutor of the Sofia District Prosecutor ’ s Office decided to stay the investigation. He reasoned that despite the steps which had been taken, the identity of the alleged perpetrator had not been established. He also ordered that the applicant ’ s computer, monitor, printer, peripherals and floppy disks be returned to him.", "20. On 2 March 2001 the applicant asked the chairman of the Sofia City Court to inform him whether between 1 October and 31 December 2000 that court had issued a warrant for the tapping of any of his telephones. In a letter of 6 March 2001 the chairman of the Sofia City Court told the applicant that his request had been left unexamined, because his legal interest in the matter should have been satisfied by the existence of the 1997 Special Intelligence Means Act and Article 111 et seq. of the 1974 Code of Criminal Procedure (“the CCP”) (see paragraph 26 below)." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Search and seizure in the context of criminal proceedings", "21. Article 134 § 1 of the CCP, as in force at the material time, provided that where there existed sufficient grounds to believe that certain premises contained objects or documents which might be relevant to a criminal investigation, the authorities could carry out a search and seizure there.", "22. According to Article 135 § 1 of the CCP, as in force at the material time, during the preliminary investigation a search and seizure could be carried out only pursuant to a warrant issued by a judge of the competent first ‑ instance court. The warrant was issued in ex parte proceedings, without notification or participation of the persons concerned. An exception to the warrant requirement was only possible in exigent circumstances; in that case the record of the search had to be produced for approval before a judge within twenty ‑ four hours (Article 135 § 2 of the CCP).", "23. As a rule, the search and seizure had to be carried out during the day and in the presence of the person using the premises, as well as of two certifying witnesses (Articles 136 § 1 and 137 § 1 of the CCP). The officers carrying out the search could not undertake any actions which were not necessary for the search (Article 137 § 4 of the CCP).", "24. In April 2006 these provisions were replaced by Articles 159 ‑ 63 of the 2005 Code of Criminal Procedure.", "25. Section 18(1) of the 1991 Bar Act, presently superseded by section 33(1) of the 2004 Bar Act, provided that a lawyer ’ s files and papers were inviolable and could not be checked or seized.", "B. Interception of telephone communications", "26. The domestic law regulating secret surveillance is described in detail in paragraphs 7 ‑ 51 of the Court ’ s judgment in the case of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (no. 62540/00, 28 June 2007).", "C. Witnesses in criminal proceedings", "27. Article 95 § 1 of the CCP, as in force at the material time, provided that witnesses in criminal proceedings had a duty to appear for questioning when called and to remain at the disposal of the authorities until necessary for this purpose.", "D. The 1988 State Responsibility for Damage Act", "28. Section 1(1) of the 1988 State Responsibility for Damage Caused to Citizens Act („ Закон за отговорността на държавата за вреди, причинени на граждани “ – this was the original title; on 12 July 2006 it was changed to the State and Municipalities Responsibility for Damage Act, „ Закон за отговорността на държавата и общините за вреди “), as in force at the material time, provided that the State was liable for damage suffered by private persons as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of administrative action. According to the Supreme Court of Cassation ’ s case ‑ law, the actions of the investigation and the prosecution authorities in the context of a criminal investigation do not amount to administrative action and they are therefore not liable under section 1 of the Act ( реш. № 615 от 10 юли 2001 г. на ВКС по гр. д. № 1814/2000 г.; тълк. реш. № 3 от 22 април 2004 г. на ВКС по тълк.д. № 3/2004 г., ОСГК ).", "29. Section 2 of the Act provides for liability of the investigation and prosecution authorities and the courts in six situations: unlawful pre ‑ trial detention; bringing of charges or conviction, if the proceedings have later been abandoned or if the conviction has been overturned; coercive medical treatment or coercive measures imposed by a court, if its decision has later been quashed as being unlawful; and serving of a sentence over and above its prescribed duration.", "THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION", "30. The applicant alleged that the search and seizure carried out in his office had not been lawful and necessary in a democratic society. He also alleged that that the authorities had tapped his mobile telephone. He relied on Article 8 of the Convention, which provides, in so far as relevant:", "“1. Everyone has the right to respect for his private ... life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well ‑ being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The search and seizure in the applicant ’ s office", "1. The parties ’ submissions", "31. The Government submitted that the interference with the applicant ’ s rights under Article 8 of the Convention had had a legal basis in Articles 32, 33 and 34 of the Constitution of 1991 and the relevant provisions of the CCP, which were fully in line with the requirements of the Convention. The interference had furthermore pursued a legitimate aim and had been necessary for its attainment. The search in the applicant ’ s office had been directly related to the needs of the investigation, as the objects found and seized there had had a direct link with the offence under investigation. Moreover, both the applicant and two independent observers – neighbours who had had no interest in the outcome of the case – had been present during the search. The intrusion in the applicant ’ s privacy had been kept to a minimum: the contents of his computer ’ s hard drive and of the seized disks had been explored through a special piece of software using keywords, which meant that the contents of his electronic documents had not been checked in full. There was no indication that the information obtained had been revealed to a third party, copied or improperly used. Finally, the interference had not lasted unreasonably long, as the computer had been given back to the applicant two months after its seizure.", "32. The applicant submitted that the search and seizure, which had been widely reported in the newspapers, had seriously prejudiced his professional reputation. They had been effected in breach of section 18(1) of the 1991 Bar Act, which protected the professional secrecy of lawyers. Having been prompted solely by the statements of Mr R.S., they had not been based on sufficient evidence. They had moreover disproportionately impinged not only on his professional secrecy, but also on his private life – the seized computer contained personal letters, emails, articles written by him and an almost completed book of essays and poems. Seeing that the computer had remained in the hands of the police for a significant amount of time, although the entire contents of its hard drive could have been copied in ten minutes, any of these could have been read by police personnel. The seizure of electronic data was all the more unnecessary on account of the fact that at the relevant time it was not possible to introduce it as evidence in court.", "2. The Court ’ s assessment", "A. Admissibility", "33. The Court considers that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "34. According to the Court ’ s case ‑ law, the search of a lawyer ’ s office, including, as in the present case, electronic data, amounts to an interference with his “private life”, “home” and “ correspondence ” (see Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251 ‑ B, pp. 33 ‑ 35, §§ 29 ‑ 33; Tamosius v. the United Kingdom (dec.), no. 62002/00, ECHR 2002-VIII; Sallinen and Others v. Finland, no. 50882/99, §§ 70 ‑ 72, 27 September 2005; and Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, §§ 43 ‑ 45, ECHR 2007 ‑ ...).", "35. Such interference gives rise to a breach of Article 8 unless it can be shown that it was “in accordance with the law”, pursued one or more legitimate aim or aims as defined in paragraph 2 and was “necessary in a democratic society” to achieve those aims.", "36. Concerning the first of these requirements, the Court notes that section 18(1) of the 1991 Bar Act, as in force at the relevant time, provided that a lawyer ’ s files and papers were inviolable and could not be checked or seized (see paragraph 25 above). It does not seem that there exists any reported case ‑ law clarifying the exact purview of this provision and, in particular, whether it prohibits the removal of material covered by legal professional privilege under all circumstances. It is therefore open to doubt whether the search and seizure were “in accordance with the law”. However, the Court does not find it necessary to determine this point, as, for the reasons which follow, it considers that these measures were incompatible with Article 8 of the Convention in other respects (see Funke v. France, judgment of 25 February 1993, Series A no. 256 ‑ A, p. 23, § 51; Crémieux v. France, judgment of 25 February 1993, Series A no. 256 ‑ B, p. 61, § 34; and Miailhe v. France (no. 1), judgment of 25 February 1993, Series A no. 256 ‑ C, p. 88, § 32 ).", "37. The Court observes that the search and seizure were ordered in the context of a criminal investigation opened pursuant to allegations of extortion. They therefore served a legitimate aim, namely the prevention of crime.", "38. To determine whether these measures were “necessary in a democratic society”, the Court has to explore the availability of effective safeguards against abuse or arbitrariness under domestic law and check how those safeguards operated in the specific case under examination. Elements taken into consideration in this regard are the severity of the offence in connection with which the search and seizure have been effected, whether they have been carried out pursuant to a warrant issued by a judge or a judicial officer – or subjected to after ‑ the ‑ fact judicial scrutiny –, whether the warrant was based on reasonable suspicion and whether its scope was reasonably limited. The Court must also review the manner in which the search has been executed, and – where a lawyer ’ s office is concerned – whether it has been carried out in the presence of an independent observer to ensure that material subject to legal professional privilege is not removed. The Court must finally take into account the extent of the possible repercussions on the work and the reputation of the persons affected by the search (see Camenzind v. Switzerland, judgment of 16 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII, pp. 2893 ‑ 94, § 45; Buck v. Germany, no. 41604/98, § 45, ECHR 2005 ‑ IV; Smirnov v. Russia, no. 71362/01, § 44, ECHR 2007 ‑ ...; and Wieser and Bicos Beteiligungen GmbH, cited above, § 57 ).", "39. Applying these principles to the present case, the Court first observes that under the CCP searches and seizures must, as a rule, be carried out pursuant to a judicial warrant (see paragraph 22 above). Indeed, in the instant case the search was effected under a warrant issued by the Sofia District Court (see paragraph 15 above). The Court does not consider that the fact that the warrant was obtained in an ex parte procedure was problematic in itself (see Tamosius, cited above). However, the mere fact that an application for a warrant has been subject to judicial scrutiny will not in itself necessarily amount to a sufficient safeguard against abuse. The Court must rather examine the particular circumstances and evaluate whether the legal framework and the limits on the powers exercised were an adequate protection against arbitrary interference by the authorities (see Cronin v. the United Kingdom (dec.), no. 15848/03, 6 January 2004 ).", "40. The Court also notes that the police applied for a search warrant after obtaining statements from several witnesses, including the victim of the alleged offence and the applicant (see paragraphs 6, 8, 10 and 13 above). The information which they had elicited from these statements was capable of giving rise to the belief that extortion had been committed in the applicant ’ s office. It is true that the application for a warrant made no mention of any specific facts. However, the judge to whom the application was made was able review the evidence gathered up to that point, and in her decision made an express reference to Mr R.S. ’ s statement (see paragraph 15 above). The Court is therefore satisfied that the warrant was based on a reasonable suspicion.", "41. However, the Court notes that neither the application for its issue nor the warrant itself specified what items and documents were expected to be found in the applicant ’ s office, or how they would be relevant to the investigation. Moreover, in issuing the warrant the judge did not touch at all upon the issue of whether privileged material was to be removed. According to the Court ’ s case ‑ law, search warrants have to be drafted, as far as practicable, in a manner calculated to keep their impact within reasonable bounds (see Van Rossem v. Belgium, no. 41872/98, § 45, 9 December 2004 ). This is all the more important in cases where the premises searched are the office of a lawyer, which as a rule contains material which is subject to legal professional privilege (see Niemietz, cited above, p. 35 ‑ 36, § 37). The Court therefore finds that, in the circumstances, the warrant was drawn in overly broad terms and was thus not capable of minimising the interference with the applicant ’ s Article 8 rights and his professional secrecy. The Court is well aware that elaborate reasoning may prove hard to achieve in urgent situations. However, by the time the police applied for a search warrant they had already sealed the applicant ’ s office (see paragraph 11 above), thus obviating the risk of spoliation of evidence. The Court does not therefore consider that in the instant case a more thorough discussion of these matters would have been too onerous, especially considering that section 18(1) of the 1991 Bar Act was intended to provide a safeguard in this regard (see paragraph 25 above).", "42. The Court further observes that the warrant ’ s excessive breadth was reflected in the way in which it was executed. While there is nothing in the facts to suggest that papers covered by legal professional privilege were touched upon during the search, it should be noted that the police removed the applicant ’ s entire computer, including its peripherals, as well as all floppy disks which they found in his office (see paragraph 16 above). Seeing that the computer was evidently being used by the applicant for his work, it is natural to suppose that its hard drive, as well as the floppy disks, contained material which was covered by legal professional privilege. It is true that later the expert used keywords to sift through the data they contained, which somewhat limited the intrusion. However, this happened several days after the search, after the computer and the floppy disks had been indiscriminately removed from the applicant ’ s office (see paragraph 17 above), whereas no safeguards existed to ensure that during the intervening period the entire contents of the hard drive and the floppy disks were not inspected or copied. This leads the Court to conclude that the search impinged on the applicant ’ s professional secrecy to an extent that was disproportionate in the circumstances (see Niemietz, pp. 35 ‑ 36, § 37; Smirnov, § 48; and Wieser and Bicos Beteiligungen GmbH, §§ 63 and 65 in limine, all cited above ). It should also be noted that the computer, including all its peripheral devices, was kept by the authorities for more than two months: it was seized on 30 November 2000, checked by an expert before 15 December 2000, and then kept until the proceedings were stayed on 5 February 2001 (see paragraphs 16, 17 and 19 above). In the Court ’ s view, this must have had a negative impact on the applicant ’ s work, whereas it is hard to conceive how keeping the computer after 15 December 2000 was conducive to the investigation ’ s goals.", "43. In addition, the Court notes that, while the search was carried out in the presence of two certifying witnesses, they were neighbours who were not legally qualified (see paragraph 16 above). This may be considered problematic, as this lack of legal qualification made it highly unlikely that these observers were truly capable of identifying, independently of the investigation team, which materials were covered by legal professional privilege, with the result that they did not provide an effective safeguard against excessive intrusion by the police into the applicant ’ s professional secrecy (see, as examples to the contrary, Tamosius; and Wieser and Bicos Beteiligungen GmbH, §§ 60 (d) and 62, both cited above ). This was especially true in respect of the electronic data seized by the police, as it does not seem that any sort of sifting procedure was followed during the search (see Wieser and Bicos Beteiligungen GmbH, cited above, § 63 ).", "44. Finally, the Court observes that under Bulgarian law the applicant had no means of contesting the lawfulness of the warrant or of its execution. Neither the CCP nor any other statute contained provisions to such effect, whereas the 1988 State Responsibility for Damage Act envisages only limited grounds for liability, which do not include the issuing or execution of search warrants (see paragraphs 28 and 29 above; and, as examples to the contrary, Buck, § 46; and Smirnov, § 45 in fine, both cited above; as well as Chappell v. the United Kingdom, judgment of 30 March 1989, Series A no. 152 ‑ A, p. 25, § 60 in fine ).", "45. In the light of the above, the Court concludes that the shortcomings in the procedure followed were such that the search and seizure carried out in the applicant ’ s office can be regarded as disproportionate to the legitimate aim pursued. There has therefore been a violation of Article 8 of the Convention.", "B. The alleged tapping of the applicant ’ s mobile telephone", "1. The parties ’ submissions", "46. The Government submitted that the applicant ’ s assertion that his mobile telephone had been tapped was not corroborated by a single piece of evidence. If the authorities wished to tap a telephone, they had to obtain an authorisation in accordance with a special procedure laid down in the 1997 Special Surveillance Means Act. This procedure required a number of documents to be created. However, having checked the case file of the investigation against the applicant, the Government had not found any document warranting a conclusion that his mobile telephone communications had been intercepted for evidence ‑ gathering purposes.", "47. The applicant said that a tap had been put on his telephone immediately after his office had been sealed, as evidenced by the disturbances on the line. He had had no way of confirming or dispelling his misgivings in this regard, as under Bulgarian law such information could not be released. He also submitted that if there had been such tapping, it had been unlawful, because he had been merely a witness and the authorities had not had sufficient material to entertain a reasonable suspicion against him. In view of this, and of the applicant ’ s capacity as a lawyer, it had clearly not been necessary in a democratic society to intercept his telephone communications. He concluded that these circumstances had amounted to a breach of Article 8.", "2. The Court ’ s assessment", "48. Telephone conversations are covered by the notions of “ private life ” and “ correspondence ” within the meaning of Article 8 ( see, as a recent authority, Weber and Saravia v. Germany (dec.), no. 54934/00, § 77, ECHR 2006 ‑ XI, with further references). Article 8 is therefore applicable. However, the Court must also determine whether there has been an interference with the applicant ’ s rights under this provision.", "49. In cases where the applicants assert that the mere existence of laws empowering the authorities to secretly monitor their communications amounts to an interference with their Article 8 rights, the Court does not require proof that an actual interception of communications has taken place (see Klass and Others v. Germany, judgment of 6 September 1978, Series A no. 28, pp. 16 ‑ 20, §§ 30 ‑ 38; Malone v. the United Kingdom, judgment of 2 August 1984, Series A no. 82, p. 31, § 64; Weber and Saravia, cited above, §§ 76 ‑ 79; and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 59). However, where – as here – the gist of the applicant ’ s complaint is not that his Article 8 rights have been threatened by the very existence of laws permitting secret surveillance, but instead that measures of surveillance have actually been applied to him, the Court must be satisfied that there is a reasonable likelihood that some such measures have been applied (see Halford v. the United Kingdom, judgment of 25 June 1997, Reports 1997 ‑ III, pp. 1016 ‑ 17, §§ 47 and 48, and pp. 101 8 ‑ 20, §§ 53 ‑ 60 ).", "50. To assess whether such a reasonable likelihood has been established, the Court will not confine its examination to the existence of direct proof of covert monitoring, which by definition would be extremely difficult to come by, but will look at the totality of the circumstances of the case.", "51. In the instant case, the Court observes that the only element which tends to suggest that calls made from the applicant ’ s mobile telephone have been intercepted is his allegation that there were disturbances on his line on the evening of 29 November 2000 (see paragraph 12 above). However, such disturbances are not necessarily indicative of tapping and cannot of themselves warrant a conclusion that covert monitoring has taken place. It is true that when the applicant later enquired of the chairman of the Sofia City Court whether tapping warrants had been issued against him, the latter refused to give him that information (see paragraph 20 above). It is also true that Bulgarian law, as construed by the Supreme Administrative Court, expressly prohibits the disclosure of information as to whether a person has been subjected to secret surveillance or whether warrants have been issued for this purpose, with the result that unless they are subsequently prosecuted on the basis of the material gathered through covert surveillance, or unless there has been a leak of information, the persons concerned cannot find out whether they have ever been monitored (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 91 ). However, in view of the overall situation obtaining in the present case, the categorical denial by the Government that covert surveillance has taken place, and the lack of any documents relating to surveillance measures in the investigation case file (see paragraphs 12 and 46 above), the Court does not find it established that there has been an interference with the applicant ’ s rights to respect for his private life and correspondence in relation to his mobile telephone.", "52. It follows that this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "II. ALLEGED VIOLATIONS OF ARTICLE 13 OF THE CONVENTION", "53. The applicant alleged he had been denied effective remedies for his complaints under Article 8 of the Convention. He relied on Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The parties ’ submissions", "54. The Government did not touch upon these complaints in their observations.", "55. The applicant said that despite the obvious breaches of his Convention rights, he had had no avenue of redress and no possibility of obtaining compensation. The decision of the Sofia District Court to issue a search warrant for his office had not been subject to appeal, and the actions of the police during the search had not been amenable to any form of scrutiny either.", "B. The Court ’ s assessment", "56. The effect of Article 13 is to require the provision of a remedy at national level allowing the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. However, such a remedy is only required in respect of grievances which can be regarded as arguable in terms of the Convention (see Halford, p. 1020, § 64; and Camenzind, pp. 2896 ‑ 97, § 53, both cited above ).", "1. The search and seizure in the applicant ’ s office", "57. Having regard to its findings under Article 8 in relation to the search and seizure (see paragraphs 34 ‑ 45 above), the Court considers that the complaint in this respect was arguable. It accordingly finds that it is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible, and the Court must determine whether Bulgarian law afforded the applicant an effective remedy in this respect.", "58. The Court would stress at the outset that the fact that the applicant has never been formally charged, prosecuted or tried in relation to the material obtained during the search is of no consequence for his complaint under Article 13. Even if the proceedings, which were stayed in 2001, are eventually discontinued and do not produce any negative consequences for him, this will not amount to appropriate relief for his complaint under Article 8 (see, mutatis mutandis, Khan v. the United Kingdom, no. 35394/97, § 44, ECHR 2000 ‑ V; and P.G. and J.H. v. the United Kingdom, no. 44787/98, § 86, ECHR 2001 ‑ IX ).", "59. While the Court does not consider that the notion of an effective remedy in this context presupposes the possibility of challenging the issuing of the warrant prior to the search (see, mutatis mutandis, Tamosius, cited above), it notes that the Government did not point to any avenue of redress which the applicant could have used to vindicate his Article 8 rights, nor did they refer to any relevant domestic court judgments or decisions. No provision of the CCP, or of any other Bulgarian law, lays down a procedure whereby a person can contest the lawfulness of a search or seizure and obtain redress in case they have been unlawfully ordered or executed. Such claims manifestly fall outside the purview of sections 1 and 2 of the 1988 State Responsibility for Damage Act, which envisage only limited grounds for liability (see paragraphs 28 and 29 above).", "60. There has therefore been a violation of Article 13 of the Convention in relation to the search and seizure carried out in the applicant ’ s office.", "2. The alleged tapping of the applicant ’ s mobile telephone", "61. The Court notes that on the basis of the material adduced by the parties it did not find it established that there has been an interference with the applicant ’ s rights to respect for his private life and correspondence in relation to his mobile telephone, and accordingly found that his complaint in this regard was manifestly ill ‑ founded (see paragraphs 48 ‑ 52 above). It follows that the applicant does not have an “arguable” claim in this regard (see Halford, cited above, pp. 1021 ‑ 22, §§ 69 and 70).", "62. It follows that this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "A. Alleged violation of Article 3 of the Convention", "63. The applicant alleged that the search and seizure in his office and its sealing had amounted to degrading treatment. He said that these events had been widely publicised in the press and seen by several of his clients, which had had a negative impact on his professional reputation. He relied on Article 3 of the Convention, which provides, as relevant:", "“No one shall be subjected to torture or to inhuman or degrading treatment ...”", "64. The Court observes that, for treatment to be “degrading”, and in breach of Article 3, the humiliation or debasement involved must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case (see Costello-Roberts v. the United Kingdom, judgment of 25 March 1993, Series A no. 247 ‑ C, p. 59, § 30). The Court has consistently stressed that the suffering and humiliation involved must go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment (see Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000 ‑ XI; and Jalloh v. Germany [GC], no. 54810/00, § 68 in fine, ECHR 2006 ‑ IX ). Thus, being remanded in custody does not in itself raise an issue under Article 3 (see Kudła, cited above, § 93). Nor does the taking of blood or saliva samples against a suspect ’ s will attain the minimum level of severity to qualify as inhuman and degrading treatment (see Schmidt v. Germany (dec.), no. 32352/02, 5 January 2006 ).", "65. Applying this test to the circumstances of the present case, the Court finds that, while the search and the seizure carried out in the applicant ’ s office may have impinged on his professional reputation, they were clearly below the minimum level of severity required to bring Article 3 into play.", "66. It follows that this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "B. Alleged violations of Article 5 §§ 1 and 5 of the Convention", "67. The applicant complained under Article 5 § 1 of the Convention that he had been unlawfully deprived of his liberty for several hours on 29 November 2000. He also complained under Article 5 § 5 that he could not obtain compensation for this.", "68. Article 5 of the Convention provides, as relevant:", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(b) the lawful arrest or detention of a person for non ‑ compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;", "(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;", "...", "5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”", "69. The applicant said that on 29 November 2000 he had been detained in the absence of any reasonable suspicion of him having committed an offence. The fact that he had gone to the police station voluntarily did not mean that he had surrendered his right to liberty. What made the situation particularly grave was his position as a lawyer.", "70. Concerning the complaint under Article 5 § 1, the Court observes at the outset that the applicant did not try to challenge his alleged deprivation of liberty in any domestic forum. The question thus arises whether he has exhausted domestic remedies, as required under Article 35 § 1. However, the Court will not pursue this matter, as it considers that the complaint is in any event manifestly ill-founded for the reasons set out below.", "71. The second question is whether the applicant was “deprived of his liberty” and whether Article 5 is thus applicable. On this point, the Court notes that the applicant arrived at the police station at about 2 p.m. on 29 November 2000. Shortly after that he was taken to a room where several other persons were awaiting questioning, and was made aware that he was not free to leave the premises. He was interviewed as a witness between 6.30 p.m. and 7 p.m. and then allowed to leave (see paragraphs 9 and 10 above). Under the Convention organs ’ case ‑ law, the determination whether there has been a deprivation of liberty starts with the specific situation of the individual concerned. Account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question (see, among many other authorities, Guenat v. Switzerland, no. 24722/94, Commission decision of 10 April 1995, Decisions and Reports (DR) 81 ‑ A, p. 130, at p. 134; and, more recently, I.I. v. Bulgaria, no. 44082 /98, § 86, 9 June 2005 ). Furthermore, Article 5 § 1 applies to deprivations of liberty of even a very short duration (see X v. Austria, no. 8278/78, Commission decision of 13 December 1979, DR 18, p. 154, at p. 156; and Guenat, cited above). However, the Court does not need to resolve this issue in the present case, as even assuming that the applicant was deprived of his liberty, and that Article 5 was thus applicable, it is satisfied that this deprivation of liberty was justified under paragraph 1 (b) of this provision.", "72. Under the second leg of sub ‑ paragraph (b) of Article 5 § 1, an individual may be arrested and detained to secure “ the fulfilment of any obligation prescribed by law ”. The Convention organs have held that this obligation, while not necessarily antecedent in all cases, should not be given a wide interpretation. It has to be specific and concrete, and the arrest and detention must be truly necessary for the purpose of ensuring its fulfilment. Moreover, in assessing whether the deprivation of liberty is justified, a fair balance has to be drawn between the significance in a democratic society of securing the fulfilment of the obligation in issue and the importance of the right to liberty. The relevant factors in drawing this balance are the nature and the purpose of the obligation, the detained person, the specific circumstances which led to his or her detention, and the length of the detention (see Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22, p. 28, § 69 in limine; McVeigh and Others v. the United Kingdom, nos. 8022/77, 8025/77 and 8027/77, Commission ’ s report of 18 March 1981, DR 25, pp. 37 ‑ 43, §§ 168 ‑ 96; Vasileva v. Denmark, no. 5 2792/99, §§ 36 and 37, 25 September 2003; and Epple v. Germany, no. 77909/01, § 37, 24 March 2005 ).", "73. The Court observes that at the time of the applicant ’ s arrival at the police station the police were already inquiring into allegations that one of his clients, Mr K.G., had committed acts of extortion in his office, and had brought Mr K.G. in for questioning (see paragraphs 8 and 9 above). In view of the seriousness of the allegations, it is not surprising that they found it necessary also to interview the applicant in relation to this. It is a normal feature of law enforcement for the authorities to be able to ensure the attendance of witnesses in criminal investigations. It is true that the applicant came to the police station voluntarily. However, Article 95 § 1 of the CCP places witnesses not only under the obligation to appear for questioning, but also to remain at the disposal of the authorities until necessary for this purpose (see paragraph 27 above).", "74. In the circumstances of the case, it does not appear that that at the time of the applicant ’ s interview the police had a sufficiently firm suspicion against him to the extent that this interview was in reality a preparatory stage to charging him. The measures taken against him were therefore not “situated in a punitive context”, and fell within the ambit of Article 5 § 1 (b) (see McVeigh and Others, cited above, p. 41, § 187; and, as an example to the contrary, Engel and Others, cited above, pp. 28 ‑ 29, § 69).", "75. The Court does not therefore find that it was contrary to Article 5 § 1 (b) for the police to deprive the applicant of his liberty for a limited amount of time for the purpose of taking his statement. It is true that his actual interview took place some four and a half hours after his arrival at the police station. However, in light of its and the former Commission ’ s case ‑ law (see B. v. France, no. 10179/82, Commission decision of 13 May 1987, DR 52, p. 111, at pp. 125 ‑ 26; Reyntjens v. Belgium, no. 16810/90, Commission decision of 9 September 1992, DR 73, p. 136, at pp. 151 ‑ 52; Vasileva, §§ 41 and 42; and Epple, § 45, both cited above ), the Court does not consider that by keeping the applicant in custody for a period totalling five hours the authorities overstepped the reasonable balance between the need to question him and his right to liberty. Finally, the Court does not perceive anything to suggest that the applicant ’ s deprivation of liberty was unlawful.", "76. It follows that this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "77. As regards the complaint under Article 5 § 5, the Court notes that neither it, nor a domestic authority, has found that the applicant ’ s deprivation of liberty was in breach of any of the preceding paragraphs of that Article (see McVeigh and Others, p. 48, § 220; and Guenat, at p. 135, both cited above). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.", "C. Alleged violations of Article 6 §§ 1 and 3 (a) of the Convention", "78. The applicant complained under Article 6 § 1 of the Convention that he had not had access to a court competent to rule on the criminal charges against him and before which to challenge the search warrant. In his view, his detention and the search and seizure in his office had constituted a criminal charge within the meaning of that provision. He also complained under Article 6 § 3 (a) of the Convention that he had not been informed of the charges against him.", "79. Article 6 provides, as relevant:", "“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...", "3. Everyone charged with a criminal offence has the following minimum rights:", "(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; ...”", "80. The Court observes that the criminal proceedings in the course of which the applicant was brought in for questioning and his office was searched were not directed against him and thus did not constitute a criminal charge against him. It follows that these proceedings did not come within the scope of Article 6 as regards the applicant (see S. v. Austria, no. 12592/86, Commission decision of 6 March 1989, unreported; Raiffeisenbank Kötschach ‑ Mauthen v. Austria, no. 28630/95, Commission decision of 3 December 1997, unreported; and Smirnov v. Russia (dec.), no. 71362/01, 30 June 2005; see also, mutatis mutandis, Reinhardt and Slimane ‑ Kaïd v. France, judgment of 31 March 1998, Reports 1998 ‑ II, p. 661, § 93 in fine ).", "81. Even assuming, however, that the above acts amounted to the bringing of criminal charges against the applicant, the Court observes that the right of access to a court in criminal matters may be limited through a decision not to charge or prosecute, or a decision to discontinue a prosecution (see Deweer v. Belgium, judgment of 27 February 1980, Series A no. 35, p. 25, § 49 in limine; and Soini and Others v. Finland, no. 36404/97, §§ 67 ‑ 69, 17 January 2006 ). In the instant case, the proceedings were stayed on 5 February 2001 on the ground that the identity of the alleged offender could not be established (see paragraph 19 above) and there is no indication that the applicant has ever been prosecuted or tried in relation to them.", "82. As to the decision of the Sofia District Court to issue a search warrant for the applicant ’ s office (see paragraph 15 above), it did not determine a criminal charge against him and did not therefore attract the guarantees of Article 6.", "83. It follows that this complaint is inadmissible under Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.", "D. Alleged violation of Article 13 of the Convention", "84. The applicant alleged that he had not had effective remedies for his complaints under Articles 3, 5 and 6 of the Convention. He relied on Article 13.", "85. The text of Article 13 and the relevant case-law have been set out in paragraphs 53 and 56 above.", "86. Seeing that all the complaints in relation to which the applicant relies on Article 13 have been declared inadmissible, the Court does not consider that they amounted to “arguable” grievances within the meaning of this provision.", "87. It follows that this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "88. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "89. The applicant claimed 5,000 euros (EUR) in respect of damage suffered on account of the alleged breach of Article 3 of the Convention. He also claimed EUR 5,000 for damage sustained as a result of the alleged violations of Articles 5 and 6 of the Convention. Finally, he claimed EUR 50,000 for pecuniary damage flowing from the two alleged breaches of Article 8 of the Convention. He said that the search, which had been widely publicised, had seriously damaged his professional reputation and had no doubt deterred potential clients. He further claimed EUR 20,000 in respect of non-pecuniary damage occasioned by the two alleged breaches of this provision.", "90. The Government made no comments on the applicant ’ s claims.", "91. The Court first notes that an award of just satisfaction can only be based on the breaches of Articles 8 and 13 of the Convention arising from the search and seizure in the applicant ’ s office and the lack of remedies in this regard.", "92. With regard to the claim in respect of pecuniary damage, the Court observes that it cannot speculate as to what the effects on the applicant ’ s reputation would have been had the search and seizure been carried out in line with the requirements of Article 8 (see Wieser and Bicos Beteiligungen GmbH, cited above, § 73 ). Consequently, it makes no award under this head.", "93. On the other hand, the Court accepts that the applicant has suffered distress and frustration resulting from the manner in which the search and seizure were carried out. Making an assessment on an equitable basis, as required under Article 41, the Court awards him EUR 1, 0 00 under this head. To this amount should be added any tax that may be chargeable.", "B. Costs and expenses", "94. The applicant stated that he sought the reimbursement of his costs and expenses. However, he did not supply any particulars of that expenditure.", "95. According to the Court ’ s case-law, applicants are entitled to the reimbursement of their costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. To this end, Rule 60 §§ 2 and 3 of the Rules of Court stipulate that applicants must enclose with their claims for just satisfaction “any relevant supporting documents”, failing which the Court “may reject the claims in whole or in part”. In the present case, noting that the applicant has failed to produce any documents – such as itemised bills or invoices – in support of his claim, the Court does not make any award under this head.", "C. Default interest", "96. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "A. The circumstances of the case", "4. In their capacity as a lawyer and a law firm, the applicants had been retained by Clinique Les Roches Claires, a public limited company ( société anonyme ), to assist and represent it during audit operations conducted into its affairs for the period 1 January 1997 to 31 December 2000 as a result of an audit notice of 10 July 2000.", "5. On 12 June 2001, pursuant to the provisions of Article L. 16 B of the Code of Tax Procedure, the tax authorities applied to the President of the Marseilles tribunal de grande instance to authorise a search and seizure operation to be carried out in the context of the audit of Clinique Les Roches Claires, with a view to obtaining accounting, legal and corporate documents supporting certain declarations, on account of suspected fraudulent activities (price mark-ups and uninvoiced or fictitious transactions).", "6. By a warrant of the same date the President authorised the tax inspectors, assisted by senior police officers, to carry out the searches and seizures required in order to discover evidence of the alleged activities at certain sites where documents or data carriers connected with the suspected fraud might be found, in particular at the applicants ’ place of business, since they had been retained to assist and represent Clinique Les Roches Claires and were therefore assumed to be in possession of documents evidencing the suspected fraud on the part of their client.", "7. The judge authorised only one search, setting 20 June 2001 as the time limit for the search and 30 June 2001 as the time - limit for the submission of a report on the operations.", "8. On 13 June 2001, simultaneous searches were conducted at the locations indicated in the warrant issued by the President of the Marseilles tribunal de grande instance. The operations carried out at the applicants ’ place of business by four tax inspectors took place between 7.30 a.m. and 1.10 p.m., in the presence of the first applicant, the chairman of the Marseilles Bar Association and a senior police officer. On that occasion, the first applicant was given a copy of the warrant of 12 June 2001.", "9. A record of the search and seizure operations and an inventory were drawn up and signed by those present. Sixty-six documents were seized. They included handwritten notes and a document with a comment in the first applicant ’ s handwriting, in respect of which the chairman of the Bar Association expressly pointed out that these were the lawyer ’ s personal documents and were accordingly protected by the rule of absolute professional secrecy and could not be seized. The first applicant protested at the way in which the search had been carried out and made a number of observations which were logged in the record. He was given a copy of the record and the documents seized.", "10. The applicants appealed on points of law within the statutory time - limit of five days. In their pleadings in support of the appeal, they raised two grounds alleging that the searches and seizures had been unlawful. They stated in particular, relying on professional secrecy and the rights of the defence, that documents sent by a client to that client ’ s lawyer and correspondence between them could not be seized where the search was not aimed at establishing proof that the lawyer in question had been involved in the offence. They also complained that the search warrant issued by the President of the tribunal de grande instance had failed to mention specifically that the presence of the chairman of the Bar Association or his or her representative was compulsory during the operations.", "11. In a judgment of 11 December 2002 the Court of Cassation dismissed the applicants ’ appeal. As to the failure to refer specifically to the presence of the chairman of the Bar Association, the court stated that the search warrant did not have to determine the measures required for professional secrecy to be observed, any breaches thereof being examined in the context of the review of the lawfulness of the operations and not the review of the lawfulness of the warrant. As regards the seizure of the documents at issue, the Court of Cassation considered that the professional secrecy of lawyers did not constitute an obstacle to searches of their premises and seizure of any documents in their possession being authorised, in so far as the judge had found that the information provided by the applicant authority contained sufficient evidence for the suspicion mentioned in the warrant.", "B. Relevant domestic law and practice", "1. The Code of Tax Procedure", "12. The relevant provisions of the Code of Tax Procedure, as applicable at the material time, read as follows :", "Article L16 B", "“I. If the judicial authority, on an application by the tax authority, considers that presumptions exist that a taxpayer is avoiding the calculation or payment of taxes on revenue or profits or of value added tax by making purchases or sales without invoices, by using or issuing invoices or documents that do not correspond to genuine transactions or by knowingly omitting to make accounting entries or to cause accounting entries to be made or by knowingly making inaccurate or false entries or causing inaccurate or false entries to be made in the accounting records that are required to be kept by the General Tax Code, it may, in accordance with the conditions set out in II, authorise tax officials of at least inspector rank and holding authority from the Director-General of the Revenue to that end to seek proof of such acts by carrying out searches of all premises, including private premises, where evidence and documents relating thereto may be kept and to seize such evidence and documents.", "II. All searches must be authorised by an order of the liberties and detention judge of the tribunal de grande instance for the jurisdiction in which the premises to be searched are located.", "The judge shall verify whether there is concrete evidence that the application for authorisation which has been made to him or her is well-founded. The application must contain all the information in the possession of the authority that may serve to justify a search.", "The order shall include:", "( i ) where appropriate, a statement that the president of the tribunal de grande instance has delegated the requisite power;", "(ii) the address of the premises to be searched;", "(iii) the name and capacity of the accredited civil servant who has sought and obtained authorisation to carry out the search.", "The judge shall give reasons for his or her decision by indicating the elements of fact and law on which he or she relies and which raise a presumption in the case before him or her of the existence of the fraudulent acts for which evidence is sought.", "If during the course of the search the accredited officials discover the existence of a safe-deposit box in a financial institution in the name of the person occupying the premises searched in which items of evidence and documents relating to the acts referred to in I are likely to be found, they may, with the permission – which may be given in any form – of the judge who made the order, immediately search the safe-deposit box. A reference to such permission shall be entered in the record referred to in IV.", "The search and seizure of documents shall be carried out under the authority and supervision of the judge who authorised them. To that end, he or she shall give all instructions to the officials engaged in the operations.", "He or she shall appoint a senior police officer to assist with the operations and to keep him or her informed of their progress.", "The judge may, if he or she considers it appropriate, attend the premises while the operations are under way.", "He or she may at any time decide to suspend or halt the search.", "The occupier of the premises or his or her representative shall be orally informed of the order on site when the search is carried out and shall receive a full copy of it, for which he or she shall either sign a receipt or initial the record referred to in IV. In the absence of the occupier of the premises or his or her representative, the order shall be served by registered letter with recorded delivery after the search has been performed. Service shall be deemed to have been effected at the date of receipt entered on the delivery form.", "If delivery of the order is not taken, it shall be served personally in accordance with the provisions of Articles 550 et seq. of the Code of Criminal Procedure.", "The time - limit and procedure for appealing shall be set out in the documents accompanying postal or personal service.", "The only remedy against the order referred to in the first sub-paragraph shall be an appeal on points of law in accordance with the rules set out in the Code of Criminal Procedure. Such appeals shall have no suspensive effect. For the purposes of an appeal on points of law, time shall start to run from the date of postal or personal service of the order.", "III. Searches, which may not be started before 6 a.m. or after 9 p.m., shall be conducted in the presence of the occupier of the premises or of his or her representative. If that is not possible, the senior police officer shall appoint two witnesses who shall not be from his or her department or the tax authority.", "The tax - authority officials referred to in I may be assisted by other tax - authority officials who have been accredited in the same conditions as the inspectors.", "The accredited tax officials, the occupier of the premises or his or her representative and the senior police officer are the only persons authorised to see the evidence and documents before their seizure.", "The senior police officer shall ensure that there is no breach of professional confidence and that the rights of the defence are complied with in accordance with the provisions of the third paragraph of Article 56 of the Code of Criminal Procedure. Article 58 of that Code shall be applicable.", "IV. A record stating how the operation was organised and how it proceeded and logging any findings shall be compiled forthwith by the tax - authority officials. An inventory of the evidence and documents seized shall be appended to it, where necessary. The record and the inventory shall be signed by the tax - authority officials, a senior police officer and the persons mentioned in the first sub-paragraph of III. Any refusal to sign them shall be noted in the record.", "Should it prove impractical to take an inventory on site, the evidence and documents seized shall be placed under seal. The occupier of the premises or his or her representative shall be informed that he or she may be present when the seals are broken in the presence of the senior police officer. The inventory shall be taken at that time.", "V. The originals of the record and the inventory shall be sent to the judge who issued the search warrant as soon as they have been compiled. A copy of those documents shall be provided to the occupier of the premises or his or her representative.", "The evidence and documents seized shall be returned to the occupier of the premises within six months of the search; however, when criminal proceedings are brought, their return must be authorised by the competent court.", "VI. The tax authorities may not use any information obtained against the taxpayer until the seized items and documents have been returned or reproduced and until the review measures referred to in the first and second sub-paragraphs of Article L. 47 have been implemented.”", "2. The Code of Criminal Procedure", "13. The relevant provisions of the Code of Criminal Procedure, as applicable at the material time, read as follows:", "Article 56, paragraph 3", "“However, [the senior police officer] must first take all measures necessary to ensure that professional confidentiality and the rights of the defence are respected .”", "Article 56-1", "“ A search of a lawyer ’ s chambers or home may only be made by a judge and in the presence of the chairman of the Bar Association or a person delegated by him or her. Only the judge and the chairman of the Bar Association or the person delegated by him or her are entitled to inspect documents discovered during a search with a view to their possible seizure.", "The chairman of the Bar Association or the person delegated by him or her may object to the seizure of a document which the judge intends to carry out if he or she considers that it would be unlawful. The document must then be placed under official seal. These steps shall be noted in an official record indicating the objections of the chairman of the Bar Association or the person delegated by him or her, which shall not be added to the case file. Where other documents have been seized during the search without any objection, the official record shall be separate from that required by Article 57. The official record and the document placed under official seal shall be transmitted to the liberties and detention judge, along with the original or a copy of the case file.", "Within five days of receipt of the documents, the liberties and detention judge shall give a reasoned ruling on the objection, which shall not be open to appeal.", "To this end, he or she shall interview the judge who carried out the search and, where necessary, the public prosecutor and also the lawyer whose chambers or home has been searched and the chairman of the Bar Association or the person delegated by him or her. He or she may open the seal in the presence of these persons.", "Where he or she considers that it is not necessary to seize the document, the liberties and detention judge shall order its immediate return and the destruction of the official record of the operations and, where necessary, the deletion of any reference to that document or its contents in the official case file.", "Otherwise, he or she shall order the inclusion of the document and the official record in the case file. His or her decision shall not prevent the parties from subsequently applying to, the trial court or the investigation division, as appropriate, for the seizure to be declared null and void. ”", "3. Law no. 71-1130 of 31 December 1971 concerning the reform of certain judicial and legal professions", "14. Section 66-5 of Law no. 71 -1130 of 31 December 1971 ( amended by Law no. 2004-130 of 11 February 2004 ) provides :", "“ In all matters, whether with regard to advice or defence, written opinions sent by a lawyer to his or her client or intended for the latter, correspondence between a client and a lawyer, between a lawyer and other lawyers, with the exception, in the latter case, of correspondence marked ‘ official ’, meeting notes and, more generally, all documents in a case file shall be covered by professional secrecy. ”", "4. Case - law of the Court of Cassation", "15. The Court of Cassation has held that the seizure of correspondence between a person under investigation and that person ’ s lawyer may only be ordered and pursued if the documents seized are capable of establishing proof of the lawyer ’ s participation in an offence (see in particular Court of Cassation ( Criminal Division), 12 March 1992, Bulletin criminel no. 112; 20 January 1993, Bulletin criminel no. 29; Court of Cassation (Commercial Division), 5 May 1998, Bulletin IV, no. 147; Court of Cassation (Criminal Division), 5 Oct. 1999, Bulletin criminel no. 206; 27 June 2001, Bulletin criminel no. 163). Observance of the principle of the confidentiality of exchanges between a lawyer and his or her client is not limited to seizures, but extends to other measures that might affect it ( for example, a measure such as the tapping of a lawyer ’ s private and/or personal telephone line must be preceded by a specific finding that credible evidence exists of the lawyer ’ s participation in an offence : Court of Cassation (Criminal Division), 15 January 1997, Bulletin criminel no. 14; 8 November 2000, Bulletin criminel no. 335; Court of Cassation (Criminal Division), 18 January 2006, appeal no. 05-86.447).", "5. Community law", "( a) Case of AM & S Europe Limited v. Commission of the European Communities (155/79), judgment of 18 May 1982 of the Court of Justice of the European Communities ( CJEC )", "“ 18. Community law, which derives from not only the economic but also the legal interpenetration of the Member States, must take into account the principles and concepts common to the laws of those States concerning the observance of confidentiality, in particular, as regards certain communications between lawyer and client. That confidentiality serves the requirements, the importance of which is recognised in all of the Member States, that any person must be able, without constraint, to consult a lawyer whose profession entails the giving of independent legal advice to all those in need of it.", "19. As far as the protection of written communications between lawyer and client is concerned, it is apparent from the legal systems of the Member States that, although the principle of such protection is generally recognised, its scope and the criteria for applying it vary ...", "21. Apart from these differences, however, there are to be found in the national laws of the Member States common criteria inasmuch as those laws protect, in similar circumstances, the confidentiality of written communications between lawyer and client provided that, on the one hand, such communications are made for the purpose and in the interests of the client ’ s rights of defence and, on the other hand, they emanate from independent lawyers, that is to say, lawyers who are not bound to the client by a relationship of employment ...", "23. As far as the first of those two conditions is concerned, in Regulation ... care is taken to ensure that the rights of the defence may be exercised to the full, and the protection of the confidentiality of written communications between lawyer and client is an essential corollary to those rights.", "24. As regards the second condition, it should be stated that the requirement as to the position and status as an independent lawyer, which must be fulfilled by the legal adviser from whom the written communications which may be protected emanate, is based on a conception of the lawyer ’ s role as collaborating in the administration of justice by the courts and as being required to provide, in full independence, and in the over-riding interests of that cause, such legal assistance as the client needs. The counterpart of that protection lies in the rules of professional ethics and discipline ... Such a conception reflects the legal traditions common to the Member States and is also to be found in legal order of the Community ... ”", "( b) Case of Wouters (C-309-99), judgment of 19 February 2002 of the CJEC", "16. In this case the CJEC recognised the specific nature of the profession of lawyer. In his submissions presented on 10 July 2001, the Advocate -General Philippe Léger considered, in particular, as follows :", "“ 182. Professional secrecy forms the basis of the relationship of trust between lawyer and client. It requires the lawyer not to divulge any information imparted by the client and extends ratione temporis to the period after the lawyer has ceased to act for the client and ratione personae to third parties. Professional secrecy also constitutes an ‘ essential guarantee of the freedom of the individual and of the proper working of justice ’, so that in most Member States it is a matter of public policy. ”", "( c ) Directive 91/308/ EEC on prevention of the use of the financial system for the purpose of money laundering", "17. Directive 91/308/ EEC states that lawyers are obliged to inform the competent authorities of any fact which could be an indication of money laundering. The particular protection to be afforded to lawyers and the possible exceptions thereto are the subject of debate in the context of a dispute before the CJEC, in relation to Directive 91/308/EEC and the obligation on lawyers to inform and co-operate with the authorities responsible for the fight against money laundering.", "18. In its judgment of 26 June 2007 ( Ordre des barreaux francophones et germanophones, Ordre français des avocats du barreau de Bruxelles, Ordre des barreaux flamands, Ordre néerlandais des avocats du barreau de Bruxelles against Conseil des ministres, Case C-305/05), the ECJ ruled that the obligations of information and cooperation with the authorities responsible for combating money laundering did not infringe Article 6 § 1 of the Convention for the following reasons :", "– these obligations “ apply to lawyers only insofar as they advise their client in the preparation or execution of certain transactions, essentially those of a financial nature or concerning real estate”, that is, in a context with no link to judicial proceedings;", "– furthermore, again in the context of these transactions, as soon as the lawyer is called upon for assistance in defending the client or in representing him before the courts, or for advice as to the manner of instituting or avoiding proceedings, that lawyer is exempt from the obligations of information and cooperation ( regardless of when the information was received).", "6. Recommendation No. R (2000) 21 of the Committee of Ministers of the Council of Europe to Member States on the freedom of exercise of the profession of lawyer (adopted on 25 October 2000)", "19. The relevant provisions of Recommendation No. R (2000) 21 read as follows :", "“ ... Desiring to promote the freedom of exercise of the profession of lawyer in order to strengthen the Rule of Law, in which lawyers take part, in particular in the role of defending individual freedoms;", "Conscious of the need for a fair system of administration of justice which guarantees the independence of lawyers in the discharge of their professional duties without any improper restriction, influence, inducement, pressure, threats or interference, direct or indirect, from any quarter of for any reason;", "...", "Principle I – General principles on the freedom of exercise of the profession of lawyer", "1. All necessary measures should be taken to respect, protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public, in particular in the light of the relevant provisions of the European Convention on Human Rights. ...", "6. All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer-client relationship. Exceptions to this principle should be allowed only if compatible with the Rule of Law. ”", "7. United Nations", "20. The relevant provisions of the “Basic Principles on the Role of Lawyers” (adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana from 27 August to 7 September 1990) state:", "“ 16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.", "...", "22. Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential. ”" ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 ( c), ARTICLE 8 AND ARTICLE 13 OF THE CONVENTION", "21. The applicants complained that the procedure for the search and seizure of documents at their place of business had breached professional confidentiality and infringed their defence rights. They also complained, regardless of the nature of the Court of Cassation ’ s supervision in France, that an appeal on points of law was not an effective remedy by which to complain of interferences with the right to respect for one ’ s home. They relied on Article 6 §§ 1 and 3 ( c) and Articles 8 and 13 of the Convention, the relevant provisions of which read as follows :", "Article 6 §§ 1 and 3 ( c)", "“ 1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [ a ] tribunal ...", "3. Everyone charged with a criminal offence has the following minimum rights:", "...", "( c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ... ”", "Article 8", "“ 1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 13", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The parties ’ submissions", "1. The Government", "22. The Government submitted that the complaints under Article 6 of the Convention should be dismissed as being incompatible ratione materiae with the provisions of the Convention, since tax disputes did not fall within the scope of Article 6 under its civil head ( they cited Ferrazzini v. Italy [GC], no. 44759/98, ECHR 2001-VII) and since the criminal head was unconnected to the facts of the case.", "23. As to the merits, the Government pointed out that the procedure at issue had been authorised by a judge who, together with the Court of Cassation, had also supervised it. They further noted that the record of the search showed that the liberties and detention judge had been contacted at the time of the search of the premises. They also stated that the Court of Cassation ’ s judgment did not constitute a “shift” in the case-law, but on the contrary confirmed a position that was already established and had subsequently been maintained. The Government submitted that there had been no infringement of the rights of the defence or any breach of professional secrecy; on the contrary, the Court of Cassation ’ s judgment of 11 December 2002 had struck a fair balance between the principle of individual liberty and the requirements of combating tax fraud. They lastly stated that the judge had observed that the applicants had been retained to assist and represent Clinique Les Roches Claires and had acted in that capacity on various occasions during the tax proceedings involving their client.", "24. With regard to Article 8 of the Convention, the Government submitted that the applicants had not exhausted domestic remedies since, in addition to an appeal on points of law, which they had lodged, two other remedies had been available to them: the first under Article 9 of the Civil Code, which guaranteed the right to respect for one ’ s private life, and the second by means of an action for damages against the State, through which they could have established, for example, that public officials had exceeded their authority and committed an error.", "25. As to the merits, the Government did not dispute that there had been interference with the applicants ’ right to respect for their home, but contended that the interference had been in accordance with the law, namely Article L. 16 B of the Code of Tax Procedure, and had pursued legitimate aims by seeking to protect the economic well-being of the country and the prevention of crime. Lastly, they submitted that the interference had been necessary in a democratic society ( citing Keslassy v. France ( dec. ), no. 51578/99, ECHR 2002-I). The warrant authorising the search had fully satisfied the requirements laid down by domestic legislation and European case - law, with special procedural guarantees.", "26. Finally, as regards the complaint under Article 13 of the Convention, the Government referred to their arguments in relation to the complaint under Article 8 and their references to domestic law and concluded that this complaint was manifestly ill-founded, all the more so because the Convention did not require a right of appeal, the existence of an appeal on points of law in itself being in conformity with the provisions of Article 13. They also pointed out that the Court had held that an appeal on points of law was a remedy that had to be attempted ( citing Civet v. France [GC], no. 29340/95, ECHR 1999-VI); the applicants had therefore used the remedy available to them which had enabled them to argue that there had been errors of law that could have affected the authorisation for the search of their premises and irregularities capable of rendering it void.", "2. The applicants", "27. The applicants submitted that the objections raised by the Government warranted no comment on their part, and reiterated the contents of their initial application.", "28. As to the merits, they argued that the Court of Cassation had shifted from its earlier case - law, since it had referred to “ sufficient evidence of a suspicion of tax fraud” without indicating who was suspected, whereas the earlier case - law of its Criminal Division had required the lawyer to have taken part in the fraud. They contended that such a position undermined the protection of the rights of the defence, and consequently the professional secrecy of lawyers, which should be applicable as regards any matter coming under the Convention.", "29. The applicants complained that it was possible to carry out searches of a lawyer ’ s premises where there was no suspicion that the lawyer had been involved in fraud. The first applicant stated in addition that he was merely his client ’ s lawyer – and, moreover, purely for matters of litigation and not legal advice – which meant that a number of documents covered by professional secrecy and required for the company ’ s defence were to be found at his practice.", "30. The applicants also complained of the lack of an effective remedy, contending that an appeal on points of law – the only remedy available against orders made on the basis of Article L. 16 B of the Code of Tax Procedure – did not constitute an effective remedy on account of the content and scope of the review conducted by the Court of Cassation.", "B. The Court ’ s assessment", "1. Admissibility", "31. As regards both the plea of inadmissibility ratione materiae raised by the Government and their argument that domestic remedies had not been exhausted, the Court observes that it has already found that Article 6 § 1 was applicable and dismissed pleas of inadmissibility in a similar case ( see Ravon v. France, no. 18497/03, §§ 24 - 26 and 35, 21 February 2008). The pleas raised in this case must therefore also be dismissed.", "32. Considering, further, that the application is not manifestly unfounded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds, the Court declares the application admissible.", "2. Merits", "( a) Complaint under Articles 6 and 13 of the Convention on account of the lack of effective judicial review", "33. Where, as is the case here, Article 6 § 1 applies, it constitutes a lex specialis in relation to Article 13: the safeguards of Article 6 § 1 implying the full panoply of a judicial procedure, are stricter than, and absorb, those of Article 13 (see, for example, Brualla Gómez de la Torre v. Spain, 19 December 1997, § 41, Reports of Judgments and Decisions 1997-VIII, and Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000-XI). It is therefore appropriate to examine this complaint under Article 6 § 1 alone, and hence to ascertain whether the applicants had access to a “ tribunal” in order to receive a decision on their “dispute”, following proceedings meeting the requirements of this provision.", "34. On this point, the Court observes that it has already ruled that the procedure provided for and outlined in Article L. 1 6 B of the Code of Tax Procedure does not meet the requirements of Article 6 § 1 of the Convention ( see Ravon, cited above, §§ 28 - 35). It sees no reason to depart from that finding in the instant case.", "35. Accordingly, there has been a violation of Article 6 § 1 of the Convention.", "( b) Complaint alleging a breach of professional secrecy", "36. The Court reiterates, firstly, that the term “ home ” appearing in Article 8 may extend to the offices of a member of a profession, for instance a lawyer ( see Niemietz v. Germany, 16 December 1992, § 30, Series A no. 251-B, and Roemen and Schmit v. Luxembourg, no. 51772/99, § 64, ECHR 2003-IV).", "37. Consequently, it considers that the search of the applicants ’ practice and the seizures carried out amount to interference with the exercise of their rights under paragraph 1 of Article 8 of the Convention.", "38. It considers that such interference was “ in accordance with the law ”. Article L. 16 B of the Code of Tax Procedure sets out the conditions that must be met in the event of a search, and the provisions of Articles 56 and 56-1 of the Code of Criminal Procedure, taken together, make express provision for observance of professional secrecy and the professional premises or private home of a lawyer. Furthermore, the applicants did not complain that the measures taken had lacked a legal basis, but that they were disproportionate and unnecessary in the circumstances of the case.", "39. The Court finds furthermore that the interference pursued a “legitimate aim”, that is, the prevention of public disorder and crime.", "40. As to whether the interference was “necessary”, the Court reiterates that “ the exceptions provided for in paragraph 2 of Article 8 are to be interpreted narrowly and the need for them in a given case must be convincingly established” ( see Crémieux v. France, 25 February 1993, § 38, Series A no. 256-B, and Roemen and Schmit, cited above, § 68 ).", "41. The Court considers that searches and seizures at the premises of a lawyer undoubtedly breach professional secrecy, which is the basis of the relationship of trust existing between a lawyer and his client. Furthermore, the safeguarding of professional secrecy is in particular the corollary of the right of a lawyer ’ s client not to incriminate himself, which presupposes that the authorities seek to prove their case without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the “person charged” ( see J.B. v. Switzerland, no. 31827/96, § 64, ECHR 2001-III; see also, among other authorities, Funke v. France, 25 February 1993, § 44, Series A no. 256-A ).", "42. Accordingly, although domestic law may make provision for searches of the practices of lawyers, it is essential that such searches are accompanied by particular safeguards. Likewise, the Convention does not prohibit the imposition on lawyers of certain obligations likely to concern their relationships with their clients. This is the case in particular where credible evidence is found of the participation of a lawyer in an offence (paragraph 15 above), or in connection with efforts to combat certain practices (paragraphs 17 - 18 above). On that account, however, it is vital to provide a strict framework for such measures, since lawyers occupy a vital position in the administration of justice and can, by virtue of their role as intermediary between litigants and the courts, be described as officers of the law.", "43. In the instant case, the Court notes that the search was accompanied by special procedural safeguards, since it was carried out in the presence of the chairman of the Bar Association of which the applicants were members. Furthermore, the presence of the chairman of the Bar Association and the observations concerning the safeguarding of professional secrecy, which the latter felt obliged to make with regard to the documents to be seized, were mentioned in the report on the operations.", "44. On the other hand, besides the fact that the judge who had authorised the search was not present, the presence of the chairman of the Bar Association and his specific objections were insufficient to prevent the actual inspection of all the documents at the practice, or their seizure. As regards in particular the seizure of the first applicant ’ s handwritten notes, the Court notes that it is not disputed that these were the lawyer ’ s personal documents and subject to professional secrecy, as maintained by the chairman of the Bar Association.", "45. Furthermore, the Court notes that the search warrant was drawn up in broad terms, the decision being limited to ordering the searches and seizures required to disclose evidence of misconduct at certain places at which documents and data carriers relating to the suspected fraud might be found, in particular at the applicants ’ place of business. Accordingly, the inspectors and police officers were given extensive powers.", "46. Lastly, and most importantly, the Court notes that the purpose of the search at issue was to discover at the premises of the applicants, purely in their capacity as the lawyers of the company suspected of fraud, documents which could establish the existence of such fraud on the company ’ s part and to use such documents in evidence against it. At no time were the applicants accused or suspected of having committed an offence or being involved in any fraud committed by their client.", "47. The Court therefore notes that in the present case, in the context of a tax inspection into the affairs of a company that was the applicants ’ client, the authorities targeted the applicants solely because of the difficulties encountered both in carrying out the necessary tax inspections and in finding “accounting, legal and corporate documents” confirming the suspicion that the client company was involved in fraud.", "48. In the light of the foregoing, the Court finds that, in the circumstances of the case, the search and seizures carried out at the applicants ’ premises were disproportionate to the aim pursued.", "49. There has therefore been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "50. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. ”", "A. Damage", "51. The applicants sought payment of 30, 000 euros (EUR) in respect of non-pecuniary damage.", "52. The Government submitted that a finding by the Court of a violation would in itself constitute sufficient redress for any non-pecuniary damage sustained by the applicants, any financial compensation being merely symbolic.", "53. The Court shares the Government ’ s view as regards the applicant company. However, it considers that the finding of a violation is not sufficient to afford redress for the non-pecuniary damage sustained by Mr André. Ruling on an equitable basis as required by Article 41, it awards him EUR 5, 000 under this head.", "B. Costs and expenses", "54. The applicants sought reimbursement of the costs they had incurred in presenting their case. They produced a bill for EUR 14, 352 ( comprising EUR 12, 000 in fees and EUR 2, 352 in VAT) issued by their representative in respect of the proceedings before the Court of Cassation and the Court.", "55. The Government submitted that any amount awarded should not exceed EUR 2 000.", "56. According to the Court ’ s case - law, an applicant can only seek reimbursement of costs and expenses in so far as they have been actually and necessarily incurred and are reasonable as to quantum. Furthermore, where the Court finds that there has been a violation of the Convention, it awards the applicant only those costs and expenses that have been incurred before the national courts for the prevention or redress of the violation. Having regard to the information available to it and the aforementioned criteria, the Court, ruling on an equitable basis as required by Article 41, awards them jointly EUR 10, 000 under this head.", "C. Default interest", "57. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1959 and lives in Vienna.", "6. The applicant is a practising lawyer by profession. He runs his law office with a partner.", "7. In 2005 criminal proceedings on suspicion of aggravated theft, aggravated fraud and embezzlement were opened against the applicant and a number of other persons by the Vienna Regional Criminal Court ( Landesgericht für Strafsachen ).", "8. On 21 February 2006 the investigating judge issued a search warrant for the applicant’s premises. The warrant authorised the search and seizure of the following items:", "“Documents, personal computers and discs, savings books, bank documents, deeds of gift and wills in favour of Dr Heinz Robathin, and any files concerning R. [name of one person] and G. [name of another person].”", "9. In its reasoning, the search warrant stated that the applicant was suspected firstly of having taken furniture, pictures and silver worth more than 50,000 euros (EUR) from Mr R. in December 2003 for personal enrichment; secondly, of having induced Mr G. to sign an agreement for a secured loan of EUR 150,000 in December 2004, which Mr G. then failed to receive; and thirdly, of having abused the power of attorney granted to him by Mr R. in order to make bank transfers, causing the latter financial damage of more than EUR 50,000 in September 2003.", "10. The search of the applicant’s business premises was carried out by police officers of the Federal Ministry of the Interior on 21 February 2006. The applicant, his defence counsel and a representative of the Vienna Bar Association were present. The police officers proceeded to search the applicant’s computer system, copying all files to disc. The representative of the Vienna Bar Association opposed this as being disproportionate since it was technically possible, by using appropriate search criteria, to search for and copy only those files which corresponded to the criteria set out in the search warrant. Having contacted the investigating judge, the police officers insisted on copying all files. On the proposal of the representative of the Vienna Bar Association, the police officers copied all data returned by a search for the names “R.” and “G.” to one disc and all other data to separate discs. All the discs were sealed.", "11. The report drawn up by the police officers lists the following seized items: (1) laptop, (2) CDs/DVDs of R./G. data, (3) CDs/DVDs of all Robathin law office data, and (4) copies of agendas.", "12. All these items were handed over to the investigating judge. Because the applicant opposed the search of the data, the Review Chamber ( Ratskammer ), a panel of three judges, of the Vienna Regional Criminal Court was called upon to decide whether they were to be examined or returned pursuant to Article 145 § 2 of the Code of Criminal Procedure ( Strafprozeßordnung ).", "13. On 3 March 2006 the Review Chamber authorised the examination of all the files. It repeated that there were grounds for suspecting the applicant of the offences described in the search warrant and noted that the data in issue had been seized in the context of the preliminary investigations in respect of the applicant and other persons. A lawyer could not rely on his duty of professional secrecy and the attendant guarantees of Article 152 § 1 of the Code of Criminal Procedure when he himself was the suspect. In sum, the examination of the seized files was necessary in order to investigate the offences.", "14. On 23 March 2006 the Vienna Bar Association contacted the Procurator General, suggesting that he lodge a plea of nullity for the preservation of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) in the applicant’s case. It submitted, in particular, that a search of a lawyer’s business premises risked impinging on his duty of professional secrecy.", "15. Pursuant to Article 139 of the Code of Criminal Procedure, the investigating judge had to give reasons when issuing a search warrant and to describe as clearly as possible which items were to be searched for and seized. In the applicant’s case it was open to doubt whether the search warrant had accurately described which items could be seized. Generally, only a search for particular files likely to be related to the offence in issue could be authorised. The same applied to searches of electronic data. A practising lawyer was obliged by law to have at his disposal a computer system fulfilling certain standards in order to communicate electronically with the courts. In fact, most lawyers also had all their files in electronic form. Standard software for law offices allowed full-text searches for any name or word and thus made it easy to narrow the search of data. In the present case such a search had returned results and thus the search warrant did not extend to the seizure of all of the law office’s data.", "16. For these reasons, the Bar Association argued that the seizure of all the data and the Review Chamber’s decision to permit the examination thereof had been excessive and therefore unlawful. The Review Chamber had failed to give any specific reasons why an examination of the data relating to Mr R. and Mr G. would not be sufficient. The applicant’s duty of professional secrecy could only be lifted in relation to the suspicion against him concerning two of his clients but not in respect of all his lawyer-client relationships. Moreover, the partner in his law office was not under any suspicion.", "17. By a letter of 12 April 2006 the Procurator General informed the Vienna Bar Association that he had not found any reason to lodge a plea of nullity for the preservation of the law.", "18. On 14 May 2009 the Vienna Regional Criminal Court convicted the applicant of embezzlement but acquitted him of the other charges. The court sentenced him to three years’ imprisonment, two of which were suspended on probation. On 22 December 2009 the Supreme Court dismissed the applicant’s and the public prosecutor’s pleas of nullity and on 10 March 2010 the Vienna Court of Appeal upheld the sentence. Subsequently, the applicant obtained evidence which had not been available to him at the time of the trial. He requested a reopening of the proceedings, which was granted and led to the applicant’s acquittal by the Vienna Regional Criminal Court’s judgment of 15 March 2011." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Provisions of the Code of Criminal Procedure relating to search and seizure", "19. Articles 139 to 149 of the Code of Criminal Procedure in the version in force at the material time concerned the search of premises and persons and the seizure of objects.", "20. Article 139 § 1 provided, in particular, that a search may be carried out only if there is reasonable suspicion that a person suspected of having committed an offence is hiding on the premises concerned, or that there are objects on the premises the possession or examination of which is relevant to a particular criminal investigation.", "21. Pursuant to Article 140 §§ 1 and 2, a search should, in general, be carried out only after the person concerned has been questioned, and only if the person sought has not come forward of his or her own volition or the object or objects sought have not been voluntarily produced and if the reasons warranting the search were not eliminated during the questioning. No such questioning is required where delay would be detrimental.", "22. Article 140 § 3 stated that a search may, as a rule, only be carried out on the basis of a reasoned search warrant issued by a judge.", "23. Pursuant to Article 142 §§ 2 and 3, the occupant of the premises subject to the search or, if he is unavailable, a relative of the occupant, must be present during the search. A report is to be drawn up and signed by all those present.", "24. Article 143 § 1 of the Code of Criminal Procedure provided that, if objects relevant to the investigation or subject to forfeiture or confiscation are found, they are to be listed and taken to the court for safe keeping or seized. It referred in this respect to Article 98, pursuant to which objects in safe keeping must be put into an envelope to be sealed by the court, or have a label attached so as to avoid any substitution or confusion.", "Article 145 read as follows:", "“1. When searching through documents, steps must be taken to ensure that their content does not become known to unauthorised persons.", "2. If the owner of the documents does not want to permit their being searched, they shall be sealed and deposited with the court; the Review Chamber must determine immediately whether they are to be examined or returned.”", "25. According to the courts’ case-law, which is endorsed by the opinion of academic writers (see Bertl/Vernier, Grundriss des österreichischen Strafprozessrechts, 7th edition), the provisions relevant to the search and seizure of paper documents also apply mutatis mutandis to the search and seizure of electronic data. If the owner of discs or hard drives on which data are stored objects to their being searched, the data storage devices are to be sealed and the Review Chamber must decide whether they may be examined.", "B. Provisions relating to the professional secrecy of lawyers", "26. Section 9 of the Austrian Lawyers Act regulates the professional duties of lawyers including, inter alia, the duty to maintain professional secrecy.", "27. Article 152 § 1 of the Code of Criminal Procedure exempts lawyers, notaries and business trustees from the obligation to give evidence as witnesses in respect of information given to them in the exercise of their profession.", "28. It is established case-law that documents which contain information subject to professional secrecy may not be seized and used in a criminal investigation.", "29. Pursuant to an instruction ( Erlaß ) of the Federal Minister of Justice of 21 July 1972, a representative of the competent Bar Association shall be present during the search of a lawyer’s office in order to ensure that the search does not encroach on professional secrecy.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "30. The applicant complained that the search and seizure of all his electronic data had violated his rights under Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "31. The Government contested that argument.", "A. Admissibility", "32. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "33. The applicant stated that under the Lawyers Act ( Rechtsanwaltsordnung ), he was bound by the duty of professional secrecy in respect of information which became known to him in the course of the exercise of his profession, where it was in the client’s interest for such information to remain secret. The principle of secrecy must not be circumvented by seizing documents or by hearing a lawyer’s employees as witnesses. In the present case, he argued that the data contained in the files concerning Mr R. and Mr G., which were covered by the search warrant, had been saved on separate storage devices. However, the search and seizure warrant had been vague and could not be considered to be in accordance with the law, or, in the alternative, the search and seizure of all his law office’s electronic data could not be considered proportionate and had thus not been necessary in a democratic society.", "34. Lastly, the applicant argued that his acquittal showed that there had been no basis for the suspicion against him. In the applicant’s view this confirmed that the search and seizure of all his electronic data had been disproportionate, if not arbitrary.", "35. The Government argued that the search and seizure had indeed been in accordance with the law. Referring to the Court’s finding in Wieser and Bicos Beteiligungen GmbH v. Austria (no. 74336/01, § 65, ECHR 2007 ‑ XI) that the search of a lawyer’s premises and his professional and business activities could have an impact on the lawyer’s duty of professional secrecy and consequently on the proper administration of justice as guaranteed by Article 6 of the Convention, the Government maintained that the search had been carried out in a way that had not interfered disproportionately with the applicant’s rights.", "36. The Government pointed out that while the principle of professional secrecy as expressed in the Lawyers Act served to protect the special relationship of confidence between a lawyer and a client, professional secrecy did not protect the lawyer himself against criminal prosecution or measures in connection with such prosecution. Turning to the present application, the Government stressed that the search had been carried out in the presence of a representative of the Bar Association, and in compliance with the relevant provisions of the Code of Criminal Procedure with a view to securing the guarantees of Article 8 of the Convention.", "37. As to the applicant’s claim that the examination of all his files had been excessive and disproportionate, the Government argued that in order to determine what was of relevance to the criminal proceedings, all the seized data had had to be searched, as some relevant documents might not have been detected by a comprehensive full-text search alone. A search of all files – at least on a superficial level – had therefore been necessary. As a result, the measure had served a legitimate aim and the applicant’s rights had been interfered with to the least extent possible. Thus, the measure could not be considered disproportionate. Furthermore, the search had not had any impact on the proper administration of justice as regards the relationship between the applicant and his other clients.", "38. The Government contested the applicant’s argument that his acquittal had to be taken into account when assessing whether the search and seizure of electronic data had been justified. They pointed out that, at the time when the search warrant was issued, there had been a reasonable suspicion against the applicant. The fact that, following his conviction, new evidence became available which led to the proceedings being reopened and then to his acquittal could not change this assessment.", "2. The Court’s assessment", "39. It is not in dispute between the parties that the measures complained of interfered with the applicant’s rights under Article 8 of the Convention. The Court finds that the search and seizure of electronic data constituted an interference with the applicant’s right to respect for his “correspondence” within the meaning of Article 8 of the Convention (see Wieser and Bicos Beteiligungen GmbH, cited above, § 45 with further references).", "40. As to the question whether the measure was in accordance with the law, the Court’s case-law has established that a measure must have some basis in domestic law, with the term “law” being understood in its “substantive” sense, not its “formal” one. In a sphere covered by statutory law, the “law” is the enactment in force as the competent courts have interpreted it (see Société Colas Est and Others v. France, no. 37971/97, § 43, ECHR 2002 ‑ III). In Kennedy v. the United Kingdom (no. 26839/05, § 151, 18 May 2010), the Court also held that the domestic law must be compatible with the rule of law and accessible to the person concerned, and that the person affected must be able to foresee the consequences of the domestic law for him (see, among many other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000 ‑ V; Liberty and Others v. the United Kingdom, no. 58243/00, § 59, 1 July 2008; and Iordachi and Others v. Moldova, no. 25198/02, § 37, 10 February 2009).", "41. The Court found in the case of Wieser and Bicos Beteiligungen GmbH (cited above, § 54) that the Austrian Code of Criminal Procedure did not contain specific provisions for the search and seizure of electronic data. However, it contained detailed provisions for the seizure of objects and, in addition, specific rules for the seizure of documents. It was established in the domestic courts’ case-law that these provisions also applied to the search and seizure of electronic data. Taking into consideration the criteria of compatibility with the rule of law, accessibility of the domestic law, and foreseeability of the consequences of the law, the Court accepts that the search and seizure was in “accordance with the law”. In so far as the applicant argues that the search warrant was too vague to be in accordance with the law, the Court considers that his argument raises questions rather of proportionality, which will be examined below.", "42. The search and seizure also pursued a legitimate aim, namely the prevention of crime.", "43. It thus remains for the Court to ascertain whether the measure complained of was “necessary in a democratic society”, in other words, whether the relationship between the aim sought to be achieved and the means employed can be considered proportionate.", "44. In comparable cases, the Court has examined whether domestic law and practice afforded adequate and effective safeguards against any abuse and arbitrariness (see, for instance, Société Colas Est and Others, cited above, § 48). Elements taken into consideration are, in particular, whether the search was based on a warrant issued by a judge and based on reasonable suspicion; whether the scope of the warrant was reasonably limited; and – where the search of a lawyer’s office was concerned – whether the search was carried out in the presence of an independent observer in order to ensure that materials subject to professional secrecy were not removed (see also Niemietz v. Germany, 16 December 1992, § 37, Series A no. 251 ‑ B; Tamosius v. the United Kingdom (dec.), no. 62002/00, ECHR 2002 ‑ VIII; and Wieser and Bicos Beteiligungen GmbH, cited above, § 57).", "45. In the present case the search and seizure complained of were based on a warrant issued by the investigating judge in the context of criminal proceedings against the applicant on suspicion of aggravated theft, aggravated fraud and embezzlement. He was suspected of having stolen valuables and of having defrauded substantial amounts of money from Mr. R. and Mr. G. The warrant gave details in respect of the alleged acts, the time of their commission and the damage allegedly caused.", "46. The Court disagrees with the applicant’s argument that his acquittal showed the lack of a reasonable suspicion from the beginning. Rather, the existence of reasonable suspicion is to be assessed at the time of issuing the search warrant. In the circumstances described above, the Court is satisfied that the search warrant was based on reasonable suspicion at that time. The fact that the applicant was eventually acquitted years later cannot change this assessment.", "47. Turning to the question whether the scope of the warrant was reasonably limited, the Court considers that the search warrant was couched in very broad terms. While limiting the search and seizure of files to those concerning R. and G., it authorised in a general and unlimited manner the search and seizure of documents, personal computers and discs, savings books, bank documents and deeds of gift and wills in favour of the applicant. The Court will therefore examine whether deficiencies in the limitation of the scope of the search and seizure warrant were offset by sufficient procedural safeguards, capable of protecting the applicant against any abuse or arbitrariness.", "48. As the Court has already noted in the case of Wieser and Bicos Beteiligungen GmbH (cited above, § 60) the Austrian Code of Criminal Procedure provides the following procedural safeguards as regards the search and seizure of documents and electronic data:", "(a) The occupant of the premises shall be present;", "(b) A report is to be drawn up at the end of the search and items seized are to be listed;", "(c) If the owner objects to the seizure of documents or data storage media they are to be sealed and put before the judge for a decision as to whether or not they are to be used for the investigation; and", "(d) In addition, as far as the search of a lawyer’s office is concerned, the presence of a representative of the Bar Association is required.", "49. In the present case, the search was carried out in the presence of the applicant, his defence counsel and a representative of the Vienna Bar Association. While all of the applicant’s electronic data were copied to discs, the police officers followed the proposal of the representative of the Bar Association and copied all data containing the names “R.” and “G.” to a separate disc. All the discs were sealed. A report was duly drawn up at the end of the search, listing all the items seized.", "50. The Court also notes that the applicant had a remedy against the examination of the seized data at his disposal, namely a complaint to the Review Chamber at the Regional Criminal Court. As the applicant opposed the search of the data, it was for the Review Chamber to decide which data could actually be examined. The Court has already noted above that the search warrant in the present case was couched in very broad terms whereas the description of the alleged criminal activities related exclusively to “R.” and “G.” (see paragraph 9 above). Nevertheless all of the applicant’s electronic data were copied to discs.", "51. In these circumstances, the manner in which the Review Chamber exercised its supervisory function is of particular importance. The Court notes that the Review Chamber gave only very brief and rather general reasons when authorising the search of all the electronic data from the applicant’s law office. In particular, it did not address the question whether it would be sufficient to search only those discs which contained data relating to “R.” and “G.”. Nor did it give any specific reasons for its finding that a search of all of the applicant’s data was necessary for the investigation. Thus, the way in which the Review Chamber exercised its supervision in the present case does not enable the Court to establish that the search of all of the applicant’s electronic data was proportionate in the circumstances.", "52. However, the facts of the case show that the alleged criminal activities, necessitating a search warrant, related solely to the relationship between the applicant and “R.” and “G.” Thus, the Court finds that there should be particular reasons to allow the search of all other data, having regard to the specific circumstances prevailing in a law office. However, in the present case, there were no such reasons either in the search warrant itself or in any other document. In these circumstances, the Court finds that the seizure and examination of all data went beyond what was necessary to achieve the legitimate aim. It follows that there has been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "53. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "54. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary and pecuniary damage, without further substantiating his claim or stating which amounts were claimed under which head.", "55. The Government asserted that there was no causal link between the violation in issue and the pecuniary damage alleged by the applicant.", "56. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "57. However, the Court considers that the applicant must have sustained some non-pecuniary damage. It thus awards the applicant, on an equitable basis, EUR 3,000 under this head, plus any tax that may be chargeable.", "B. Costs and expenses", "58. The applicant also claimed EUR 22,849.36 for the costs and expenses incurred before the domestic courts. This amount includes value-added tax. As far as claims for costs and expenses incurred in the Convention proceedings are concerned, the applicant stated that he would submit these at a later stage.", "59. The Government contested the claim for costs and expenses incurred before the domestic courts, arguing that the bills for costs and expenses only added up to the amount of EUR 22,749.36 and that the applicant had failed to show that the costs had been actually and necessarily incurred to prevent the violation of the Convention. The Government also argued that the applicant had failed to show that these costs were reasonable as to quantum.", "60. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,500 for costs and expenses in the domestic proceedings, plus any tax that may be chargeable to the applicant.", "61. Turning to the costs for the proceedings before the Court, it notes that the applicant did not make any claim for costs and expenses, despite having been instructed to do so by a letter dated 27 January 2009. The Court is therefore unable to make an award under this head.", "C. Default interest", "62. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Decisions on audit and coercive measureds relating to SNS", "6. From 20 January 2006 onwards the Tax Agency ( Skatteverket ) conducted audits of value-added tax, employers ’ social security contributions ( arbetsgivaravgifter ) and income tax at the three Swedish companies Ergonia Sweden AB, SNS-LAN Trading AB (“SNS”) and Mouse Trapper Nordic AB. The audit covered the period June 2001 – June 2005. On 4 March 2008 the Tax Agency applied to the County Administrative Court ( länsrätten ) in Stockholm for permission to take coercive measures in respect of SNS under section 8 of the Act on Special Coercive Measures in Taxation Procedures ( Lagen om särskilda tvångsåtgärder i beskattningsförfarandet, 1994:466 – hereafter “the Coercive Measures Act”), in particular the search and seizure of certain documents and other material.", "7. The Tax Agency ’ s application contained detailed information on what it had been able to establish in regard to the above-mentioned companies during the audits. The Agency stated that it suspected that significant amounts of money had been withheld from Swedish taxation through irregular transactions between SNS and a Swiss company. According to the Agency, the latter company had been established solely in order to evade taxes on some of the business profits in the above-mentioned Swedish companies. While it was considered highly likely that the persons owning or having a decisive influence in the Swedish companies, including a Mr Toivo Jurik, were also running the Swiss company, it had proved impossible to obtain information on ownership and control of the latter company from the persons involved, who claimed that they had no knowledge of these matters. After Mr Jurik had been shown an extract of the Swiss company register, where he was listed as an executive, he had admitted that he and another person involved in the Swedish companies had been present at the establishment of the Swiss company but that he was listed as an executive only for formal reasons. The other person mentioned had since stated that he would not assist the Tax Agency any further in the audit. The Agency therefore considered that it could not continue to investigate the ownership issue and the accuracy of certain business costs unless it obtained access to documents that showed the Swiss company ’ s relationship to the Swedish companies and their owners and leaders as well as the Swiss company ’ s role in the business activities. In the Agency ’ s view, there were no alternative means of review.", "8. Not considering it appropriate to order SNS to provide the required documents, the Tax Agency further requested that the application for coercive measures should not be communicated to the company and that it should not be notified of the court ’ s decision before the measures had been undertaken, as there was a risk that the documents to be searched and seized could be withheld or destroyed.", "9. As SNS had recently been liquidated and had not had its own business premises, the requested search should be made at two addresses connected to Mr Jurik, who had been responsible for the bookkeeping in all three audited companies and was also representing SNS in its contacts with the Tax Agency, and therefore could be expected to be in possession of the required documentation. Thus, the search should start at the registered premises of the parent company, Draupner Universal AB (“Draupner”), at the address P.O. Hallmans gata 15, Stockholm. This was a flat which, in addition to being owned by Draupner and serving as its registered address, was rented by Mr Jurik and used as a pied-à-terre. Draupner was owned by Mr Jurik ’ s children but was represented and run by Mr Jurik himself. If the necessary documents were not found at the first address, the search should continue at the office of Mr Jurik at the applicant law firm (whose name at the time was Hagenfeldt Advokatbyrå AB), at the address Döbelnsgatan 15, Stockholm.", "10. By a judgment of 10 March 2008 the County Administrative Court granted the Tax Agency ’ s application and ordered that the judgment was immediately enforceable. Agreeing with the Tax Agency, the court considered that there was a substantial risk that documents could be withheld, corrupted or destroyed and that, having regard to Mr Jurik ’ s connection with SNS and the two addresses in question, there was good reason to assume that the documents relevant to the audit of SNS were to be found at those addresses. While a search and seizure undertaken at a location different from the audited party ’ s business premises involved a particular encroachment on rights of integrity, the court found that, in the case at hand, the importance of the measures outweighed the intrusion caused.", "B. Enforcement proceedings", "11. The search of the two designated premises took place on 14 March 2008 and was conducted by officials of the Enforcement Authority ( kronofogdemyndigheten ) in Stockholm and several auditors of the Tax Agency. The flat was searched first. Present were Mr Carl Lindstrand, a lawyer of the applicant law firm, representing Mr Jurik (who was at the time in Switzerland), and – towards the end of the search – Mr Roland Möller, who, as an associate of the law firm, had been the liquidator of SNS and who was also the designated person to be served writs on behalf of Draupner in Sweden. According to the minutes of the proceedings, drawn up by one of the officers of the Enforcement Authority, the persons present were reminded of the possibility to request exemption of documents.", "C. Decisions on audit and coercive measures relating to Draupner", "12. During the search of the flat, material of interest that belonged to Draupner was found. Since Draupner had been involved in transactions connected with the activities of SNS, a decision to audit the company was taken on site by the audit manager of the Tax Agency. She also took an interim decision to use coercive measures against Draupner, in accordance with section 15 of the Coercive Measures Act. It was decided to search for and seize material relating to the audit of Draupner both at the flat and at the applicant law firm. In the latter respect, the decision referred to the fact that not only Mr Jurik but also Mr Möller had offices there.", "13. The need for an immediate decision and enforcement was explained by the substantial risk of corruption of material. The decision referred to sections 7-9 of the Coercive Measures Act and to the County Administrative Court ’ s judgment of 10 March 2008.", "D. Continued enforcement proceedings", "14. At the flat 19 files with accounting material, an external hard disk drive and a torn document were seized and the hard disk drive of a computer as well as a USB memory stick were copied (mirrored). This was specified in a report drawn up and submitted to the parties concerned the same day by the Enforcement Authority.", "15. The premises of the applicant law firm – that is, the offices of Mr Jurik and Mr Möller – were searched thereafter, again in the presence of Mr Lindstrand and Mr Möller. Attending was also a legal representative whom the applicant had appointed. The issue of possible exemption of documents was discussed and the representative was given a list of the officers attending. Cupboards, shelves and computers in the two offices were searched and a safe was opened by Mr Möller, all monitored by the applicant ’ s representative. However, no material of relevance was found on the premises. At the end of the proceedings, the applicant ’ s representative requested that the external hard disk drive and the USB memory stick – seized and copied, respectively, at the flat – be exempted from the audit.", "E. Appeals against the coercive measures relating to SNS", "16. The applicant and SNS appealed against the County Administrative Court ’ s judgment of 10 March 2008. On 7 April 2008 the Administrative Court of Appeal ( kammarrätten ) in Stockholm dismissed the applicant ’ s appeal and struck out the case in so far as it concerned SNS. In regard to the applicant, it stated that, while the appealed judgment did indeed allow the use of coercive measures on the premises of the applicant law firm, the reason for this was not that the law firm was the subject of the measures but that it could be assumed that documents relevant to the audit of SNS would be found there. In these circumstances, the appellate court concluded that the applicant was not affected by the appealed judgment in such a way that it was entitled to appeal against it. With respect to SNS, the court considered that, as the coercive measures had already been enforced, it did not have a justified interest in having them examined by a second judicial instance.", "17. By a decision of 19 June 2008 the Supreme Administrative Court ( Regeringsrätten ) refused the applicant and SNS leave to appeal. On 3 July 2008 the court dismissed an appeal in the same matter lodged by Mr Jurik, noting that he had not previously been a party to the case and could not therefore join the proceedings at the level of the Supreme Administrative Court.", "F. Appeals against the coercive measures relating to Draupner", "18. The Tax Agency ’ s interim decision of 14 March 2008 to use coercive measures against Draupner was referred to the County Administrative Court, which received it on 17 March 2008, the following Monday. The Agency stated as reasons for its decision that Draupner had had transactions connected to SNS, its subsidiary company, that there had been special reasons to search for material at the applicant law firm as two of Draupner ’ s representatives, Mr Jurik and Mr Möller, had offices there and that the risk of corruption of material was acute in view of the fact that, during the ongoing enforcement, it had become apparent to persons involved which transactions and connected documents were to be examined. Draupner requested that the decision be quashed, referring, inter alia, to attorney-client privilege pertaining to its representatives. By a judgment of 26 March 2008 the interim decision was confirmed by the court, which found that the seizure of the documents at issue had been justified. The court further considered that there was a substantial risk that the documents would be withheld, corrupted or destroyed if they were returned.", "19. Draupner and Mr Jurik appealed to the Administrative Court of Appeal. On 22 August 2008 the court struck out Draupner ’ s appeal and dismissed that of Mr Jurik. As in the similar case concerning SNS (see paragraph 16 above), the court took into account that the coercive measures had already been enforced and considered therefore that Draupner did not have a justified interest in having them examined by a second judicial instance. In regard to Mr Jurik, it was noted that he had not been a party to the case at the lower court.", "20. On 28 January 2009 the Supreme Administrative Court refused Draupner leave to appeal.", "G. Appeals against the decision to audit Draupner", "21. Draupner also appealed against the Tax Agency ’ s decision of 14 March 2008 to conduct an audit. On 18 June 2008 the Tax Agency dismissed the appeal because, in accordance with Chapter 6, section 2 of the Tax Assessment Act ( Taxeringslagen; 1990:324), no appeal lay against such a decision. This determination was upheld by the County Administrative Court on 11 July 2008.", "22. On 19 September 2008 the Administrative Court of Appeal quashed the Tax Agency ’ s decision to dismiss the appeal and the County Administrative Court ’ s judgment and referred the case back to the County Administrative Court. The appellate court found that the Tax Agency had lacked a legal basis for its decision; instead of dismissing Draupner ’ s appeal, it should have submitted it to the County Administrative Court for determination.", "23. After a new examination of the case, the County Administrative Court dismissed the appeal in a decision of 3 October 2008, finding that no appeal lay against a decision to conduct a tax audit and that the European Convention was not applicable to such a decision. In addition, it noted that, while the audit decision itself did not involve any harm to Draupner, possible detriment caused by the audit procedure could be removed or mitigated through a request for the exemption of documents from the audit. Such a request was at the time already under examination by the court (see paragraphs 3 5-43 below).", "24. On 15 January 2009 the Administrative Court of Appeal rejected Draupner ’ s further appeal, agreeing with the lower court ’ s assessment.", "H. The applicant ’ s request for exemption of documents", "25. By a letter dated 14 March 2008, the day of the search of the flat and the law office, and received by the County Administrative Court on 17 March 2008, the applicant requested that those parts of the material seized and copied at the flat that could concern the law firm be exempted from the audit. It mentioned, in particular, the external hard disk drive and the USB memory stick. Noting that both SNS and Draupner were clients of the law firm, the applicant argued that the material it sought to have exempted was protected by attorney-client privilege.", "26. By a decision of 26 March 2008 the County Administrative Court dismissed the request, finding that the applicant lacked legal standing in the matter. It noted that the material had been seized from Draupner and was therefore not under the applicant ’ s right of disposition.", "27. The applicant appealed to the Administrative Court of Appeal, demanding that all seized and copied material except for the files with accounting material be exempted. It also requested that an oral hearing be held on the question of its legal standing in the matter. Mr Jurik joined the applicant ’ s appeal.", "28. On 18 April 2008 the Administrative Court of Appeal refused the request for an oral hearing, finding it unnecessary.", "29. By a judgment of 22 August 2008 the Administrative Court of Appeal rejected the applicant ’ s appeal and agreed with the lower court that the applicant did not have legal standing concerning the requested exemption of documents, as the coercive measures had not been directed against the law firm. Mr Jurik ’ s appeal was dismissed, as he had not been a party to the case at the lower court.", "30. The applicant made a further appeal, stating, among other things, that the Tax Agency ’ s original interim decision of 14 March 2008 concerning Draupner and the County Administrative Court ’ s judgment of 26 March 2008 confirming that decision had been directed against the law firm because they allowed a search in the firm ’ s offices. Moreover, the coercive measures employed had led to the seizure of material which allegedly belonged to the applicant and could contain information covered by attorney-client privilege. In the latter respect, the applicant claimed that the external hard disk drive and the USB memory stick had been used by its associate lawyer Mr Jurik in his work for the firm.", "31. On 28 January 2009 the Supreme Administrative Court refused the applicant leave to appeal.", "I. Proceedings concerning disqualification of judge", "32. In the decision of the Administrative Court of Appeal of 18 April 2008 not to hold an oral hearing (see paragraph 28 above) three judges participated, one of whom was a co-opted member ( adjungerad ledamot ). She was also a civil servant at the Tax Agency, albeit formally on leave of absence while temporarily serving with the court. The Tax Agency being the opposing party, the applicant challenged her impartiality and called for her disqualification from the case.", "33. On 14 May 2008 the Administrative Court of Appeal, sitting in a different formation, rejected the objection, noting that the co-opted member was on leave from her post at the Tax Agency.", "34. By a judgment of 5 March 2009 the Supreme Administrative Court, which had regard to Strasbourg case-law, rejected the applicant ’ s appeal, declaring that the objection had not been justified. It considered that the issue of objective impartiality had to be examined in light of the individual character of the case at hand. In this respect, it noted that the co-opted member ’ s tasks at the Tax Agency had concerned activities of a different type than those relevant in the case and had been performed in a different part of the country. Furthermore, she was only one of three judges participating in the decision in question, which had concerned a request for an oral hearing. She had not participated in the judgment on the merits of the case.", "J. Draupner ’ s requests for exemption of documents", "35. Draupner, represented by Mr Lindstrand, requested that all material seized or copied during the audit be exempted, in particular because it contained information protected by attorney-client privilege pertaining to the applicant law firm and its clients.", "36. On 16 October 2008 the County Administrative Court rejected the request. It stated that Draupner was the subject of a tax audit and that all electronic or paper documents linked to the company ’ s business found on its premises should be considered as belonging to it and being eligible for examination in the audit. The court noted that the company register listed Mr Jurik as a board member and signatory of Draupner. Furthermore, the available evidence in the case showed that he was the representative of the company and that the flat where the search and seizure had taken place constituted the company ’ s business premises. As the documents at issue had been found at that flat, they should be considered to belong to Draupner, concern its business and, as a rule, be included in the audit. While the coercive measures used could not therefore be considered to have contravened the Coercive Measures Act or the Convention, the question remained whether there were reasons to exempt some or all of the material. Noting that the burden of proof rested with the audited party, the court considered that the company had not demonstrated that the documents were covered by any of the exemptions under the Act.", "37. Upon Draupner ’ s appeal, the Administrative Court of Appeal, on 5 March 2009, decided to quash the County Administrative Court ’ s judgment and refer the case back to that court. The appellate court found that the lower court had not examined the contents of all the documents, which was a requirement for the assessment of the question of exemption.", "38. The County Administrative Court then directed Draupner to specify its request in greater detail, which the company did. By a judgment of 14 September 2009 the court rejected the company ’ s requests for an oral hearing and an inspection of the flat but granted that a few seized documents be exempted from examination by the Tax Agency, as they were considered to be Mr Jurik ’ s private documents. It further considered that deleted files, which were readable only after reconstruction, could not be the object of a seizure under the Coercive Measures Act and could therefore neither be exempted nor used by the Tax Agency.", "39. Draupner and the Tax Agency appealed. Draupner agreed that 17 of the 19 files seized on 14 March 2008 could be handed over to the Tax Agency for examination, following which the request for exemption concerned the remaining material seized and copied on that day. The Tax Agency requested that it be allowed to examine deleted and reconstructed data files.", "40. On 14 September 2010 the Administrative Court of Appeal rejected Draupner ’ s appeal, but granted that of the Tax Agency. Draupner ’ s procedural requests for an oral hearing and an inspection were rejected, but the court held a preparatory meeting with the parties to determine the continued proceedings in the case, notably the method for examining the disputed material. The court found that, due to the extremely extensive data material – more than 300,000 files and entries –, it was impossible to examine each and every data file, and the Tax Agency was therefore instructed to list the documents and files it considered as part of its examination after which Draupner would have an opportunity to lodge a new request for exemption. The appellate court agreed with the County Administrative Court ’ s assessments that the material, including the hard disk drive and the USB memory stick, had been seized on Draupner ’ s business premises, that there was, accordingly, a presumption that it was included in the audit and eligible for the Tax Agency ’ s examination and that the burden of proof for exemptions rested with the company, even though a modest level of evidence was sufficient. With regard to Draupner ’ s assertion that certain documents came under attorney-client privilege, the court noted that the Tax Agency had not ordered a law firm to provide information in the case and that the documents had not been seized at a law firm. It also considered that the particular circumstances of the case did not show that certain documents were protected by such privilege.", "41. On 15 November 2010 the Supreme Administrative Court refused Draupner leave to appeal.", "42. After the Tax Agency had listed the documents and files it wished to examine, Draupner made a new application for exemption of documents which was partially approved by the County Administrative Court on 24 November 2011 in regard to some documents which were considered to be of a private nature. However, none of the documents for which exemption had been requested were found to have such content that attorney-client privilege applied.", "43. On 21 February 2012 the Administrative Court of Appeal upheld the lower court ’ s judgment. On 8 May 2012 the Supreme Administrative Court (now Högsta förvaltningsdomstolen ) refused Draupner leave to appeal.", "K. Other events", "44. The applicant and Mr Jurik made a complaint to the Parliamentary Ombudsman ( Justitieombudsmannen ) against the handling of the case by the Tax Agency, the County Administrative Court and the Administrative Court of Appeal and assessments made by these instances. On 11 December 2008 the Ombudsman found no reason to take action.", "45. The applicant also petitioned for a re-opening of the Supreme Administrative Court ’ s decision of 28 January 2009 not to grant leave to appeal in the case concerning the applicant ’ s request for exemption of documents. This petition was rejected by the Supreme Administrative Court on 20 September 2010.", "46. The audits concerning SNS and Draupner were eventually discontinued and no taxation decisions were taken on the basis of the audits. All documents were returned to Draupner. Like SNS, Draupner has since been liquidated." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Coercive measures in tax procedures", "47. At the relevant time, the Coercive Measures Act regulated tax audits and other control procedures relating to taxes and other fees levied pursuant to, inter alia, the Tax Assessment Act. Measures that could be ordered under the Act included audits on the party ’ s business premises, searches for and seizure of documents as well as the sealing of premises, storage areas or other spaces (section 2). Documents that could be searched and seized included those that could only be read with the aid of a technical device (section 3). Coercive measures could only be ordered if the grounds therefor were of such importance that they outweighed the intrusion or other detriment it entailed for the individual (section 4).", "48. Audits on business premises could be undertaken even if the audited party had not agreed to it or had failed to co-operate in the audit or if there was a substantial risk that the party would withhold, corrupt or destroy documents or other material relevant to the audit. In the latter case, the audit could be carried out without the audited party having been notified (section 5). Documents and other material covered by the audit could be searched for and seized during such an audit (section 6). Also when an audit was not conducted on the audited party ’ s business premises, search and seizure could be made on the premises if an order to release a document covered by the audit had not been followed or there was a substantial risk of its withholding, corruption or destruction. Under those conditions, the measure could be undertaken without prior notification to the audited party (section 7). Documents covered by the audit could, under the conditions stipulated in section 7, be searched for and seized also on premises, in storage areas or in other places that were not part of the audited party ’ s business premises provided that there was a particular reason to assume that the documents could be found there (section 8).", "49. Decisions on coercive measures were taken by a county administrative court, except for decisions under section 6 which fell under the authority of the audit manager (section 14). However, if there was a substantial risk that documents and other material of significance to the audit be withheld, corrupted or destroyed before the court could take a decision, the audit manager could take decisions to use also the other coercive measures mentioned above, provided that they concerned only business premises. Such a decision by the audit manager had to be submitted immediately for review to the court, which was required to determine without delay whether the manager ’ s decision should stand. If the decision was revoked, the court should decide that seized documents be returned and other information gathered be destroyed (section 15).", "50. Exemptions from coercive measures could be granted at the request of the individual for documents that contained information covered by rules of professional secrecy. Section 16 of the Coercive Measures Act provided:", "“At the request of the individual, measures under this Act do not comprise", "1. a document which may not be seized according to Chapter 27, section 2 of the Code of Judicial Procedure [ Rättegångsbalken ],", "2. another document to which a significant protection interest is attached, if the contents of the document, due to particular circumstances, should not come to another person ’ s knowledge.", "A document referred to in the first paragraph at 2 may be excluded only if the protection interest of the document is greater than its importance for the control procedure.”", "At the material time, Chapter 27, section 2 of the Code of Judicial Procedure stipulated:", "“If it can be assumed that a document contains information that an official or other person may not disclose under testimony under Chapter 36, Section 5, the document may not be seized from the possession of that person or the person who is owed the duty of confidentiality. ... ”", "In so far as relevant, subsections 2 and 3 of Chapter 36, Section 5 of the Code provided as follows:", "“Advocates ... and their counsel may testify concerning matters entrusted to, or found out by, them in their professional capacity only if this is authorised by law or is consented to by the person for whose benefit the duty of secrecy applies. ...", "Attorneys, legal representatives or defence counsel may be heard as a witness concerning matters entrusted to them in the performance of their assignment only if the party gives consent.”", "In the case NJA 1990 p. 537 the Supreme Court examined whether there was a legal basis for the seizure on the premises of a law firm of certain documents concerning a company, of which the owner of the law firm was a board member. Since the case concerned suspected tax offences, it did not involve measures under the Coercive Measures Act but rather the application of the protection of professional secrecy under Chapter 27, section 2 of the Code of Judicial Procedure. The Supreme Court stated that, if a lawyer claimed that there were impediments to seizing documents, a modest level of evidence should be considered sufficient in order to avoid undermining legal professional privilege too much. In the case at hand, the court found that it could be assumed that all the documents in question contained information that had been confided to the lawyer in his professional capacity or that he had learned of in that capacity. Consequently, as the documents were protected under Chapter 27, section 2, their seizure lacked a legal basis.", "51. If a request for exemption of a document was made, the document should, if the audit manager considered that it needed to be audited, immediately be sealed and presented to the administrative court, which had to decide on the issue of exemption without delay. In regard to recordings which could only be read, listened to or otherwise understood through the use of technical means, the court decided in what form or in what way they were to be presented in the case. If the individual considered that a document was not covered by the audit, the issue of exemption was dealt with by the court in a corresponding manner (section 17). The court could also order that the use of technical devices and search criteria be limited so that a recording exempted from examination did not become accessible to the tax authority (section 18).", "52. Decisions on coercive measures were immediately enforceable and were carried out by the Enforcement Authority at the request of the audit manager (section 21). Unless otherwise prescribed in the decision, the person on whom the decision was to be enforced and any other person affected by it should be notified of the decision and given the opportunity to be present themselves or through an authorised representative and to summon a legal counsel before the decision was enforced. If a person to be notified could not be reached, the decision could be enforced only if there were exceptional reasons. Moreover, enforcement could not be initiated before those who had a right to be present had had reasonable time to appear. If an audit manager, during an audit, had decided to search for and seize certain documents (see section 6, mentioned at paragraph 48 above), the person concerned was to be notified immediately after the measure had been enforced (section 22).", "53. Coercive measures were to be enforced in such a way as to cause the least possible inconvenience to those affected (section 23). If a document was seized, binders, folders or other storage materials in which the document was stored could also be taken. Technical devices could be seized only in exceptional circumstances. If computerised records were seized, copies should, where possible, be left with the owner (section 24). Documents and other items that had been seized had to be returned as soon as they were no longer needed (section 26). A record of the enforcement should be issued, containing details of when and where the decision on coercive measures was enforced, who was present and anything else of significance that arose during the enforcement. If documents or anything else had been seized, the record also had to include a list of these items. The record was to be submitted to the person on whom the coercive measure had been enforced and any other person affected by the measure (section 27).", "B. Right to appeal to the administrative courts", "54. The right to appeal against a decision by a public authority is regulated in section 22 of the Public Administration Act ( Förvaltningslagen, 1986:223):", "“A decision may be appealed against by the person concerned by it, if it goes against him and an appeal lie against the decision.”", "55. With respect to further appeals, section 33 of the Administrative Court Procedure Act ( Förvaltningsprocesslagen, 1971:291) stipulates, in so far as relevant, the following:", "“A decision by a county administrative court is appealed against to an administrative court of appeal. A decision by an administrative court of appeal is appealed against to the Supreme Administrative Court.", "The decision may be appealed against by the person concerned by it, if it goes against him or her.", "... ”", "C. Co-opted members of court and disqualification of judges", "56. In the Swedish court system, not only permanent judges, but also ‘ non-permanent judges ’, such as co-opted members, adjudicate cases. Under section 44(1) of the Administrative Courts of Appeal Instructions Ordinance ( Förordning med kammarrättsinstruktion; 1996:380 ), these courts may appoint as a co-opted member (1) a person who is or has been a permanent judge, or who is or has been a chief judge or a judge appointed by the government for a fixed term, (2) a person who has been employed as a reporting clerk at an administrative court of appeal or a court of appeal and who has subsequently served at least one year as an assistant judge at an administrative court or a district court, or as a judge or a chief judge, (3) a prosecutor, (4) a legally trained professor or associate professor of a legal discipline or other legally trained person with many years ’ experience in a branch of law of relevance to the administrative court of appeal, (5) a member of the Swedish Bar Association, or (6) a person who has previously been a co-opted member. A co-opted member is appointed by the Administrative Court of Appeal for a particular case or for a fixed term, and in principle carries out the same duties as a permanent judge.", "57. In regard to the disqualification of judges, section 41 of the Administrative Court Procedure Act refers to Chapter 4, section 13 of the Code of Judicial Procedure. The latter provision reads as follows:", "“A judge shall be disqualified from hearing a case:", "1. if he is a party to or otherwise has an interest in the case or can expect particular advantage or injury from its outcome;", "2. if he and one of the parties are, or have been, married or are related by blood or marriage in direct line of ancestry or descent, or are siblings, or are so related by marriage that one of them is, or has been, married to a sibling of the other, or if he is similarly related to one of the parties;", "3. if he is related, as specified in point 2, to anyone who has an interest in the case or can expect particular advantage or injury from its outcome;", "4. if he or anyone closely related to him, as specified in point 2, is a guardian, custodian or administrator or otherwise serves as legal representative of a party, or is a member of the board of a corporation, association or similar society, foundation or similar institution which is a party, or, when a municipality or similar community is a party, if he is a member of a committee or board in charge of the administration of the matter at issue in the case;", "5. if he or anyone closely related to him, as specified in point 2, is related in the way stated in point 4 to anyone who has an interest in the case or can expect particular advantage or injury from its outcome;", "6. if he is the adversary of a party, though not if the party has initiated litigation against him in order to disqualify him;", "7. if he, as a judge or officer in another court, has rendered a decision concerning the matter at issue, or if he, for an authority other than a court or as an arbitrator, has dealt with the matter;", "8. if he, prior to a main hearing in a criminal case, has determined the issue of whether the defendant has committed the act;", "9. if he has served in the case as an attorney for, or counselled, one of the parties, or has been a witness or an expert therein; or", "10. if there is some other special circumstance that is likely to undermine confidence in his impartiality in the case.”", "This provision applies to all judges, including co-opted members of a court.", "D. Compensation for violations of the Convention", "1. Case-law developments", "58. In a judgment of 9 June 2005 (NJA 2005 p. 462) the Supreme Court dealt with a claim for damages brought by an individual against the Swedish State, inter alia, on the basis of an alleged violation of Article 6 of the Convention. The case concerned the excessive length of criminal proceedings and the Supreme Court held that the plaintiff ’ s right under Article 6 of the Convention to have the criminal charges against him determined within a reasonable time had been violated. Based on this finding and with reference, inter alia, to Articles 6 and 13 of the Convention and the Court ’ s case-law under these provisions, in particular the case of Kudła v. Poland ([GC], no. 30210/96, ECHR 2000-XI), the Supreme Court concluded that the plaintiff was entitled to compensation under Swedish law for both pecuniary and non-pecuniary damage. With respect to the level of compensation for non-pecuniary damage, the Supreme Court took note of the criteria established in the Court ’ s case-law stating that the Court ’ s practice constituted a natural point of departure in this regard.", "59. In subsequent judgments and decisions the Supreme Court examined claims for damages in respect of various specific matters where violations of Articles 2, 5 and 8 of the Convention were alleged and where compensation could not be awarded directly under the Tort Liability Act ( Skadeståndslagen, 1972:207) or special legislation. These determinations extended the scope of application of compensation awards based on the Convention and the Court ’ s case-law (see NJA 2007 p. 295, NJA 2007 p. 584 and NJA 2007 p. 891).", "60. In a judgment of 3 December 2009 (NJA 2009 N 70), the Supreme Court confirmed its previous case-law in a case concerning claims for damages against the Swedish State on account of excessive length of tax proceedings. The court affirmed that it was now a general principle of law that, to the extent that Sweden had a duty to provide redress to victims of Convention violations through a right to compensation for damages, and that this duty could not be fulfilled even by interpreting national tort law in accordance with the Convention, compensation for damages could be ordered without direct support in law.", "61. In line with this last judgment, the Supreme Court has continued to deal with cases involving various Articles of the Convention and its Protocols (see, for example, NJA 2010 p. 363, NJA 2012 p. 211, NJA 2012 p. 1038 and NJA 2013 p. 813, dealing with Article 6 § 1 alone or taken together with Article 13; NJA 2013 p. 502 and NJA 2013 p. 746, concerning Article 4 of Protocol No. 7 alone and in combination with Article 13; and NJA 2013 p. 1055, relating to Article 6 § 2 and Article 8).", "2. Other developments", "62. Since the autumn of 2007, following the Supreme Court ’ s case-law developments (as set out above), the Office of the Chancellor of Justice ( Justitiekanslern ) has dealt with a large number of requests from individuals for compensation on the basis of violations of the Convention. In 2011, the Office estimated that it had dealt with roughly 1000 cases over the previous three years. During this time the Chancellor of Justice had also represented the Swedish State in a number of cases before the civil courts concerning alleged violations of the Convention. A majority of the cases that the Office had dealt with had concerned non-pecuniary damages for excessive length of proceedings under Article 6 § 1 of the Convention. Since November 2009, it had received more than 400 such complaints, and in more than half of them the Chancellor had found a violation and granted compensation. Furthermore, the Chancellor had dealt with a substantial number of cases (around 160) concerning the registration of individuals in the Security Police register. These cases had concerned one or more of Articles 8, 1 0, 11 and 13 of the Convention. Since 2011 there have been many other compensation cases determined by the Chancellor of Justice relating to alleged violations of Articles 3, 5, 6, 7, 8, 9, 13 and 14 of the Convention as well as Article 1 of Protocol No. 1, among others.", "THE LAW", "I. PRELIMINARY OBJECTION", "A. The parties ’ submissions", "63. The Government contended that the applicant had failed to exhaust domestic remedies available to them since it had not turned to the domestic courts or the Chancellor of Justice to claim compensation on the basis of the alleged violations of the Convention. With reference to the Court ’ s recent case-law, in particular Eskilsson v. Sweden ((dec.), no. 14628/08, 24 January 2012) and Eriksson v. Sweden (no. 60437/08, 12 April 2012), the Government argued that Swedish law provided a remedy in the form of compensation for both pecuniary and non-pecuniary damage in respect of any breach of the Convention and that this remedy had been available to the applicant for the purpose of Article 35 § 1 of the Convention at the time when the application was lodged with the Court or, in any event, that it had since become available to it. In the Government ’ s view, there were no circumstances that exempted the applicant from the obligation to use this remedy. They also noted that, since the limitation period of such a claim was ten years from the point in time when the damage occurred, the remedy was still open to the applicant.", "64. The applicant disagreed with the Government. It asserted that the compensation remedy in question was not accessible and effective due to its limited scope and field of application. In any event, it had not been obliged to pursue this remedy since an applicant was only required to exhaust one potentially effective remedy, which the applicant had done by making full use of the remedies provided by Swedish administrative law before the administrative courts. In this connection, the applicant also mentioned that it had made a complaint to the Parliamentary Ombudsman and petitioned the Supreme Administrative Court for a re-opening of the case concerning its request for exemption of documents.", "B. The Court ’ s assessment", "65. The purpose of the requirement under Article 35 § 1 of the Convention is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Thus, the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, with further references, and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-70, 25 March 2014 ).", "66. However, the only remedies which Article 35 § 1 requires to be exhausted are those that relate to the breach alleged and are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness: it falls to the respondent State to establish that these conditions are satisfied (see, among many other authorities, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII, and McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010 ).", "67. In several recent judgments and decisions, the Court has considered that there exists an effective remedy in Sweden that is capable of affording redress in respect of alleged violations of the Convention. Reference has been made to the case-law established by the Supreme Court and the Chancellor of Justice in recent years and their continued development of precedents in this domain. In particular, the Supreme Court judgment of 3 December 2009 (see paragraph 60 above) affirmed that it is a general principle of law that compensation for Convention violations can be ordered without direct support in Swedish law, to the extent that Sweden has a duty to provide redress to victims of Convention violations through a right to compensation for damages. This judgment shifted the Supreme Court ’ s case-law from establishing precedent in specific matters to introducing a general principle for the domestic courts and the Chancellor of Justice to follow in cases relating to all claims for compensation for alleged violations of the Convention. Consequently, the Court has found that potential applicants may, as a general rule, be expected to lodge a domestic claim for compensation for alleged breaches of the Convention before applying to the Court (see Eriksson, cited above, §§ 50-52; Ruminski (dec.), no. 10404/10, §§ 37 and 39, 21 May 2013; and Marinkovic (dec.), no. 43570/10, §§ 39 and 41, 10 December 2013 ).", "68. Having said that, the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see for example, Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX, and Henriksson v. Sweden (dec.), no. 7396/10, § 44, 21 October 2014).", "69. The present application, with claims of violations of Articles 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1, was introduced on 3 April 2009. At that time, the Supreme Court and the Chancellor of Justice had already examined requests for compensation based on alleged breaches of the Articles mentioned, but, rather than establishing a general principle, their judgments and decisions had concerned specific matters which did not, in substance, resemble the issues arising in the present application. It cannot be said, therefore, that there was a domestic compensation remedy available to the applicant at the time when the application was lodged with the Court. Furthermore, the Court does not find any particular circumstances in this case to justify a departure from the general principle on the relevant date for the assessment of the exhaustion requirement.", "70. Consequently, the Court finds that, in the instant case, it could not be required of the applicant to pursue the remedy invoked by the Government. The Government ’ s objection as to the exhaustion of domestic remedies must therefore be dismissed.", "71. The Court further notes that the complaints under Article 8 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. Accordingly, with the exception of the complaint under Article 6 of the Convention (see paragraph 113 below), the application is declared admissible.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "72. The applicant complained that the Tax Agency, through the decisions and judgments on coercive measures, had been given access to search its premises, thereby infringing its rights under Article 8 of the Convention. This provision reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The parties ’ submissions", "1. The applicant", "73. The applicant pointed out that, according to the Court ’ s case-law, a search of a law firm ’ s premises constituted an interference with “private life” and “correspondence” and – potentially – “home” under Article 8. Also, documents and information entrusted to a law firm by its clients were protected under Article 8 as part of attorney-client privilege.", "74. The applicant questioned whether a search and seizure at a law firm ’ s offices was at all allowed under Swedish law, in particular the Code of Judicial Procedure. In any event, the relationship between the Coercive Measures Act and the applicable laws and regulations regarding the protection of information subject to client confidentiality was allegedly unclear, resulting in the law failing to meet the requirements of foreseeability and compatibility with the rule of law. Even if there was a domestic legal basis for the search of the applicant ’ s office, the applicable legislation had not been precise enough.", "75. The applicant further claimed that it was the owner of the USB memory stick and the external hard disk drive seized at the flat and that this data media had been used by Mr Jurik, the applicant ’ s associate, while performing work for the applicant from his home and at a distance. In this connection, the applicant argued that the flat in question had not been the business premises of Draupner but the private dwelling of Mr Jurik. The courts had based their conclusion that the data media belonged to Draupner on a presumption and, although Draupner had presented arguments provided by the applicant to the effect that the media belonged to the applicant and contained privileged information, the applicant itself had not been able to argue its ownership of the media as it had been denied legal standing in the matter. Moreover, while the information on the media was covered by secrecy in the taxation proceedings, professional secrecy should apply also in relation to the Tax Agency and the courts. The principle of attorney-client privilege had thus been infringed upon.", "76. Even if the Court ’ s case-law did not completely exclude the search of a lawyer ’ s office, the applicant was of the opinion that due caution had not been exercised in the instant case. Allegedly, the conditions of the Coercive Measures Act had not been met, as illustrated by the fact that the Tax Agency ’ s audits had not led to any remarks or levying of additional taxes. Thus, there could not have been any “reasonable suspicions” but only misconceived speculations on the part of the Agency. There had not been any safeguards in place to protect the applicant, or its clients, against abuse and the enforcement measures could rather be described as a “fishing expedition”. The applicant also claimed that its professional reputation had been harmed. It argued that the case had attracted publicity and that this publicity had been one of the considerations which had led the law firm to change its name in 2009. Stating that it provided qualified services to, among others, other law firms and legal practitioners, the applicant emphasised the importance of retaining a good reputation among its peers.", "77. In conclusion, the applicant asserted that both the search of its offices and the seizure of data media allegedly belonging to it had been disproportionate in relation to the legitimate aims pursued.", "2. The respondent Government", "78. The Government acknowledged that there had been an interference with the applicant ’ s rights under Article 8 as concerned the search of its offices. They disputed, however, that there had been such an interference in relation to the seizure of the USB memory stick and the external hard disk drive since the domestic courts had reasonably considered that those items belonged to Draupner and not the applicant, in accordance with the presumption that any documents found on the premises linked to a business should be presumed to belong to that business. Nor had the search of the flat interfered with the applicant ’ s rights as it did not belong to the applicant but had been the business premises of Draupner, as concluded by the courts in several decisions. With respect to the search of the applicant ’ s offices, the Government further asserted that it had been in accordance with the law and necessary in a democratic society and that, thus, it had not involved a violation of Article 8.", "79. As regards the search ’ s compliance with the law, the Government contended that the Coercive Measures Act, on which the search was based, contained very detailed provisions on the conditions under which coercive measures were allowed as well as other protective provisions, including requirements of proportionality. Furthermore, the measure at issue had been preceded by thorough considerations, was well reasoned and documented and had been extensively reviewed by the domestic courts. Consequently, the Government argued that the relevant legislation was compatible with the rule of law, that it was accessible to the applicant and that it had foreseeable consequences. Also, the search had pursued legitimate aims, namely the economic well-being of the country and the prevention of crime.", "80. As to the necessity of the coercive measures used, the Government submitted that the instruments given to the Tax Agency by law, including the Coercive Measures Act, were essential in enabling it to investigate whether information supplied in tax returns was correct. In certain situations, it was necessary for the Agency to gain forced access to documents when the person or company being audited could not be expected to cooperate. The audit in which the coercive measures had been used had concerned Draupner and the target of the search had thus not been the applicant. Nevertheless, the domestic law and practice applied had allegedly afforded the applicant adequate and effective safeguards against abuse and arbitrariness. For instance, the Tax Agency ’ s decision to use the measures under the Coercive Measures Act was narrow and targeted only material belonging to Draupner. It was described in detail in the Agency ’ s submissions to the County Administrative Court and was based on reasonable suspicions. Furthermore, a representative of the applicant and other persons were present. In addition, Swedish law provided for the possibility of exemption of documents from a tax audit, and this issue had been examined numerous times by the courts at the request of Draupner, the audited company. According to the information available to the Government, the seized material had been outside the Tax Agency ’ s control and kept by the courts throughout the exemption proceedings, which had lasted from the enforcement of the coercive measures, in March 2008, until 2012.", "81. The Government further pointed out that Mr Jurik, the representative of the audited company, Draupner, was also an associate of the applicant. In their view, if a person is running a company and at the same time works as an associate of a law firm, it must be acceptable in certain situations that the person ’ s place of work is searched in connection with an audit of the person ’ s company.", "82. Finally, in regard to the applicant ’ s claim that its professional reputation had been impaired by the search of its offices, the Government submitted that no material had been seized there. Therefore, any publicity regarding the events could not have affected the applicant ’ s reputation in such a way that Article 8 came into play.", "B. The Court ’ s assessment", "1. Whether there was an interference", "83. The search of a lawyer ’ s office may be regarded as an interference with “private life”, “home” and “correspondence” under Article 8 § 1. As regards the notion of “home”, it covers not only a private individual ’ s home; the word “ domicile ” in the French version of Article 8 has a broader connotation than the word “home” and may extend, for example, to a professional person ’ s office. Consequently, “home” is to be construed as including also the registered office of a company run by a private individual, as well as a legal person ’ s registered office, branches and other business premises (see, for instance, Niemietz v. Germany, 16 December 1992, §§ 29-32, Series A no. 251 ‑ B, and Sallinen and Others v. Finland, no. 50882/99, § 70, 27 September 2005, with further references ).", "84. It is not in dispute between the parties that the search of the offices of the applicant law firm constituted an interference with its rights under Article 8. The Court, considering that it is of no consequence to the question of interference that the coercive measures were not directed against the applicant as such, finds that the search interfered with the applicant ’ s right to respect for its “home”. Furthermore, while no material was seized at the law firm, those conducting the search in the offices of Mr Jurik and Mr Möller examined the contents of cupboards, shelves, computers and a safe and must inevitably have come across documents that could properly be regarded as the applicant ’ s “correspondence” (cf. Niemietz v. Germany, cited above, § 32). The search thus interfered with the applicant ’ s rights under Article 8 also on that count.", "85. The parties disagree, however, on the question whether the seizure and copying, respectively, of the external hard disk drive and the USB memory stick constituted an interference with the applicant ’ s rights under Article 8. In this respect, the Court notes that the data media was not seized on the premises of the applicant law firm, but at the flat belonging to Draupner. The domestic courts – notably by judgments of the County Administrative Court and the Administrative Court of Appeal of 16 October 2008 and 14 September 2010, respectively – concluded that the flat served as the business premises of Draupner. Having regard to the principle of subsidiarity – that the domestic courts are better placed to examine and interpret facts – the Court can see no reason to deviate from the findings of on this point. The courts went on to state that, as the company was the subject of a tax audit, any material linked to its business and found on its premises should be considered as belonging to it and as eligible for examination. The Court considers that this was a justifiable presumption, which was further supported by the fact that Mr Jurik, who used the flat also as a pied-à-terre, was the manager of the company. The applicant has stated that it was unable to argue its ownership of the media as it was denied legal standing in the matter. Nevertheless, as was acknowledged by the applicant, in the proceedings concerning Draupner ’ s requests for exemption of documents, the ownership arguments were in fact put to the domestic courts, presented by Draupner ’ s representative Mr Lindstrand, a lawyer of the applicant law firm. In this connection, it should be noted that the courts also examined whether any documents or other material was covered by attorney-client privilege. There is, in the Court ’ s view, nothing to indicate that the domestic courts failed to take into account the claims and arguments presented or that their conclusions were arbitrary or otherwise unreasonable.", "86. In conclusion, the Court finds that the search of the offices of the applicant law firm interfered with its right to respect for its home and correspondence under Article 8, but that the search and seizures occurring at the flat belonging to Draupner did not constitute an interference with the applicant ’ s rights under that provision.", "2. Whether the interference was justified", "87. The Court must therefore determine whether this interference satisfied the requirements of the second paragraph of Article 8, in other words whether it was “in accordance with the law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve the aim or aims in question.", "(a) In accordance with the law", "88. The Court has established that a measure must have some basis in domestic law, with the term “law” being understood in its “substantive” sense, not its “formal” one. In a sphere covered by statutory law, the “law” is the enactment in force as the competent courts have interpreted it (see Société Colas Est and Others v. France, no. 37971/97, § 43, ECHR 2002 ‑ III). The Court has also held that the domestic law must be compatible with the rule of law and accessible to the person concerned and that the person affected must be able to foresee the consequences of the domestic law for him or her (see Kennedy v. the United Kingdom (no. 26839/05, § 151, 18 May 2010). Given that search and seizure represent a serious interference with rights protected under Article 8, they must be based on a law that is particularly precise (see Sallinen and Others v. Finland, cited above, § 90).", "89. The Court reiterates that the search of the offices of Mr Jurik and Mr Möller at the applicant law firm was made pursuant to the County Administrative Court ’ s judgment of 10 March 2008 (concerning SNS) and the interim decision of 14 March 2008 by the Tax Agency ’ s audit manager (concerning Draupner). The measure in question had a basis in the Coercive Measures Act, notably sections 7 and 8 and – as far as the interim decision was concerned – section 15. The authority of the audit manager under section 15 was limited to business premises, but not only to the business premises of the audited party. An interim decision could be taken to search business premises other than the audited party ’ s if there was a particular reason to assume that documents of significance to the audit could be found there and if there was a substantial risk that these documents would otherwise be withheld, corrupted or destroyed. The Court considers that the provisions establishing the circumstances under which a decision on search and seizure could be taken were sufficiently clear and detailed.", "90. The Coercive Measures Act did not exclude law offices from searches of the present kind. It did, however, contain provisions on exemption of documents, notably section 16, which referred to the rules of the Code of Judicial Procedure on information covered by professional secrecy, including attorney-client privilege. The protection of attorney-client privilege concerned everything entrusted to or found out by a lawyer in his or her professional capacity. Thus, the safeguard was comprehensive and worded in unequivocal terms (cf. the differently worded provisions examined in Sallinen and Others v. Finland, cited above, §§ 83-93, which were not considered to meet these requirements). Thus, in all its parts, the applicable law was accessible to the applicant, which was able to foresee its consequences.", "91. Moreover, the Court considers that the decision to search the applicant ’ s offices was thoroughly reasoned and the enforcement proceedings were properly documented. In this context and in the following assessment, the Court is of the view that, having regard to the link between the companies SNS and Draupner and the closeness in time in the initial proceedings, the County Administrative Court ’ s judgment and the interim decision of the Tax Agency ’ s audit manager must be read in conjunction with the Agency ’ s application to the County Administrative Court of 4 March 2008.", "92. In conclusion, the Court finds that the measure at issue satisfied the criteria to be considered as having been “in accordance with the law”.", "(b) Legitimate aim", "93. Noting that the search of the applicant ’ s offices was undertaken in the context of a tax audit of several companies, the Court considers that it served a legitimate aim, namely the economic well-being of the country.", "(c) Necessary in a democratic society", "94. It remains for the Court to determine whether the measure at issue was “necessary in a democratic society”, in other words, whether the relationship between the aim sought to be achieved and the means employed can be considered proportionate.", "95. In comparable cases that have dealt with search warrants in criminal proceedings, the Court has examined whether domestic law and practice afforded adequate and effective safeguards against any abuse and arbitrariness. Elements taken into consideration are, in particular, whether the search was based on a warrant issued by a judge and based on reasonable suspicion; whether the scope of the warrant was reasonably limited; and – where the search of a lawyer ’ s office was concerned – whether the search was carried out in the presence of an independent observer in order to ensure that materials subject to professional secrecy were not removed (see Robathin v. Austria, no. 30457/06, § 44, 3 July 2012, with further references). In this context, it should be noted that, where a lawyer is involved, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6 of the Convention ( Niemitz v. Germany, cited above, § 37, and Iliya Stefanov v. Bulgaria, no. 65755/01, § 38, 22 May 2008).", "96. In the present case, the Court notes that the Tax Agency ’ s application to the County Administrative Court was quite detailed, stating that it had proved impossible to determine the ownership and declared business costs of a number of named, interrelated companies through communication with the persons involved in those companies and that it was therefore necessary to gain access to documents that could shed light on these issues. The application mentioned the known connections of Mr Jurik to the various companies, including the involvement in the three Swedish companies subjected to the original audit and his management of the parent company Draupner, and mentioned why, in the Agency ’ s view, there was a need to search the two premises specified. The connection between SNS and Draupner was mentioned already at this early stage of the proceedings. In these circumstances, the Court finds that the judge examining the application had ample information to satisfy himself that there were reasonable grounds to conduct the search and that material of significance might be found at the applicant law firm. Neither the fact that nothing was found and seized at the law firm nor the fact that the tax audits of SNS and Draupner led to no levying of additional taxes can be taken as proof that, as has been asserted by the applicant, the Tax Agency had no “reasonable suspicion”; rather, the reasonableness of the suspicion must be assessed in the light of the information available at the time of the court ’ s judgment approving the search.", "97. While the granting of the Agency ’ s application was obtained in an ex parte procedure, the Court considers that there may be good reason not to give forewarning of a proposed search; the scrutiny of the judge of the original application in the present case still provided an important safeguard against abuse (cf. Tamosius v. the United Kingdom (dec.), no. 62002/00, ECHR 2002 ‑ VIII). In the circumstances of the case, the interim decision taken by the audit manager under section 15 of the Coercive Measures Act to effectively extend the search to cover also Draupner should, in the Court ’ s view, be seen as a continuation of the original judgment issued by the County Administrative Court and was, moreover, immediately referred to the court for confirmation. Furthermore, given that the decision was taken during the actual enforcement, at a time when it had become apparent to persons involved what transactions and documents were to be examined, the interim and immediate nature of the decision must be considered to have been justified.", "98. It should further be noted that the proceedings at the applicant law firm was carried out in the presence of a legal representative appointed by the applicant, who monitored the searches conducted in the offices of Mr Jurik and Mr Möller and was able to object to the seizure of any material deemed to be subject to professional secrecy. While nothing was seized at the law firm, the representative did request that the external hard disk drive and the USB memory stick, appropriated at the flat belonging to Draupner, be exempted from the audit on that ground.", "99. Moreover, although the Court has concluded above (paragraphs 85 -8 6 ) that the search and seizure at the flat as such did not interfere with the applicant ’ s rights under Article 8, it acknowledges that the data media mentioned could have contained information coming under attorney-client privilege pertaining to the applicant and its clients. However, this issue has been extensively examined in the domestic proceedings concerning exemption of documents, in which a lawyer of the applicant law firm specified the documents for which exemption was requested and put forward arguments to that end. While some documents were exempted because they were considered to be of a private nature, none of the material seized or copied by the Tax Agency was found to contain information subject to professional secrecy. It should be mentioned that, apparently, the challenged material was kept by the courts throughout the exemption proceedings and was thus during that time not available for examination by the Tax Agency.", "100. Finally, the Court cannot find that the search at issue generally was conducted in an excessive manner or otherwise inflicted unnecessary harm on the applicant. In support of its claim that the search had damaged its reputation and led to its changing names, the applicant has submitted copies of a few news items posted on two Swedish legal research websites. These articles, which summarily describe the facts and outcomes of some of the domestic judgments and decisions in the case, do not show that the reputation of the law firm was damaged to any noteworthy degree.", "101. Having regard to the above, the Court concludes that the search of the applicant ’ s offices was not disproportionate to the legitimate aims pursued. The interference can accordingly be regarded as having been “necessary in a democratic society”.", "102. It follows that there has been no violation of Article 8 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION", "103. The applicant claimed that the seizure of the USB memory stick and the external hard disk drive at issue in the case had violated its right to property under Article 1 of Protocol No. 1. Also the applicant ’ s professional reputation, to be considered property, had been adversely affected by the decision to search its premises. Article 1 of Protocol No. 1 reads as follows:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. The parties ’ submissions", "1. The applicant", "104. The applicant asserted that the domestic courts had failed to recognise that the data media in question belonged to it as they had not considered that the media had been seized at a private dwelling rather than business premises. Furthermore, it had been denied legal standing to argue this point. The applicant also claimed that its professional reputation had been harmed by the publicity caused by the search of its offices and that this had been one of the considerations which had led the law firm to change its name in 2009.", "2. The respondent Government", "105. The Government disagreed with the applicant ’ s ownership contention, arguing that the domestic courts had considered the data media to belong to Draupner and not the applicant. In regard to the applicant ’ s professional reputation, the Government disputed that the change of name of the law firm had been necessary due to the coercive measures taken or the limited publicity this might have entailed. In this respect, they pointed out that no material had been seized on the applicant ’ s premises and that no taxation decisions involving the applicant or any of its clients had been taken as a result of the coercive measures.", "B. The Court ’ s assessment", "106. Having already taken into consideration, in the context of Article 8 of the Convention, the applicant ’ s claims that the domestic courts had failed to recognise its ownership of the data media in question and that its professional reputation had been harmed due to the coercive measures employed, the Court finds that no separate issue arises under Article 1 of Protocol No. 1.", "IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "107. The applicant complained that it had been denied locus standi in two sets of proceedings, regarding the coercive measures as such (allowing the Tax Agency to search its premises) and the subsequent request for exemption of documents. It further asserted that the latter proceedings had failed to meet the requirements of independence and impartiality, since a civil servant of the Tax Agency had been permitted to sit as judge in the Administrative Court of Appeal. It relied on Article 6 § 1 of the Convention which provides the following:", "“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ... ”", "A. The parties ’ submissions", "1. The applicant", "108. The applicant asserted that the matters raised came within the ambit of Article 6 § 1, as their complaints did not concern a tax dispute but related to its property and premises and the principle of attorney-client privilege.", "2. The respondent Government", "109. Referring to the Court ’ s case-law concerning tax disputes, the Government left it to the Court to determine whether Article 6 § 1 under its civil head was applicable to the proceedings concerning coercive measures and exemption of documents.", "B. The Court ’ s assessment", "110. Noting that the various decisions and judgments in the domestic proceedings at issue were taken in the context of tax audits carried out by the Tax Agency with a view to determine the liability to tax of several companies, the Court reiterates that it has consistently held that, generally, tax disputes fall outside the scope of “civil rights and obligations” under Article 6 of the Convention, despite the pecuniary effects which they necessarily produce for the taxpayer (see, among other authorities, Ferrazzini v. Italy [GC], no. 44759/98, § 29, ECHR 2001-VII).", "111. In several judgments concerning Sweden, Article 6 has been deemed applicable to tax disputes in which tax surcharges have been imposed because that imposition involved a determination of a “criminal charge” within the meaning of Article 6 (see, for instance, Janosevic v. Sweden, no. 34619/97, §§ 64-71, ECHR 2002-VII, and Carlberg v. Sweden, no. 9631/04, § 41, 27 January 2009 ). In the present case, however, the Tax Agency ’ s application of 4 March 2008 did not mention an intention of imposing tax surcharges, and the tax audits did not, in fact, lead to any taxation decisions being taken.", "112. Notwithstanding the use of coercive measures in the present case, the Court cannot find therefore that there was a determination of a “criminal charge”. Nor does it find that the proceedings at issue contained any element which would give reason to deviate from the above conclusion that a tax dispute fall outside the scope of “civil rights and obligations”.", "113. Accordingly, Article 6 § 1 of the Convention does not apply in the present case. The present complaint must therefore be declared inadmissible.", "V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION", "114. The applicant complained also under Article 13 of the Convention about the fact that it had been denied locus standi in the proceedings concerning the authorisation to search its premises and the request for exemption of documents. Article 13 reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The parties ’ submissions", "1. The applicant", "115. The applicant submitted that it had not had an effective remedy to present arguments in the two proceedings at issue. It argued that the premises of a law firm must be protected from intrusions from the State in order for the principle of attorney-client privilege to retain any practical meaning. The use of coercive measures against a law firm should therefore be prohibited unless the firm itself was on reasonable and tangible grounds suspected of criminal activities, which was not the case in the present context. The principle of attorney-client privilege was also at stake in the proceedings concerning exemption of documents, as the data media seized and copied by the Tax Agency allegedly contained information which had been entrusted to the applicant in its capacity of a law firm in the course of its legal practice. Moreover, the applicant insisted that it was the owner of the data media, an assertion it had not been able to argue as a party before the courts.", "2. The respondent Government", "116. The Government asserted that the applicant did not have an arguable claim of a violation of its rights under Article 8 and that Article 13 was therefore inapplicable to both aspects of the present complaint. In any event, they argued that the applicant had in fact had an effective remedy regarding the search of its offices, as it could have appealed against the County Administrative Court ’ s judgment of 26 March 2008 affirming the Tax Agency ’ s interim decision of 14 March 2008. While the determination upon appeal would have occurred after the search, certain cases and circumstances called for expediency and immediate enforcement in order for the purpose of a search to be fulfilled. The possibility of a court examination after the enforcement provided, in the Government ’ s view, sufficient procedural safeguards. If a search was found to have lacked a legal basis, the individual could be awarded damages in court proceedings. In regard to the issue of exemption of documents, the Government further pointed out that Draupner, the object of the seizure, had had a remedy to request exemption and had in fact used it.", "B. The Court ’ s assessment", "117. Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they are secured in the domestic legal order. The effect of this Article is thus to require a remedy in domestic law in respect of grievances which can be regarded as “arguable” in terms of the Convention, allowing the competent national authority both to deal with an “arguable complaint” and to grant appropriate relief. The scope of the obligations under Article 13 varies depending on the nature of the applicant ’ s complaint, and the State is afforded some discretion as to the manner in which it conforms to its obligations under this provision. However, the domestic remedy must be “effective” in practice as well as in law (see, for instance, Keegan v. the United Kingdom, no. 28867/03, § 40, ECHR 2006 ‑ X, and De Souza Ribeiro v. France [GC], no. 22689/07, § 78, ECHR 2012).", "118. The Court has concluded above (see paragraphs 101-102 ) that, while there has been an interference with the applicant ’ s rights under Article 8, there has been no violation of that provision because the interference can be regarded as having been “necessary in a democratic society”. Nevertheless, having regard, in particular, to the significant interference represented by the Tax Agency ’ s forced access to and search of the offices of the applicant law firm and the potential encroachment such an action may entail on professional secrecy, the Court considers that the applicant had an “arguable complaint” under Article 8 of the Convention and that, consequently, it was entitled to an effective remedy within the meaning of Article 13.", "119. The applicant has complained about its lack of legal standing, and thus access to an effective remedy, in two sets of proceedings: first, those in which the Tax Agency was authorised to search the law firm ’ s offices and, second, those in which the requests for exemption of documents were determined.", "120. In regard to the latter proceedings, it should first be reiterated that the data media for which exemption was sought had not been seized on the premises of the applicant law firm and did not, according to the domestic courts, belong to it. The Court has therefore concluded that the seizure did not interfere with the applicant ’ s rights under Article 8 (see paragraphs 85-86 above). Nevertheless, the Court has also considered that there was a possibility that the data media contained information for which attorney-client privilege applied (paragraph 99 ).", "121. It is true that, through the County Administrative Court ’ s decision of 26 March 2008, upheld on appeal, the applicant was denied legal standing to request exemption of documents. However, Draupner ’ s subsequent exemption request was examined on the merits by the courts. While the data media in question was found to contain no privileged information, the courts conducted extensive and thorough examinations before reaching that conclusion. More importantly, Draupner was represented in the exemption proceedings by Mr Lindstrand, a lawyer of the applicant law firm, who presented arguments relating to the alleged attorney-client privilege pertaining to the information contained on the data media, and the courts had regard to those submissions. Thus, whereas the applicant was not formally a party to the proceedings relating to Draupner, the substance of its claims was examined in those proceedings and it was able to present all its arguments on the issue. In these circumstances, the applicant must be considered to have had an effective remedy in regard to the question of exemption of documents.", "122. Turning to the earlier proceedings in which the Tax Agency was given permission to search the offices of the applicant law firm, the Court notes that there were two determinations of this issue. First, the County Administrative Court, by a judgment of 10 March 2008, granted the Tax Agency ’ s application in relation to SNS. The applicant, who had not been a party to the proceedings before that court, appealed to the Administrative Court of Appeal but was denied legal standing as the appellate court found that the applicant was not sufficiently affected by the appealed judgment to give it a right to appeal (see paragraph 16 above). Second, the Tax Agency, on 14 March 2008, took an interim decision to use coercive measures in regard to Draupner which, after referral, was confirmed by the County Administrative Court on 26 March 2008. The applicant did not appeal against the latter judgment.", "123. The applicant ’ s submissions in the case have concentrated on the Tax Agency ’ s interim decision and the subsequent proceedings. The Government have contended, in this connection, that the applicant had an effective remedy, arguing that that it could have appealed against the County Administrative Court ’ s judgment of 26 March 2008. The Court disagrees with the Government ’ s contention. As has been concluded above (see paragraph 97 ), the Tax Agency ’ s interim decision must be seen as a continuation of the original judgment of the County Administrative Court of 10 March 2008, which allowed the applicant ’ s offices to be searched and led to the enforcement during which the interim decision extended the scope of that search. The applicant did appeal against the original judgment, but the appeal was dismissed because the applicant was not considered to be sufficiently affected. Against this background, an appeal by the applicant against the County Administrative Court ’ s judgment of 26 March 2008, concerning an issue identical in substance to that examined in the original judgment, would obviously have been to no avail.", "124. The Court reiterates that, while the coercive measures employed in the case were not directed against the applicant law firm, the search in question was carried out on its premises where contents of cupboards, shelves, computers and a safe were examined. In the Court ’ s view, the search therefore clearly affected the applicant, which had a justified interest in obtaining a review of whether the search complied with its rights under the Convention, in particular Article 8. Due to the special nature of a search of the present kind, notably the importance of not giving forewarning to persons concerned by the measure, a review that takes place after the enforcement may still be considered effective (see Iliya Stefanov v. Bulgaria, cited above, § 59). In the present case, however, the applicant was denied legal standing and thus did not have access to any remedy for the examination of its objections to the search. In these circumstances, the applicant did not have an “effective remedy before a national authority”.", "125. It follows that there has been a violation of Article 13 of the Convention in conjunction with Article 8.", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "126. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "127. The applicant did not submit a claim for pecuniary or non-pecuniary damage. Accordingly, the Court considers that there is no call to award it any sum on that account.", "B. Costs and expenses", "128. The applicant claimed 100,000 Swedish kronor (approximately 10,600 euros (EUR)) for the costs and expenses incurred before the domestic courts and the Court.", "129. The Government submitted that they had no objection to the amount claimed if the Court were to find a violation of the Convention and the costs and expenses were considered to have been actually and necessarily incurred in order to avoid, or obtain redress for, the violation found.", "130. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, as well as the fact that no violation has been found in regard to the complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 and that the complaint under Article 6 of the Convention has been declared inadmissible, the Court considers it reasonable to award the sum of EUR 5,000 covering costs and expenses under all heads.", "C. Default interest", "131. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "THE CIRCUMSTANCES OF THE CASE", "1. The alleged interception of communications", "5. The applicants alleged that in the 1990s the Ministry of Defence operated an Electronic Test Facility (“ETF”) at Capenhurst, Cheshire, which was built to intercept 10,000 simultaneous telephone channels coming from Dublin to London and on to the continent. Between 1990 and 1997 the applicants claimed that the ETF intercepted all public telecommunications, including telephone, facsimile and e-mail communications, carried on microwave radio between the two British Telecom ’ s radio stations (at Clwyd and Chester), a link which also carried much of Ireland ’ s telecommunications traffic. During this period the applicant organisations were in regular telephone contact with each other and also providing, inter alia, legal advice to those who sought their assistance. They alleged that many of their communications would have passed between the British Telecom radio stations referred to above and would thus have been intercepted by the ETF.", "2. Complaint to the Interception of Communications Tribunal (“ICT”)", "6. On 9 September 1999, having seen a television report on the alleged activities of the ETF, the applicant organisations requested the Interception of Communications Tribunal (“the ICT”: see paragraphs 2 8 -3 0 below) to investigate the lawfulness of any warrants which had been issued in respect of the applicants ’ communications between England and Wales and Ireland. On 19 October 1999 an official of the ICT confirmed that an investigation would proceed and added:", "“ ... I am directed to advise you that the Tribunal has no way of knowing in advance of an investigation whether a warrant exists in any given case. The Tribunal investigates all complaints in accordance with section 7 of the [Interception of Communications Act 1985: ‘ the 1985 Act ’, see paragraphs 16 -33 below] establishing whether a relevant warrant or relevant certificate exists or had existed and, if so, whether there has been any contravention of sections 2 to 5. If ... the Tribunal concludes that there has been a contravention of sections 2 to 5, the Tribunal may take steps under sections 7(4), (5) and (6). In any case where there is found to have been no contravention, the Tribunal is not empowered to disclose whether or not authorised interception has taken place. In such instances, complainants are advised only that there has been no contravention of sections 2 to 5 in relation to a relevant warrant or a relevant certificate.”", "7. By a letter dated 16 December 1999 the ICT confirmed that it had thoroughly investigated the matter and was satisfied that there had been no contravention of sections 2 to 5 of the 1985 Act in relation to the relevant warrant or certificate.", "3. Complaint to the Director of Public Prosecutions (“DPP”)", "8. By a letter dated 9 September the applicants complained to the DPP of an unlawful interception, requesting the prosecution of those responsible. The DPP passed the matter to the Metropolitan Police for investigation. By a letter dated 7 October 1999 the police explained that no investigation could be completed until the ICT had investigated and that a police investigation might then follow if it could be shown that an unwarranted interception had taken place or if any of the other conditions set out in section 1(2)-(4) of the 1985 Act had not been met. The applicants pointed out, in their letter of 12 October 1999, that the vague, albeit statutory, response of the ICT would mean that they would not know whether a warrant had been issued or, if it had, whether it had been complied with. They would not, therefore, be in a position to make submissions to the police after the ICT investigation as to whether or not a criminal investigation was warranted. The applicants asked if, and if so how, the police could establish for themselves whether or not a warrant had been issued, so as to decide whether an investigation was required, and how the police would investigate, assuming there had been no warrant.", "9. The DPP responded on 19 October 1999 that the police had to await the ICT decision, and the police responded on 9 November 1999 that the applicants ’ concerns were receiving the fullest attention, but that they were unable to enter into discussion on matters of internal procedure and inter-departmental investigation.", "10. On 21 December 1999 the applicants wrote to the police pointing out that, having received the decision of the ICT, they still did not know whether or not there had been a warrant or whether there had been unlawful interception. The response, dated 17 January 2000, assured the applicants that police officers were making enquires with the relevant agencies with a view to establishing whether there had been a breach of section 1 of the 1985 Act and identifying the appropriate investigative authority. The police informed the applicants by a letter dated 31 March 2000 that their enquiries continued, and, by a letter dated 13 April 2000, that these enquiries had not revealed an offence contrary to section 1 of the 1985 Act.", "4. Complaint to the Investigatory Powers Tribunal (“IPT”)", "11. On 15 December 2000 the former statutory regime for the interception of communications was replaced by the Regulation of Investigatory Powers Act 2000 (see paragraphs 3 4 -3 9 below) and a new tribunal, the IPT, was created.", "12. On 13 August 2001 the applicants began proceedings in the IPT against the security and intelligence agencies of the United Kingdom, complaining of interferences with their rights to privacy for their telephone and other communications from 2 October 2000 onwards ( British-Irish Rights Watch and others v. The Security Service and others, IPT/01/62/CH). The IPT, sitting as its President and Vice-President (a Court of Appeal and a High Court judge), had security clearance and was able to proceed in the light not just of open evidence filed by the defendant services but also confidential evidence, which could not be made public for reasons of national security.", "13. On 9 December 2004 the IPT made a number of preliminary rulings on points of law. Although the applicants had initially formulated a number of claims, by the time of the ruling these had been narrowed down to a single complaint about the lawfulness of the “filtering process”, whereby communications between the United Kingdom and an external source, captured under a warrant pursuant to section 8(4) of the 2000 Act (which had replaced section 3(2) of the 1985 Act: see paragraphs 3 4-39 below), were sorted and accessed pursuant to secret selection criteria. The question was, therefore, whether “the process of filtering intercepted telephone calls made from the UK to overseas telephones ... breaches Article 8 § 2 [of the Convention] because it is not ‘ in accordance with the law ’ ”.", "14. The IPT found that the difference between the warrant schemes for interception of internal and external communications was justifiable, because it was more necessary for additional care to be taken with regard to interference with privacy by a Government in relation to domestic telecommunications, given the substantial potential control it exercised in this field; and also because its knowledge of, and control over, external communications was likely to be much less extensive.", "15. As to whether the law was sufficiently accessible and foreseeable for the purposes of Article 8 § 2, the IPT observed:", "“ The selection criteria in relation to accessing a large quantity of as yet unexamined material obtained pursuant to a s8(4) warrant (as indeed in relation to material obtained in relation to a s8(1) warrant) are those set out in s5(3). The Complainants ’ Counsel complains that there is no ‘ publicly stated material indicating that a relevant person is satisfied that the [accessing] of a particular individual ’ s telephone call is proportionate ’. But the Respondents submit that there is indeed such publicly stated material, namely the provisions of s6(l) of the Human Rights Act which requires a public authority to act compatibly with Convention rights, and thus, it is submitted, imposes a duty to act proportionately in applying to the material the s5(3) criteria.", "To that duty there is added the existence of seven safeguards listed by the Respondents ’ Counsel, namely (1) the criminal prohibition on unlawful interception (2) the involvement of the Secretary of State (3) the guiding role of the Joint Intelligence Committee ( ‘ JIC ’ ) (4) the Code of Practice (5) the oversight by the Interception of Communication Commissioner (whose powers are set out in Part IV of the Act) (6) the availability of proceedings before this Tribunal and (7) the oversight by the Intelligence and Security Committee, an all-party body of nine Parliamentarians created by the Intelligence Services Act 1994 ...", "It is plain that, although in fact the existence of all these safeguards is publicly known, it is not part of the requirements for accessibility or foreseeability that the precise details of those safeguards should be published. The Complainants ’ Counsel has pointed out that it appears from the Respondents ’ evidence that there are in existence additional operating procedures, as would be expected given the requirements that there be the extra safeguards required by s16 of the Act, and the obligation of the Secretary of State to ensure their existence under s15(1)(b). It is not suggested by the Complainants that the nature of those operating procedures be disclosed, but that their existence, i.e. something along the lines of what is in the Respondents ’ evidence, should itself be disclosed in the Code of Practice.", "We are unpersuaded by this. First, such a statement in the Code of Practice, namely as to the existence of such procedures, would in fact take the matter no further than it already stands by virtue of the words of the statute. But in any event, the existence of such procedures is only one of the substantial number of safeguards which are known to exist. Accessibility and foreseeability are satisfied by the knowledge of the criteria and the knowledge of the existence of those multiple safeguards.", "... [F] oreseeability is only expected to a degree that is reasonable in the circumstances, and the circumstances here are those of national security ... In this case the legislation is adequate and the guidelines are clear. Foreseeability does not require that a person who telephones abroad knows that his conversation is going to be intercepted because of the existence of a valid s. 8(4) warrant. ...", "The provisions, in this case the right to intercept and access material covered by a s. 8(4) warrant, and the criteria by reference to which it is exercised, are in our judgment sufficiently accessible and foreseeable to be in accordance with law. The parameters in which the discretion to conduct interception is carried on, by reference to s. 5(3) and subject to the safeguards referred to, are plain from the face of the statute. In this difficult and perilous area of national security, taking into account both the necessary narrow approach to Article 8(2) and the fact that the burden is placed upon the Respondent, we are satisfied that the balance is properly struck. ”", "B. Relevant domestic law and practice", "1. The Interception of Communications Act 1985", "16. During the period at issue in this application the relevant legislation was sections 1-10 of the Interception of Communications Act 1985 (“the 1985 Act”), which came into force on 10 April 1986 and was repealed by the Regulation of Investigatory Powers Act 2000 (“the 2000 Act”).", "17. Pursuant to section 1 of the 1985 Act, a person who intentionally intercepted a communication in the course of its transmission by post or by means of a public telecommunications system was guilty of an offence. A number of exceptions were made, the relevant one being a communication intercepted pursuant to a warrant issued by the Secretary of State under section 2 of the 1985 Act and in accordance with a certificate issued under section 3(2)(b) of the 1985 Act.", "(a) Warrants for interception", "(i) The three grounds for issuing a warrant", "18. The Secretary of State ’ s power to issue a warrant under section 2 of the 1985 Act could be exercised only if he considered the warrant necessary:", "“(a) in the interests of national security;", "(b) for the purpose of preventing or detecting serious crime; or", "(c) for the purpose of safeguarding the economic well-being of the United Kingdom .”", "19. The term “serious crime” was defined by section 10(3) of the Act as follows:", "“For the purposes of [the 1985 Act], conduct which constitutes or, if it took place in the United Kingdom, would constitute one or more offences shall be regarded as a serious crime if, and only if –", "(a) it involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose; or", "(b) the offence, or one of the offences, is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more.”", "20. The scope of the term “national security” was clarified by the Commissioner appointed under the 1985 Act. In his 1986 report he stated ( § 27) that he had adopted the following definition: activities “which threaten the safety or well-being of the State, and which are intended to undermine or overthrow Parliamentary democracy by political, industrial or violent means”.", "21. In determining whether a warrant was necessary for one of the three reasons set out in section 2(2) of the 1985 Act, the Secretary of State was under a duty to take into account whether the information which it was considered necessary to acquire could reasonably be acquired by other means (section 2(3)). In addition, warrants to safeguard the economic well-being of the United Kingdom could not be issued unless the information to be acquired related to the acts or intentions of persons outside the British Islands (section 2(4)). A warrant required the person to whom it was addressed to intercept, in the course of their transmission by post or by means of a public telecommunications system, such communications as were described in the warrant.", "(ii) The two types of warrant", "22. Two types of warrant were permitted by section 3 of the 1985 Act. The first, a “section 3(1) warrant”, was a warrant that required the interception of:", "“(a) such communications as are sent to or from one or more addresses specified in the warrant, being an address or addresses likely to be used for the transmission of communications to or from– (i) one particular person specified or described in the warrant; or (ii) one particular set of premises so specified or described; and", "(b) such other communications (if any) as it is necessary to intercept in order to intercept communications falling within paragraph (a) above.”", "By section 10(1) of the 1985 Act, the word “person” was defined to include any organisation or combination of persons and the word “address” was defined to mean any postal or telecommunications address.", "23. The second type of warrant, a “section 3(2) warrant”, was one that required the interception, in the course of transmission by means of a public telecommunications system, of:", "“ (i) such external communications as are described in the warrant; and", "(ii) such other communications (if any) as it is necessary to intercept in order to intercept such external communications as are so described ... ”.", "24. When he issued a section 3(2) warrant, the Secretary of State was required to issue also a certificate containing a description of the intercepted material the examination of which he considered necessary in the interests of national security, to prevent or detect serious crime or to safeguard the State ’ s economic well-being (section 3(2)(b)). A section 3(2) warrant could not specify an address in the British Islands for the purpose of including communications sent to or from that address in the certified material unless-", "“3(3) (a) the Secretary of State considers that the examination of communications sent to or from that address is necessary for the purpose of preventing or detecting acts of terrorism; and", "(b) communications sent to or from that address are included in the certified material only in so far as they are sent within such a period, not exceeding three months, as is specified in the certificate.”", "25. Section 3(2) warrants could be issued only under the hand of the Secretary of State or a permitted official of high rank with the written authorisation of the Secretary of State. If issued under the hand of the Secretary of State, the warrant was valid for two months; if by another official, it was valid for two days. Only the Secretary of State could renew a warrant. If the Secretary of State considered that a warrant was no longer necessary in the interests of national security, to prevent or detect serious crime or to safeguard the State ’ s economic well-being, he was under a duty to cancel it (section 4).", "26. The annual report of the Commissioner for 1986 explained the difference between warrants issued under section 3(1) and under section 3(2):", "“There are a number of differences ... But the essential differences may be summarised as follows:", "(i) Section 3(2) warrants apply only to external telecommunications;", "(ii) whereas section 3(1) warrants only apply to communications to or from one particular person ... or one particular set of premises, Section 3(2) warrants are not so confined; but", "(iii) at the time of issuing a Section 3(2) warrant the Secretary of State is obliged to issue a certificate describing the material which it is desired to intercept; and which he regards as necessary to examine for any of the purposes set out in Section 2(2).", "So the authority to intercept granted by the Secretary of State under Section 3(2) is limited not so much by reference to the target, as it is under section 3(1), but by reference to the material. It follows that in relation to Section 3(2) warrants, I have had to consider first, whether the warrant applies to external communications only, and, secondly, whether the certified material satisfies the Section 2(2) criteria. ...", "There is a further important limitation on Section 3(2) warrants. I have said that the authority granted by the Secretary of State is limited by reference to the material specified in the certificate, rather than the targets named in the warrants. This distinction is further underlined by Section 3(3) which provides that material specified shall not include the address in the British Islands for the purpose of including communications sent to or from that address, except in the case of counter-terrorism. So if, for example in a case of subversion the Security Service wishes to intercept external communications to or from a resident of the British Islands, he could not do so under a Section 3(2) warrant by asking for communications sent to or from his address to be included in the certified material. But it would be possible for the Security Service to get indirectly, through a legitimate examination of certified material, what it may not get directly. In such cases it has become the practice to apply for a separate warrant under Section 3(1) known as an overlapping warrant, in addition to the warrant under Section 3(2). There is nothing in the [1985 Act] which requires this to be done. But it is obviously a sound practice, and wholly consistent with the legislative intention underlying Section 3(3). Accordingly I would recommend that where it is desired to intercept communications to or from an individual residing in the British Islands, as a separate target, then in all cases other than counter-terrorism there should be a separate warrant under Section 3(1), even though the communications may already be covered by a warrant under Section 3(3). The point is not without practical importance. For the definition of “relevant warrant” and “relevant certificate” in Section 7(9) of the Act makes it clear that, while the Tribunal has power to investigate warrants issued under section 3(1) and certificates under section 3(2) where an address is specified in the certificate, it has no such power to investigate Section 3(2) warrants, where an address is not so certified.”", "(iii) Use and retention of information", "27. Section 6 of the 1985 Act was entitled “Safeguards” and read as follows:", "“(1) Where the Secretary of State issues a warrant he shall, unless such arrangements have already been made, make such arrangements as he considers necessary for the purpose of securing-", "(a) that the requirements of subsections (2) and (3) below are satisfied in relation to the intercepted material; and", "(b) where a certificate is issued in relation to the warrant, that so much of the intercepted material as is not certified by the certificate is not read, looked at or listened to by any person.", "(2) The requirements of this subsection are satisfied in relation to any intercepted material if each of the following, namely-", "(a) the extent to which the material is disclosed;", "(b) the number of persons to whom any of the material is disclosed;", "(c) the extent to which the material is copied; and", "(d) the number of copies made of any of the material;", "is limited to the minimum that is necessary as mentioned in section 2 (2) above.", "(3) The requirements of this subsection are satisfied in relation to any intercepted material if each copy made of any of that material is destroyed as soon as its retention is no longer necessary as mentioned in section 2 (2) above.”", "(b) The Interception of Communications Tribunal (“ICT”)", "28. Section 7 of the 1985 Act provided for a Tribunal to investigate complaints from any person who believed that communications sent by or to him had been intercepted. Its jurisdiction, so far as material, was limited to investigating whether there was or had been a “relevant warrant” or a “relevant certificate” and, where there was or had been, whether there had been any contravention of sections 2-5 of the 1985 Act in relation to that warrant or certificate. Section 7(9) read, in so far as relevant, as follows:", "“For the purposes of this section –", "(a) a warrant is a relevant warrant in relation to an applicant if –", "(i) the applicant is specified or described in the warrant; or", "(ii) an address used for the transmission of communications to or from a set of premises in the British Islands where the applicant resides or works is so specified;", "(b) a certificate is a relevant certificate in relation to an applicant if and to the extent that an address used as mentioned in paragraph (a)(ii) above is specified in the certificate for the purpose of including communications sent to or from that address in the certified material.”", "29. The ICT applied the principles applicable by a court on an application for judicial review. If it found there had been a contravention of the provisions of the Act, it was to give notice of that finding to the applicant, make a report to the Prime Minister and to the Commissioner appointed under the Act and, where it thought fit, make an order quashing the relevant warrant, directing the destruction of the material intercepted and/or directing the Secretary of State to pay compensation. In other cases, the ICT was to give notice to the applicant stating that there had been no contravention of sections 2-5 of the Act.", "30. The ICT consisted of five members, each of whom was required to be a qualified lawyer of not less than ten years standing. They held office for a five-year period and could be re-appointed. The decisions of the ICT were not subject to appeal.", "(c) The Commissioner", "31. Section 8 provided that a Commissioner be appointed by the Prime Minister. He or she was required to be a person who held, or who had held, high judicial office. The Commissioner ’ s functions included the following:", "– to keep under review the carrying out by the Secretary of State of the functions conferred on him by sections 2-5 of the 1985 Act;", "– to give to the ICT all such assistance as it might require for the purpose of enabling it to carry out its functions;", "– to keep under review the adequacy of the arrangements made under section 6 for safeguarding intercepted material and destroying it where its retention was no longer necessary;", "– to report to the Prime Minister if there appeared to have been a contravention of sections 2-5 which had not been reported by the ICT or if the arrangements under section 6 were inadequate;", "– to make an annual report to the Prime Minister on the exercise of the Commissioner ’ s functions. This report had to be laid before the Houses of Parliament. The Prime Minister had the power to exclude any matter from the report if publication would have been prejudicial to national security, to the prevention or detection of serious crime or to the well-being of the United Kingdom. The report had to state if any matter had been so excluded.", "32. In his first report as Commissioner, in 1992, Sir Thomas Bingham MR, as he then was, explained his own role as part of the safeguards inherent in the 1985 Act as follows:", "“The third major safeguard is provided by the Commissioner himself. While there is nothing to prevent consultation of the Commissioner before a warrant is issued, it is not the practice to consult him in advance and such consultation on a routine basis would not be practicable. So the Commissioner ’ s view is largely retrospective, to check that warrants have not been issued in contravention of the Act and that appropriate procedures were followed. To that end, I have visited all the warrant issuing departments and agencies named in this report, in most cases more than once, and discussed at some length the background to the warrant applications. I have also discussed the procedure for seeking warrants with officials at various levels in all the initiating bodies and presenting departments. I have inspected a significant number of warrants, some chosen by me at random, some put before me because it was felt that I should see them. Although I have described ... a number of instances in which mistakes were made or mishaps occurred, I have seen no case in which the statutory restrictions were deliberately evaded or corners knowingly cut. A salutary practice has grown up by which the Commissioner ’ s attention is specifically drawn to any case in which an error or contravention of the Act has occurred: I accordingly believe that there has been no such case during 1992 of which I am unaware.”", "Similar conclusions about the authorities ’ compliance with the law were drawn by all the Commissioners in their reports during the 1990s.", "33. In each of the annual reports made under the 1985 Act the Commissioner stated that in his view the arrangements made under section 6 of the 1985 were adequate and complied with, without revealing what the arrangements were. In the 1989 Report the Commissioner noted at § 9 that there had been technological advances in the telecommunications field which had “necessitated the making of further arrangements by the Secretary of State for the safeguarding of material under section 6 of the [1985 Act]”. The Commissioner stated that he had reviewed the adequacy of the new arrangements. For the year 1990, the Commissioner recorded that, as a result of a new practice of the police disclosing some material to the Security Service, a further change in the section 6 arrangements had been required. The Commissioner said in the 1990 Report that he was “ satisfied with the adequacy of the new arrangements” (1990 Report at § 18). In the 1991 Report, the Commissioner stated that there had been some minor changes to the section 6 arrangements and confirmed that he was satisfied with the arrangements as modified ( § 29 of the 1991 Report ). In the 1993 Report, the Commissioner said at § 11:", "“ Some of the written statements of section 6 safeguards which I inspected required to be updated to take account of changes in the public telecommunications market since they had been drafted and approved. Other statements could, as it seemed to me, be improved by more explicit rules governing the circumstances and manner in which, and the extent to which, intercept material could be copied. It also seemed to me that it would be advantageous, where this was not already done, to remind all involved m handling intercept material on a regular basis of the safeguards to which they were subject, securing written acknowledgements that the safeguards had been read and understood. These suggestions appeared to be readily accepted by the bodies concerned. They did not in my view indicate any failure to comply with section 6 of the Act. ”", "In his first year as Commissioner, Lord Nolan reported the following on this issue of section 6 safeguards (1994 Report, § 6) :", "“ Like my predecessors, I have on each of my visits considered and discussed the arrangements made by the Secretary of State under section 6 for the purpose of limiting the dissemination and retention of intercepted material to what is necessary within the meaning of section 2. Each agency has its own set of such arrangements, and there are understandable variations between them. For example, the practical considerations involved in deciding what is necessary in the interests of national security, or the economic well-being of the United Kingdom (the areas with which the Security Service and the Secret Intelligence Service are almost exclusively concerned) are somewhat different from those involved in the prevention and detection of serious criminal offences (with which the police forces and HM Customs & Excise are almost exclusively concerned). I am satisfied that all of the agendas are operating within the existing approved safeguards under the terms of the arrangements as they stand ... ”", "2. The Regulation of Investigatory Powers Act 2000", "34. The 2000 Act came into force on 15 December 2000. The explanatory memorandum described the main purpose of the Act as being to ensure that the relevant investigatory powers were used in accordance with human rights. As to the first, interceptions of communications, the 2000 Act repealed, inter alia, sections 1-10 of the 1985 Act and provides for a new regime for the interception of communications.", "35. The 2000 Act is designed to cover the purposes for which the relevant investigatory powers may be used, which authorities can use the powers, who should authorise each use of the power, the use that can be made of the material gained, judicial oversight and a means of redress for the individual.", "36. A new Investigatory Powers Tribunal (“IPT”) assumed the responsibilities of the former ICT, of the Security Services Tribunal and of the Intelligence Services Tribunal. The Interception of Communications Commissioner continues to review the actions of the Secretary of State as regards warrants and certificates and to review the adequacy of the arrangements made for the execution of those warrants. He is also, as before, to assist the Tribunal. In addition, the Secretary of State is to consult about and to publish codes of practice relating to the exercise and performance of duties in relation to, inter alia, interceptions of communications.", "37. Section 2(2) of the 200 0 Act defines interception as follows:", "“For the purposes of this Act, but subject to the following provisions of this section, a person intercepts a communication in the course of its transmission by means of a telecommunications system if, and only if, he –", "(a) so modifies or interferes with the system, or its operation,", "(b) so monitors transmissions made by means of the system, or", "(c) so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system,", "as to make some of all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication.”", "38. Section 5(2) of the 2000 Act provides that the Secretary of State shall not issue an interception warrant unless he believes that the warrant is necessary, inter alia, in the interests of national security, for the purpose of preventing or detecting serious crime or for the purpose of safeguarding the economic well-being of the United Kingdom and that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.", "39. In addition to the general safeguards specified in section 15 of the Act, section 16 provides additional safeguards in the case of certificated warrants (namely warrants for interception of external communications supported by a certificate). In particular, section 16(1) provides that intercepted material is to be read, looked at or listened to by the persons to whom it becomes available by virtue of the warrant to the extent only that it has been certified as material the examination of which is necessary for one of the above purposes and falls within subsection (2). Intercepted material falls within subsection (2) so far only as it is selected to be read, looked at or listened to otherwise than according to a factor which is referable to an individual who is known to be for the time being in the British Isles and has as its purpose, or one of its purposes, the identification of material in communications sent by that person, or intended for him.", "40. In its Ruling of 9 December 2004 (see paragraphs 13-15 above), the IPT set out the following extracts from the Interception of Communications Code of Practice issued pursuant to s. 71 of the 2000 Act (“the Code of Practice”). Subparagraph 4(2) of the Code of Practice deals with the application for a s. 8(1) warrant as follows :", "“ An application for a warrant is made to the Secretary of State. .. Each application, a copy of which must be retained by the applicant, should contain the following information :", "• Background to the operation in question.", "• Person or premises to which the application relates (and how the person or premises feature in the operation).", "• Description of the communications to be intercepted, details of communications service provider(s) and an assessment of the feasibility of the interception operation where this is relevant.", "• Description of the conduct to be authorised as considered necessary in order to carry out the interception, where appropriate.", "• An explanation of why the interception is considered to be necessary under the provisions of section 5(3).", "• A consideration of why the conduct is to be authorised by the warrant is proportionate to what is sought to be achieved by that conduct.", "• A consideration of any unusual degree of collateral intrusion and why that intrusion is justified in the circumstances. In particular, where the communications in question might affect religious, medical or journalistic confidentiality or legal privilege, this must be specified in the application.", "• Where an application is urgent, supporting justification should be provided.", "• An assurance that all material intercepted will be handled in accordance with the safeguards required by section 15 of the Act.", "The IPT continued:", "“Applications for a s. 8(4) warrant are addressed in subparagraph 5 .2 of the Code of Practice :", "‘ An application for a warrant is made to the Secretary of State ... each application, a copy of which must be retained by the applicant, should contain the following information :", "• Background to the operation in question [identical to the first bullet point in 4.2].", "• Description of the communications ... [this is materially identical to the third bullet point in 4.1].", "• Description of the conduct to be authorised, which must be restricted to the interception of external communications, or to conduct necessary in order to intercept those external communications, where appropriate [compare the wording of the fourth bullet in 4 .2].", "• The certificate that will regulate examination of intercepted material.", "• An explanation of why the interception is considered to be necessary for one or more of the section 5(3) purposes [identical to the fifth bullet point in 4 .2].", "• A consideration of why the conduct should be authorised by the warrant is proportionate. .. [identical to the sixth bullet point in 4 .2].", "• A consideration of any unusual degree of collateral intrusion. .. [identical to the seventh bullet point in 4 .2].", "• Where an application is urgent. .. [identical to the eighth bullet point in 4 .2].", "• An assurance that intercepted material will be read, looked at or listened to only so far as it is certified, and it meets the conditions of sections 16(2) -16(6) of the Act.", "• An assurance that all material intercepted will be handled in accordance with the safeguards required by sections 15 and 16 of the Act [these last two bullets of course are the equivalent to the last bullet point in 4 .2].", "... By subparagraph 4(8), the s. 8(l) warrant instrument should include ‘ the name or description of the interception subject or of the set of premises in relation to which the interception is to take place ’ and by subparagraph 4(9) there is reference to the schedules required by s. 8(2) of [the 2000 Act]. The equivalent provision in relation to the format of the s. 8(4) warrant in subparagraph 5(9) does not of course identify a particular interception subject or premises, but requires inclusion in the warrant of a ‘ description of the communications to be intercepted ’ .”" ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "41. The applicants complained about the interception of their communications, contrary to Article 8 of the Convention :", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The parties ’ submissions", "1. The applicants", "42. The applicants complained that, between 1990 and 1997, telephone, facsimile, e-mail and data communications between them were intercepted by the Capenhurst facility, including legally privileged and confidential material.", "43. Through the statements of Mr Duncan Campbell, a telecommunications expert, they alleged that the process applying to external warrants under section 3(2) of the 1985 Act embodied five stages.", "First, a warrant would be issued, specifying an external communications link or links to be physically intercepted. Such warrants covered very broad classes of communications, for example, “all commercial submarine cables having one terminal in the UK and carrying external commercial communications to Europe ”. All communications falling within the specified category would be physically intercepted.", "Secondly, the Secretary of State would issue a certificate, describing the categories of information which could be extracted from the total volume of communications intercepted under a particular warrant. Certificates were formulated in general terms, and related only to intelligence tasks and priorities; they did not identify specific targets or addresses. They did not need to be more specific than the broad classes of information specified in the 1985 Act, for example, “national security”, “preventing or detecting serious crime” or “safeguarding the economic well-being of the United Kingdom ”. The combination of a certificate and a warrant formed a “certified warrant”.", "The third stage in the process was filtering. An automated sorting system or search engine, operating under human control, selected communications containing specific search terms or combinations thereof. The search terms would relate to one or more of the certificates issued for the relevant intercepted communications link. Search terms could also be described as “keyword lists”, “technical databases” or “The Dictionary”. Search terms and filtering criteria were not specified in certificates, but were selected and administered by State officials without reference to judicial officials or ministers.", "Fourth, a system of rules was in place to promote the “minimisation” of the interference with privacy, namely how to review communications intelligence reports and remove names or material identifying citizens or entities whose details might incidentally have been included in raw material which had otherwise been lawfully intercepted and processed. Where the inclusion of such details in the final report was not proportionate or necessary for the lawful purpose of the warranted interception, it would be removed.", "The fifth and final stage in the process was “dissemination”. Information obtained by an interference with the privacy of communications could be disseminated only where the recipients ’ purpose(s) in receiving the information was proportionate and necessary in the circumstances. Controls on the dissemination formed a necessary part of Article 8 safeguards.", "44. The applicants contended that since the section 3(2) procedure permitted the interception of all communications falling within the large category set out in each warrant, the only protection afforded to those whose communications were intercepted was that the Secretary of State, under section 6(1) of the Act, had to “make such arrangements as he considers necessary for the purpose of securing that ... so much of the intercepted material as is not certified by the certificate is not read, looked at or listened to by any person” unless the requirements of section 6(2) were met. However, the precise nature of these “arrangements” were not, at the relevant time, made known to the public, nor was there any procedure available to permit an individual to satisfy him or herself that the “arrangements” had been followed. The Tribunal did not have jurisdiction to examine such compliance, and although the Commissioner was authorised under section 8 to review the adequacy of the “arrangements” in general, he had no power to review whether they had been met in an individual case.", "45. It was plain that the alleged interception of communications constituted an interference with the applicants ’ rights under Article 8 § 1. Any such interception, to comply with Article 8 § 2, had to be “in accordance with the law”, and thus have a basis in domestic law that was adequately accessible and formulated with sufficient precision as to be foreseeable. They contended that the United Kingdom legislation breached the requirements of foreseeability. They submitted that it would not compromise national security to describe the arrangements in place for filtering and disseminating intercepted material, and that detailed information about similar systems had been published by a number of other democratic countries, such as the United States of America, Australia, New Zealand, Canada and Germany. The deficiencies in the English system were highlighted by the Court ’ s decision in Weber and Saravia v. Germany (dec.), no. 54934/00, 29 June 2006, which noted that the German legislation set out on its face detailed provisions regulating, inter alia, the way in which individual communications were to be selected from the pool of material derived from “strategic interception”; disclosure of selected material amongst the various agencies of the German State and the use that each could properly make of the material; and the retention or destruction of the material. The authorities ’ discretion was further regulated and constrained by the public rulings of the Federal Constitutional Court on the compatibility of the provisions with the Constitution. In contrast, in the United Kingdom at the relevant time no provision was made on the face of the statute for any part of the processes following the initial interception, other than the duty on the Secretary of State to make unspecified “arrangements”. The arrangements themselves were unpublished. There was no legal material in the public domain indicating how the authorities ’ powers to select, disclose, use or retain particular communications were regulated. The authorities ’ conduct was not “in accordance with the law” because it was unsupported by any predictable legal basis satisfying the accessibility principle.", "46. In addition, the applicants denied that the interferences pursued a legitimate aim or were proportionate to any such aim, since the 1985 Act permitted interception of large classes of communications for any purpose, and it was only subsequently that this material was sifted to determine whether it fell within the scope of a section 3(2) warrant.", "2. The Government", "47. For security reasons, the Government adopted a general policy of neither confirming nor denying allegations made in respect of surveillance activities. For the purposes of this application, however, they were content for the Court to proceed on the hypothetical basis that the applicants could rightly claim that communications sent to or from their offices were intercepted at the Capenhurst ETF during the relevant period. Indeed, they submitted that, in principle, any person who sent or received any form of telecommunication outside the British Islands during the period in question could have had such a communication physically intercepted under a section 3(2) warrant. However, the Government emphatically denied that any interception was being conducted without the necessary warrants and it was their position that, if interception of the applicants ’ communications did occur, it would have been lawfully sanctioned by an appropriate warrant under section 3(2) of the 1985 Act.", "48. The Government annexed to their first set of Observations, dated 28 November 2002, a statement by Mr Stephen Boys Smith, a senior Home Office official, in which it was claimed:", "“ ... Disclosure of the arrangements would reveal important information about the methods of interception used. It is for this reason that the Government is unable to disclose the full detail of the section 6 arrangements for section 3(2) warrants that were in place during the relevant period. The methods to which the relevant documents relate for the relevant period remain a central part of the methods which continue to be used. Therefore, disclosure of the arrangements, the Government assesses and I believe, would be contrary to the interests of national security. It would enable individuals to adapt their conduct so as to minimise the effectiveness of any interception methods which it might be thought necessary to apply to them.", "Further, the manuals and instructions setting out the section 6 safeguards and arrangements are in large part not in a form which would be illuminating or readily comprehensible to anyone who had not also undergone the training I have referred to above or had the benefit of detailed explanations. They are couched in technical language and refer to specific techniques and processes which cannot be understood simply from the face of the documents. They contain detailed instructions, precisely in order to ensure that the section 6 arrangements and section 3(2) requirements were fully understood by staff and were fully effective. Any explanations given by the Government of those techniques and processes would compound the problem, referred to above, of undermining the operational effectiveness of the system and techniques used under the authority of warrants.”", "The Government stressed, however, that the detailed arrangements were the subject of independent review by the successive Commissioners, who reported that they operated as robust safeguards for individuals ’ rights (see paragraphs 31-33 above).", "49. The Government annexed to their Further Observations, dated 23 May 2003, a second statement by Mr Boys Smith, in response to Mr Campbell ’ s statement (see paragraph 4 8 above), which provided more detail, to the extent that was possible without undermining national security, about the “arrangements” made by the Secretary of State under section 6 of the Act. The Government submitted that the Court should proceed on the basis that, in the absence of evidence to the contrary, in the democratic society of the United Kingdom, the relevant ministers, officials and Commissioners properly discharged their statutory duties to ensure that safeguards were in place to comply with all the requirements of section 6. Moreover Mr Boys Smith ’ s statement showed that during the relevant period there was a range of safeguards in place to ensure that the process of selection of material for examination (the stage referred to by the applicants as “filtering”) could be carried out only strictly in accordance with the statutory framework and the terms of the warrant and the certificate (that is, could be carried out only when necessary in the interests of national security, for the purpose of preventing or detecting serious crime or for the purpose of safeguarding the economic well-being of the United Kingdom), and could not be abused or operated arbitrarily.", "50. According to Mr Boys Smith, all persons involved in the selection process would have had their attention specifically drawn to the safeguards and limits set out in the primary legislation, which were rigorously applied. Secondly, training was provided to all these persons to emphasise the importance of strict adherence to the operating procedures and safeguards in place. Thirdly, throughout the relevant period operating procedures were in place to ensure that it was not possible for any single individual to select and examine material on an arbitrary and uncontrolled basis. Where, as part of his intelligence gathering, an official wished to intercept and select relevant information, he could not effect the interception himself. He would have to take the request for interception and selection to personnel in a different branch of the department, who would then separately activate the technical processes necessary for the interception and selection to be made. The requesting official would have to set out, in his request, his justification for the selection. Moreover, a record of the request was kept, so that it was possible for others (senior management and the Commissioner) to check back on the official ’ s request, to ensure that it was properly justified. Conversely, it was not possible for the personnel in the branch of the department implementing the technical interception processes to receive the downloaded product of any interception and selection process implemented by them. Therefore, they also could not conduct unauthorised interception and gain access to material themselves. Fourth, there was day-to-day practical supervision of those who conducted the selection processes under section 3(2) warrants (“the requesting officials”) by managers working physically in the same room, who could and would where necessary ask the requesting officials at any time to explain and justify what they were doing. The managers also performed quality control functions in relation to the intelligence reports generated by the requesting officials, and routinely reviewed all intelligence reports incorporating intercepted material that were drawn up by requesting officials for dissemination. Fifth, throughout the relevant period, as was explained to all personnel involved in the selection process, the independent Commissioner had an unrestricted right to review the operation of the selection process and to examine material obtained pursuant to it. From the relevant records, it was possible to check on the interception initiated by officials and, if necessary, to call for an explanation. Each of the Commissioners during the relevant period (Lords Lloyd, Bingham and Nolan) exercised his right to review the operation of the selection processes, and each Commissioner declared himself satisfied that the selection processes were being conducted in a manner that was fully consistent with the provisions of the 1985 Act. By this combination of measures there were effective safeguards in place against any risk of individual, combined or institutional misbehaviour or action contrary to the terms of the legislation or warrant. Finally, once the Intelligence Services Act 1994 had come into force on 15 December 1994, it was possible for an aggrieved individual to complain to the Tribunal.", "51. As regards the processes described by the applicants as “minimisation” and “dissemination”, safeguards in place during the relevant period ensured that access to and retention of the raw intercept material and any intelligence reports based on such material were kept to the absolute minimum practicable, having regard to the public interest served by the interception system. Relevant information in the material selected and examined was disseminated in the form of intelligence reports, usually compiled by the requesting officials. As part of the safeguards under section 6 of the 1985 Act, there were throughout the relevant period internal regulations governing the manner in which intelligence reports were produced, directed at all individuals engaged in producing intelligence reports based on material selected from communications intercepted under the section 3(2) warrant regime. The regulations stipulated, among other things, that no information should be reported unless it clearly contributed to a stated intelligence requirement conforming to one of the purposes set out in section 2(2) of the 1985 Act. The regulations also dealt specifically with the circumstances in which it was appropriate to name specific individuals or organisations in the intelligence reports. During the relevant period there was in place a comprehensive security regime for handling all types of classified material. Dissemination was restricted to those with a genuine “need to know”, and was further limited to persons who had been security vetted and briefed on how to handle it, with a view to ensuring continued confidentiality.", "52. The Government refuted the suggestion that, to comply with Article 8 § 2, the safeguards put in place in respect of the intercepted material had themselves to comply with the “in accordance with the law” criteria. In any event, the functions of the Commissioner and the Tribunal were embodied in statutory provisions that were sufficiently certain and accessible, and in assessing whether the “foreseeability” requirements of Article 8 § 2 had been met, it was legitimate to take into account the existence of general safeguards against abuse such as these ( the Government relied on Association for European Integration and Human Rights and Ekimzhiev v. Bulgaria, no. 62540/00, § § 7 7 -94, 28 June 2007 and Christie v. the United Kingdom, no. 21482/93, Commission decision of 27 June 1994 ). Moreover, the 1985 Act provided that interception was criminal except where the Secretary of State had issued a warrant and sections 2 and 3(2) set out in very clear terms that, during the relevant period, any person in the United Kingdom who sent or received any form of telecommunication outside Britain could in principle have had it intercepted pursuant to such a warrant. The provisions of primary legislation were, therefore, sufficient to provide reasonable notice to individuals to the degree required in this particular context, and provided adequate protection against arbitrary interference. Article 8 § 2 did not require that the nature of the “arrangements” made by the Secretary of State under section 6 of the 1985 Act be set out in legislation (see Malone v. the United Kingdom, judgment of 2 August 1984, Series A no. 82, § 68), and for security reasons it had not been possible to reveal such information to the public, but the arrangements had been subject to review by the Commissioners, each of whom had found them to be satisfactory (see paragraph 33 above).", "53. The Government submitted that the section 3(2) warrant regime was proportionate and “necessary in a democratic society”. Democratic States faced a growing threat from terrorism, and as communications networks became more wide-ranging and sophisticated, terrorist organisations had acquired ever greater scope to operate and co-operate on a trans-national level. It would be a gross dereliction of the Government ’ s duty to safeguard national security and the lives and well-being of its population if it failed to take steps to gather intelligence that might allow preventative action to be taken or if it compromised the operational effectiveness of the surveillance methods available to it. Within the United Kingdom the Government had extensive powers and resources to investigate individuals and organisations that might threaten the interests of national security or perpetrate serious crimes, and it was therefore feasible for the domestic interception regime to require individual addresses to be identified before interception could take place. Outside the jurisdiction, however, the ability of the Government to discover the identity and location of individuals and organisations which might represent a threat to national security was drastically reduced and a broader approach was needed. Maintaining operational effectiveness required not simply that the fact of interception be kept as secret as appropriate; it was also necessary to maintain a degree of secrecy as regards the methods by which such interception might be effected, to prevent the loss of important sources of information.", "54. The United Kingdom was not the only signatory to the Convention to make use of a surveillance regime involving the interception of volumes of communications data and the subsequent operation of a process of selection to obtain material for further consideration by government agencies. It was difficult to compare the law and practice of other democratic States (such as the German system of strategic monitoring examined by the Court in the Weber and Saravia case cited above), since each country had in place a different set of safeguards. For example, the United Kingdom did not permit intercepted material to be used in court proceedings, whereas many other States did allow this, and there were few, if any, direct equivalents to the independent Commissioner system created by the 1985 Act. Moreover, it was possible that the operational reach of the United Kingdom ’ s system had had to be more extensive, given the high level of terrorist threat directed at the United Kingdom during the period in question.", "A. Admissibility", "55. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Whether there was an interference", "56. Telephone, facsimile and e-mail communications are covered by the notions of “ private life” and “ correspondence ” within the meaning of Article 8 (see Weber and Saravia v. Germany (dec.), no. 54934/00, § 77, 29 June 2006, and the cases cited therein). The Court recalls its findings in previous cases to the effect that the mere existence of legislation which allows a system for the secret monitoring of communications entails a threat of surveillance for all those to whom the legislation may be applied. This threat necessarily strikes at freedom of communication between users of the telecommunications services and thereby amounts in itself to an interference with the exercise of the applicants ’ rights under Article 8, irrespective of any measures actually taken against them (see Weber and Saravia, cited above, § 78).", "57. The Court notes that the Government are prepared to proceed, for the purposes of the present application, on the basis that the applicants can claim to be victims of an interference with their communications sent to or from their offices in the United Kingdom and Ireland. In any event, under section 3(2) the 1985 Act, the authorities were authorised to capture communications contained within the scope of a warrant issued by the Secretary of State and to listen to and examine communications falling within the terms of a certificate, also issued by the Secretary of State (see paragraphs 23-24 above). Under section 6 of the 1985 Act arrangements had to be made regulating the disclosure, copying and storage of intercepted material (see paragraph 27 above). The Court considers that the existence of these powers, particularly those permitting the examination, use and storage of intercepted communications constituted an interference with the Article 8 rights of the applicants, since they were persons to whom these powers might have been applied (see Weber and Saravia, cited above, §§ 78-79).", "2. Whether the interference was justified", "58. Such an interference is justified by the terms of paragraph 2 of Article 8 only if it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims (see Weber and Saravia, cited above, § 80).", "3. Whether the interference was “in accordance with the law”", "a. General principles", "59. The expression “in accordance with the law” under Article 8 § 2 requires, first, that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be compatible with the rule of law and accessible to the person concerned, who must, moreover, be able to foresee its consequences for him (see, among other authorities, Kruslin v. France, judgment of 24 April 1990, Series A no. 176-A, § 27; Huvig v. France, judgment of 24 April 1990, Series A no. 176-B, § 26; Lambert v. France, judgment of 24 August 1998, Reports of Judgments and Decisions 1998-V, § 23; Perry v. the United Kingdom, no. 63737/00, § 45, ECHR 2003-IX; Dumitru Popescu v. Romania (No. 2), no. 71525/01, § 61, 26 April 2007 ).", "60. It is not in dispute that the interference in question had a legal basis in sections 1-10 of the 1985 Act (see paragraphs 16- 27 above). The applicants, however, contended that this law was not sufficiently detailed and precise to meet the “foreseeability” requirement of Article 8(2), given in particular that the nature of the “ arrangements” made under section 6(1)(b) was not accessible to the public. The Government responded, relying on paragraph 68 of Malone (cited above), that although the scope of the executive ’ s discretion to carry out surveillance had to be indicated in legislation, “the detailed procedures and conditions to be observed do not necessarily have to be incorporated in rules of substantive law”.", "61. The Court observes, first, that the above passage from Malone was itself a reference to Silver and Others, also cited above, § § 88-89. There the Court accepted that administrative Orders and Instructions, which set out the detail of the scheme for screening prisoners ’ letters but did not have the force of law, could be taken into account in assessing whether the criterion of foreseeability was satisfied in the application of the relevant primary and secondary legislation, but only to “the admittedly limited extent to which those concerned were made sufficiently aware of their contents”. It was only on this basis – that the content of the Orders and Instructions were made known to the prisoners – that the Court was able to reject the applicants ’ contention that the conditions and procedures governing interferences with correspondence, and in particular the directives set out in the Orders and Instructions, should be contained in the substantive law itself.", "62. More recently, in its admissibility decision in Weber and Saravia, cited above, §§ 93-95, the Court summarised its case-law on the requirement of legal “ foreseeability ” in this field as follows (and see also Association for European Integration and Human Rights and Ekimzhiev, cited above, §§ 75-77) :", "“93. .... foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly (see, inter alia, Leander [ v. Sweden, judgment of 26 August 1987, Series A no. 116], p. 23, § 51). However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident (see, inter alia, Malone, cited above, p. 32, § 67; Huvig, cited above, pp. 54-55, § 29; and Rotaru [ v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V] ). It is therefore essential to have clear, detailed rules on interception of telephone conversations, especially as the technology available for use is continually becoming more sophisticated (see Kopp v. Switzerland, judgment of 25 March 1998, Reports 1998-II, pp. 542-43, § 72, and Valenzuela Contreras v. Spain, judgment of 30 July 1998, Reports 1998-V, pp. 1924-25, § 46). The domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see Malone, ibid.; Kopp, cited above, p. 541, § 64; Huvig, cited above, pp. 54-55, § 29; and Valenzuela Contreras, ibid.).", "94. Moreover, since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see, among other authorities, Malone, cited above, pp. 32-33, § 68; Leander, cited above, p. 23, § 51; and Huvig, cited above, pp. 54-55, § 29).", "95. In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in statute law in order to avoid abuses of power: the nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed (see, inter alia, Huvig, cited above, p. 56, § 34; Amann, cited above, § 76; Valenzuela Contreras, cited above, pp. 1924-25, § 46; and Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003).”", "63. It is true that the above requirements were first developed by the Court in connection with measures of surveillance targeted at specific individuals or addresses (the equivalent, within the United Kingdom, of the section 3(1) regime). However, the Weber and Saravia case was itself concerned with generalised “strategic monitoring”, rather than the monitoring of individuals ( cited above, § 18). The Court does not consider that there is any ground to apply different principles concerning the accessibility and clarity of the rules governing the interception of individual communications, on the one hand, and more general programmes of surveillance, on the other. The Court ’ s approach to the foreseeability requirement in this field has, therefore, evolved since the Commission considered the United Kingdom ’ s surveillance scheme in its above-cited decision in Christie v. the United Kingdom.", "b. Application of the general principles to the present case", "64. The Court recalls that section 3(2) of the 1985 Act allowed the executive an extremely broad discretion in respect of the interception of communications passing between the United Kingdom and an external receiver, namely to intercept “such external communications as are described in the warrant”. There was no limit to the type of external communications which could be included in a section 3(2) warrant. According to the applicants, warrants covered very broad classes of communications, for example, “all commercial submarine cables having one terminal in the UK and carrying external commercial communications to Europe ”, and all communications falling within the specified category would be physically intercepted (see paragraph 43 above). In their observations to the Court, the Government accepted that, in principle, any person who sent or received any form of telecommunication outside the British Islands during the period in question could have had such a communication intercepted under a section 3(2) warrant (see paragraph 47 above). The legal discretion granted to the executive for the physical capture of external communications was, therefore, virtually unfettered.", "65. Moreover, the 1985 Act also conferred a wide discretion on the State authorities as regards which communications, out of the total volume of those physically captured, were listened to or read. At the time of issuing a section 3(2) interception warrant, the Secretary of State was required to issue a certificate containing a description of the intercepted material which he considered should be examined. Again, according to the applicants, certificates were formulated in general terms and related only to intelligence tasks and priorities, such as, for example, “national security”, “preventing or detecting serious crime” or “safeguarding the economic well-being of the United Kingdom ” (see paragraph 43 above). On the face of the 1985 Act, only external communications emanating from a particular address in the United Kingdom could not be included in a certificate for examination unless the Secretary of State considered it necessary for the prevention or detection of acts of terrorism (see paragraphs 23-24 above). Otherwise, the legislation provided that material could be contained in a certificate, and thus listened to or read, if the Secretary of State considered this was required in the interests of national security, the prevention of serious crime or the protection of the United Kingdom ’ s economy.", "66. Under section 6 of the 1985 Act, the Secretary of State, when issuing a warrant for the interception of external communications, was called upon to “make such arrangements as he consider[ed] necessary” to ensure that material not covered by the certificate was not examined and that material that was certified as requiring examination was disclosed and reproduced only to the extent necessary. The applicants contend that material was selected for examination by an electronic search engine, and that search terms, falling within the broad categories covered by the certificates, were selected and operated by officials (see paragraph 43 above). According to the Government (see paragraphs 48-51 above), there were at the relevant time internal regulations, manuals and instructions applying to the processes of selection for examination, dissemination and storage of intercepted material, which provided a safeguard against abuse of power. The Court observes, however, that details of these “arrangements” made under section 6 were not contained in legislation or otherwise made available to the public.", "67. The fact that the Commissioner in his annual reports concluded that the Secretary of State ’ s “arrangements” had been complied with (see paragraphs 32-33 above), while an important safeguard against abuse of power, did not contribute towards the accessibility and clarity of the scheme, since he was not able to reveal what the “arrangements” were. In this connection the Court recalls its above case-law to the effect that the procedures to be followed for examining, using and storing intercepted material, inter alia, should be set out in a form which is open to public scrutiny and knowledge.", "68. The Court notes the Government ’ s concern that the publication of information regarding the arrangements made by the Secretary of State for the examination, use, storage, communication and destruction of intercepted material during the period in question might have damaged the efficacy of the intelligence-gathering system or given rise to a security risk. However, it observes that the German authorities considered it safe to include in the G10 Act, as examined in Weber and Saravia (cited above), express provisions about the treatment of material derived from strategic interception as applied to non-German telephone connections. In particular, the G10 Act stated that the Federal Intelligence Service was authorised to carry out monitoring of communications only with the aid of search terms which served, and were suitable for, the investigation of the dangers described in the monitoring order and which search terms had to be listed in the monitoring order (op. cit., § 32). Moreover, the rules on storing and destroying data obtained through strategic monitoring were set out in detail in section 3(6) and (7) and section 7(4) of the amended G10 Act (see Weber and Saravia, cited above, § 100). The authorities storing the data had to verify every six months whether those data were still necessary to achieve the purposes for which they had been obtained by or transmitted to them. If that was not the case, they had to be destroyed and deleted from the files or, at the very least, access to them had to be blocked; the destruction had to be recorded in minutes and, in the cases envisaged in section 3(6) and section 7(4), had to be supervised by a staff member qualified to hold judicial office. The G10 Act further set out detailed provisions governing the transmission, retention and use of data obtained through the interception of external communications (op. cit., §§ 33-50). In the United Kingdom, extensive extracts from the Code of Practice issued under section 71 of the 2000 Act are now in the public domain (see paragraph 40 above), which suggests that it is possible for a State to make public certain details about the operation of a scheme of external surveillance without compromising national security.", "69. In conclusion, the Court does not consider that the domestic law at the relevant time indicated with sufficient clarity, so as to provide adequate protection against abuse of power, the scope or manner of exercise of the very wide discretion conferred on the State to intercept and examine external communications. In particular, it did not, as required by the Court ’ s case-law, set out in a form accessible to the public any indication of the procedure to be followed for selecting for examination, sharing, storing and destroying intercepted material. The interference with the applicants ’ rights under Article 8 was not, therefore, “in accordance with the law”.", "70. It follows that there has been a violation of Article 8 in this case.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "71. The applicants also complained under Article 13, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "They submitted that Article 13 required the provision of a domestic remedy allowing the competent national authority to deal with the substance of the Convention complaint and to grant relief. The 1985 Act, however, provided no remedy for an interference where there had been a breach of the section 6 “arrangements” in a particular case.", "A. Admissibility", "72. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "73. However, in the light of its above finding that the system for interception of external communications under the 1985 Act was not formulated with sufficient clarity to give the individual adequate protection against arbitrary interference, the Court does not consider that it is necessary to examine separately the complaint under Article 13.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "74. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "75. The applicant submitted that the application related to allegations of unlawful interception of communications over a period of approximately seven years (1990-1997), and claimed EUR 3,000 each, making a total of EUR 9,000 in respect of non-pecuniary damage.", "76. The Government referred to a number of other cases involving covert surveillance where the Court held that the finding of a violation was sufficient just satisfaction ( Khan v. the United Kingdom, no. 35394/97, ECHR 2000-V; Armstrong v. the United Kingdom, no. 48521/99, 16 July 2002; Taylor-Sabori v. the United Kingdom, no. 47114/99, 22 October 2002; Hewitson v. the United Kingdom, no. 50015/99, 29 May 2003; Chalkley v. the United Kingdom, no. 63831/00, 12 June 2003 ) and submitted that no financial compensation for non-pecuniary damage would be necessary in the present case.", "77. In the circumstances of this case, the Court considers that the finding of violation constitutes sufficient just satisfaction for any non-pecuniary damage caused to the applicants.", "B. Costs and expenses", "78. The applicant also claimed GBP 7, 596, excluding value added tax (“VAT”) for the costs and expenses incurred before the Court.", "79. The Government noted that counsel had acted throughout on a pro bono basis, and submitted that the GBP 180 hourly rate charged by Liberty was excessive. They proposed that GBP 120 per hour would be more reasonable, giving a total of GBP 5, 064.", "80. The Court awards EUR 7,500 plus any VAT that may be chargeable.", "C. Default interest", "81. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Background facts", "5. On 23 December 1990, the applicant was arrested for drunkenness and taken to Hammersmith Police Station. He was held overnight in a cell shared by another detainee, Patrick Quinn. The next day, Mr Quinn was found dead with severe injuries. The applicant was charged with his murder. The applicant alleged that the police had framed him for the murder in order to cover up their own wrongdoing. In September 1991, the applicant was found guilty of the murder of Mr Quinn and was sentenced to life imprisonment. In February 1993, his conviction was overturned on appeal. At a first retrial, one of the police officers, a key prosecution witness, failed to appear. He was subsequently declared mentally unstable and was withdrawn from the proceedings. Following a second retrial, the applicant was convicted in 1994 of manslaughter and sentenced to nine years'imprisonment. The case was controversial in the United Kingdom on account of missing and conflicting police evidence which led some – including a number of Members of Parliament – to question the safety of the applicant's conviction.", "6. In 1996, the applicant was released from prison. Following his release, he became active in campaigning against miscarriages of justice generally. He subsequently started a removal business called Small Moves, undertaking small moves and van hire in London. Although his business did well at the beginning, he subsequently began to experience interference with his business telephone calls. He alleged that local calls to his telephone were not being put through to him and that he was receiving a number of time-wasting hoax calls. The applicant suspected that this was because his mail, telephone and email communications were being intercepted. As a result of the interference, the applicant's business began to suffer.", "7. The applicant believed that the interception of his communications was directly linked to his high profile case and his subsequent involvement in campaigning against miscarriages of justice. He alleged that the police and security services were continually and unlawfully renewing an interception warrant – originally authorised for the criminal proceedings against him – in order to intimidate him and undermine his business activities.", "B. Domestic proceedings", "8. On 10 July 2000 the applicant made subject access requests to MI5 and GCHQ (the United Kingdom's intelligence agencies responsible for national security) under the Data Protection Act 1998 (“DPA” – see paragraphs 21 to 22 below ). The object of the requests was to discover whether information about him was being processed by the agencies and to obtain access to the content of the information. Both requests were refused on the basis that the information requested was exempt from the disclosure requirements of the 1998 Act on the grounds of national security under certificates issued by the Secretary of State on 22 July 2000 (MI5) and 30 July 2000 (GCHQ).", "9. On 6 July 2001 the applicant lodged two complaints with the Investigatory Powers Tribunal (“IPT”). First, the applicant complained under sections 65(2)(b) and 65(4) of the Regulation of Investigatory Powers Act 2000 (“RIPA” – see paragraphs 25 to 80 below ) that his communications were being intercepted in “challengeable circumstances”, within the meaning of section 65(7) RIPA (i.e. under an interception warrant or in circumstances in which there ought to have been an interception warrant or where consideration ought to have been given to obtaining an interception warrant). Second, the applicant complained under sections 6(1) and 7(1) of the Human Rights Act 1998 ( “ HRA ” ) and section 65(2)(a) RIPA that there was an unlawful interference with his rights under Article 8 of the Convention.", "10. The applicant's Grounds of Claim and Complaint outlined the grounds for bringing the proceedings as follows:", "“ 4 (a) That the authorities'conduct was, and is, incompatible with his rights under Article 8 of the Convention and a violation of equivalent rights of his at common law. Such conduct is unlawful as a result of HRA s. 6(1) and forms the basis for a complaint under RIPA s. 65.", "(b) To the extent any such conduct purports to have the authority of a warrant issued or renewed under RIPA Part I or the corresponding predecessor provisions of the Interception of Communications Act 1985 (“IOCA”), the issue and renewal of that warrant, as well as the conduct itself, has at all times lacked the necessary justification, whether under the express provisions of RIPA Part I (or IOCA), Article 8(2) of the Convention, or the general law.", "(c) Moreover the authorities'conduct was and is unlawful because in breach of the requirements of the Data Protection Act 1998 (“DPA”). Conduct in breach of those requirements takes place in challengeable circumstances under RIPA s. 65(4) and (7) and is also incompatible with the Complainant's rights under Article 8 of the Convention.", "5. In addition, the Complainant relies in these proceedings on his right to a fair hearing under Article 6(1) of the Convention. In light of that right, the Complainant makes certain submissions about the way in which these proceedings ought to be conducted ... ”", "11. The applicant requested specific directions regarding the conduct of the proceedings in order to ensure the protection of his Convention rights under Article 6 § 1. In particular, he requested that his arguments and evidence be presented at an oral hearing; that all hearings be conducted in public; that there be mutual disclosure and inspection between the parties of all witness statements and evidence upon which parties sought to rely and exchange of skeleton arguments in relation to planned legal submissions; that evidence of each party be heard in the presence of the other party or their legal representatives, with oral evidence being open to cross-examination by the other party; that any opinion received from a Commissioner be disclosed to the parties, who would have the opportunity to make oral representations in light of it; that each party be able to apply for a derogation from any of the above in relation to a particular piece of evidence; and that, following its final determination, the IPT state its findings and give reasons for its conclusions on each relevant issue. He argued that to the extent that the IPT's rules of procedure (see paragraphs 84 to 87 below) prevented the directions sought, they were incompatible with his right to a fair hearing.", "12. The Grounds of Claim and Complaint referred to the applicant's belief that his communications were being intercepted and that any warrant in place was being continually renewed.", "13. Paragraph 13 of the Grounds of Claim and Complaint noted:", "“So far as the proceedings are brought in reliance on HRA s. 7(1)(a) or (b), the Complainant submits that:", "(a) The interception, and retention or other processing of intercept product, by any of the Respondents amounts to an interference with the Complainant's right to respect for private life and correspondence protected by Article 8(1) of the Convention;", "(b) The interception and processing have at no time been in accordance with the law as required by Article 8(2);", "(c) The interception and its purported authorisation (if any), and processing, have at no time been justified as necessary in a democratic society as required by Article 8(2).”", "14. Paragraph 14 of the Grounds of Claim and Complaint expanded on the applicant's submissions:", "“In particular, the Complainant submits that:", "(a) the proper inference from the circumstances described by the Complainant, amplified by the refusal of the [authorities] to deny the activities alleged, is that it is established on the balance of probabilities that the interception and processing took place. At minimum there is a reasonable likelihood that interception and processing ... has taken place and continues to take place ( Hewitt and Harman v. UK, 12175/86, EComHR Report 9.5.89, paras. 26-32).", "(b) The interception is not in accordance with the law so far as involving a breach of any requirement of the DPA (including the Data Protection Principles) ...", "(c) The complainant poses no risk to national security nor in his case could any other ground for authorising interception of his communications reasonably be considered to exist. It cannot be said that interception of his communications has at any material time been a necessary or proportionate interference ... with his rights under Article 8(1).”", "15. As to remedies, the Grounds of Claim and Complaint noted the following :", "“17. If the Tribunal finds that the Complainant succeeds on the claim or complaint, it is asked to make ... :", "(a) a final order prohibiting each Respondent from intercepting any communication by the Complainant ... or retaining or otherwise processing the product of any such interception, except on the grounds, and subject to the procedure, provided for by RIPA Part I;", "(b) an order ... quashing or cancelling any warrant or authorisation relating to any such interception;", "(c) an order requiring the destruction of any product of such interception ...", "(d) an award of compensation ... and/or damages ... for the loss and damage sustained by the Complainant in consequence of the matters complained of (including economic loss resulting from interference with his business communications ) .”", "16. On 23 January 2003, the IPT, presided over by Lord Justice Mummery, issued a joint Ruling on Preliminary Issues of Law in the applicant's case together with a case involving a complaint by British-Irish Rights Watch and others in which a similar challenge to the IPT's Rules was made (see paragraphs 84 to 87 below).", "17. On 9 December 2004, the IPT, again presided over by Lord Justice Mummery, issued a second ruling on preliminary issues of law in the applicant's case. In the introduction to its ruling, the IPT summarised the case before it as follows:", "“ 1. On 6 July 2001 the Complainant made (a) a complaint to the Tribunal under the Regulation of Investigatory Powers Act ... and (b) a claim under the Human Rights Act 1998 ... in respect of alleged ongoing interception by one or more of the respondent agencies (the Security Service, GCHQ and the Commissioner of Police for the Metropolis) over a period dating back to June 1996 ...", "2. The Complainant also alleges harassment, intrusive surveillance, interference with property, removal of documents, interference with a web site and e-mails and interception of privileged communications by the respondent agencies.", "3. The Complainant seeks a final order prohibiting the agencies from intercepting any communication by him in the course of its transmission by means of a telecommunications system or retaining or otherwise processing the product of any such interception except on the grounds and subject to the procedure provided by RIPA Part I.", "4. He also seeks an order requiring the destruction of any product of such interception held by each respondent, whether or not obtained pursuant to any warrant or authorisation; and an award of compensation under s 67(7) RIPA and/or damages sustained by the Complainant in consequence of the matters complained of. ”", "18. The ruling dealt with a number of matters relating to the extent of its jurisdiction in respect of the applicant's complaints relating to conduct prior to the entry into force of RIPA.", "19. Following its ruling of 9 December 2004, the IPT proceeded to examine the applicant's specific complaints in private.", "20. On 17 January 2005, the IPT notified the applicant that no determination had been made in his favour in respect of his complaints. This meant either that there had been no interception or that any interception which took place was lawful." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Applicable legislation", "1. Subject access requests under the Data Protection Act (“DPA”) 1998", "21. Section 7(1) DPA grants individuals the right to request details of any information about them held by persons or organisations which record, store, or process personal data.", "22. Under section 28 DPA, personal data is exempt from disclosure under section 7(1) if an exemption is required for the purpose of safeguarding national security.", "2. The Human Rights Act 1998", "23. The HRA incorporates the Convention into United Kingdom law. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right, except where it is constrained to act in that way as a result of primary legislation which cannot be interpreted so as to be compatible with Convention rights. Under section 7(1), a person claiming that a public authority has acted unlawfully under section 6(1) may bring proceedings against it in the appropriate court or rely on the Convention right in any legal proceedings.", "24. Under section 4(2), if a court is satisfied that a provision of primary legislation is incompatible with a Convention right, it may make a declaration of that incompatibility. “Court”, in section 4, is defined as meaning the Supreme Court; the Judicial Committee of the Privy Council; the Court Martial Appeal Court; in Scotland, the High Court of Justiciary (sitting otherwise than as a trial court) or the Court of Session; or in England and Wales or Northern Ireland, the High Court or the Court of Appeal. Section 4(6) clarifies that a declaration of incompatibility does not affect the validity, continuing operation or enforcement of the legislative provision in question and is not binding on the parties to the proceedings in which it is made.", "3. Interception warrants", "25. Since 2 October 2000, the interception of communications has been regulated by the Regulation of Investigatory Powers Act 2000 (“ RIPA ”). The explanatory notes which accompany RIPA explain that the main purpose of RIPA is to ensure that investigatory powers are exercised in accordance with human rights.", "26. Section 71 RIPA provides for the adoption of codes of practice by the Secretary of State in relation to the exercise and performance of his powers and duties under the Act. Draft codes of practice must be laid before Parliament and are public documents. They can only enter into force in accordance with an order of the Secretary of State. The Secretary of State can only make such an order if a draft of the order has been laid before Parliament and approved by a resolution of each House.", "27. Under section 72(1) RIPA, a person exercising or performing any power or duty relating to interception of communications must have regard to the relevant provisions of a code of practice. The provisions of a code of practice may, in appropriate circumstances, be taken into account by courts and tribunals under section 72(4) RIPA.", "28. The Interception of Communications Code of Practice (“the Code”) entered into force on 1 July 2002. It is now available on the Home Office website.", "a. The issue of an interception warrant", "29. Interception is permitted in several cases, exhaustively listed in section 1 (5) RIPA. Section 1(5)(b), the relevant provision in the present case, provides that interception is lawful if authorised by an interception warrant. Any unlawful interception is a criminal offence under section 1(1).", "30. Section 2(2) defines “interception” as follows:", "“ For the purposes of this Act, but subject to the following provisions of this section, a person intercepts a communication in the course of its transmission by means of a telecommunication system if, and only if, he–", "(a) so modifies or interferes with the system, or its operation,", "(b) so monitors transmissions made by means of the system, or", "(c) so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system,", "as to make some or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication .”", "31. Section 5 (1) allows the Secretary of State to issue a warrant authorising the interception of the communications described in the warrant. Under section 5(2), no warrant for interception of internal communications (i.e. communications within the United Kingdom ) shall be issued unless the Secretary of State believes :", "“ (a) that the warrant is necessary on grounds falling within subsection (3); and", "(b) that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.", "32. Section 5 (3) provides:", "“ Subject to the following provisions of this section, a warrant is necessary on grounds falling within this subsection if it is necessary –", "(a) in the interests of national security;", "(b) for the purpose of preventing or detecting serious crime; [ or]", "(c) for the purpose of safeguarding the economic well-being of the United Kingdom ...”", "33. The term “national security” is not defined in RIPA. However, it has been clarified by the Interception of Communications Commissioner appointed under RIPA's predecessor ( the Interception of Communications Act 1985 ) who, in his 1986 report, stated that he had adopted the following definition:", "“ [activities] which threaten the safety or well-being of the State, and which are intended to undermine or overthrow Parliamentary democracy by political, industrial or violent means.”", "34. Section 81(2)(b) RIPA defines “serious crime” as crime which satisfies one of the following criteria:", "“( a) that the offence or one of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more;", "(b) that the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose. ”", "35. Section 81(5) provides:", "“ For the purposes of this Act detecting crime shall be taken to include –", "(a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed; and", "(b) the apprehension of the person by whom any crime was committed;", "and any reference in this Act to preventing or detecting serious crime shall be construed accordingly ... ”", "36. Under section 5(4), the Secretary of State must, when assessing whether the requirements in section 5(2) are met, consider whether the information sought to be obtained under the warrant could reasonably be obtained by other means.", "37. Section 5(5) provides that a warrant shall not be considered necessary for the purpose of safeguarding the economic well-being of the United Kingdom unless the information which it is thought necessary to obtain is information relating to the acts or intentions of persons outside the British Islands.", "38. Section 7(2)(a) requires the Secretary of State personally to issue all warrants of the nature at issue in the present case, except in cases of urgency where he must nonetheless personally authorise the issuing of the warrant. Section 6(2) provides an exhaustive list of those who may apply for an interception warrant, including the heads of national intelligence bodies, heads of police forces and the Customs and Excise Commissioners.", "39. Paragraphs 2.4 to 2.5 of the Code provide additional guidance on the application of the proportionality and necessity test in section 5(2):", "“ 2.4 Obtaining a warrant under the Act will only ensure that the interception authorised is a justifiable interference with an individual's rights under Article 8 of the European Convention of Human Rights (the right to privacy) if it is necessary and proportionate for the interception to take place. The Act recognises this by first requiring that the Secretary of State believes that the authorisation is necessary on one or more of the statutory grounds set out in section 5(3) of the Act. This requires him to believe that it is necessary to undertake the interception which is to be authorised for a particular purpose falling within the relevant statutory ground.", "2.5 Then, if the interception is necessary, the Secretary of State must also believe that it is proportionate to what is sought to be achieved by carrying it out. This involves balancing the intrusiveness of the interference, against the need for it in operational terms. Interception of communications will not be proportionate if it is excessive in the circumstances of the case or if the information which is sought could reasonably be obtained by other means. Further, all interception should be carefully managed to meet the objective in question and must not be arbitrary or unfair. ”", "b. The contents of an application and an interception warrant", "40. Section 8 sets out the requirements as to the contents of an interception warrant as regards the identification of the communications to be intercepted :", "“ (1) An interception warrant must name or describe either –", "(a) one person as the interception subject; or", "(b) a single set of premises as the premises in relation to which the interception to which the warrant relates is to take place.", "(2) The provisions of an interception warrant describing communications the interception of which is authorised or required by the warrant must comprise one or more schedules setting out the addresses, numbers, apparatus or other factors, or combination of factors, that are to be used for identifying the communications that may be or are to be intercepted.", "(3) Any factor or combination of factors set out in accordance with subsection (2) must be one that identifies communications which are likely to be or to include –", "(a) communications from, or intended for, the person named or described in the warrant in accordance with subsection (1); or", "(b) communications originating on, or intended for transmission to, the premises so named or described. ”", "41. Paragraph 4.2 of the Code provides:", "“ An application for a warrant is made to the Secretary of State. Interception warrants, when issued, are addressed to the person who submitted the application. This person may then serve a copy upon any person who may be able to provide assistance in giving effect to that warrant. Each application, a copy of which must be retained by the applicant, should contain the following information:", " Background to the operation in question.", " Person or premises to which the application relates (and how the person or premises feature in the operation).", " Description of the communications to be intercepted, details of the communications service provider(s) and an assessment of the feasibility of the interception operation where this is relevant.", " Description of the conduct to be authorised as considered necessary in order to carry out the interception, where appropriate.", " An explanation of why the interception is considered to be necessary under the provisions of section 5(3).", " A consideration of why the conduct to be authorised by the warrant is proportionate to what is sought to be achieved by that conduct.", " A consideration of any unusual degree of collateral intrusion and why that intrusion is justified in the circumstances. In particular, where the communications in question might affect religious, medical or journalistic confidentiality or legal privilege, this must be specified in the application.", " Where an application is urgent, supporting justification should be provided.", " An assurance that all material intercepted will be handled in accordance with the safeguards required by section 15 of the Act. ”", "c. Safeguards", "42. Section 15 RIPA is entitled “Restrictions on use of intercepted material etc.” and provides, insofar as relevant to internal communications, as follows :", "“(1) ... it shall be the duty of the Secretary of State to ensure, in relation to all interception warrants, that such arrangements are in force as he considers necessary for securing –", "(a) that the requirements of subsections (2) and (3) are satisfied in relation to the intercepted material and any related communications data;", "...", "(2) The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each of the following –", "(a) the number of persons to whom any of the material or data is disclosed or otherwise made available,", "(b) the extent to which any of the material or data is disclosed or otherwise made available,", "(c) the extent to which any of the material or data is copied, and", "(d) the number of copies that are made,", "is limited to the minimum that is necessary for the authorised purposes.", "(3) The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each copy made of any of the material or data (if not destroyed earlier) is destroyed as soon as there are no longer any grounds for retaining it as necessary for any of the authorised purposes.", "(4) For the purposes of this section something is necessary for the authorised purposes if, and only if –", "(a) it continues to be, or is likely to become, necessary as mentioned in section 5(3);", "...", "(5) The arrangements for the time being in force under this section for securing that the requirements of subsection (2) are satisfied in relation to the intercepted material or any related communications data must include such arrangements as the Secretary of State considers necessary for securing that every copy of the material or data that is made is stored, for so long as it is retained, in a secure manner ... ”", "43. Section 16 sets out extra safeguards which apply in the case of interception of external communications only.", "44. Section 19 imposes a broad duty on all those involved in interception under RIPA to keep secret, among other matters, “everything in the intercepted material” (section 19(3)(e)). Under section 19(4), disclosure of such material is a criminal offence punishable by up to five years'imprisonment.", "45. Paragraph 6.1 of the Code requires all material intercepted under the authority of a section 8(l) warrant to be handled in accordance with safeguards put in place by the Secretary of State under section 15 of the Act. Details of the safeguards are made available to the Commissioner (see paragraph 57 below) and any breach of the safeguards must be reported to him.", "46. Paragraphs 6.4 to 6.8 of the Code provide further details of the relevant safeguards:", "“ Dissemination of intercepted material", "6.4 The number of persons to whom any of the material is disclosed, and the extent of disclosure, must be limited to the minimum that is necessary for the authorised purposes set out in section 15(4) of the Act. This obligation applies equally to disclosure to additional persons within an agency, and to disclosure outside the agency. It is enforced by prohibiting disclosure to persons who do not hold the required security clearance, and also by the need-to-know principle: intercepted material must not be disclosed to any person unless that person's duties, which must relate to one of the authorised purposes, are such that he needs to know about the material to carry out those duties. In the same way only so much of the material may be disclosed as the recipient needs; for example if a summary of the material will suffice, no more than that should be disclosed.", "6.5 The obligations apply not just to the original interceptor, but also to anyone to whom the material is subsequently disclosed. In some cases this will be achieved by requiring the latter to obtain the originator's permission before disclosing the material further. In others, explicit safeguards are applied to secondary recipients.", "Copying", "6.6 Intercepted material may only be copied to the extent necessary for the authorised purposes set out in section 15(4) of the Act. Copies include not only direct copies of the whole of the material, but also extracts and summaries which identify themselves as the product of an interception, and any record referring to an interception which is a record of the identities of the persons to or by whom the intercepted material was sent. The restrictions are implemented by requiring special treatment of such copies, extracts and summaries that are made by recording their making, distribution and destruction.", "Storage", "6.7 Intercepted material, and all copies, extracts and summaries of it, must be handled and stored securely, so as to minimise the risk of loss or theft. It must be held so as to be inaccessible to persons without the required level of security clearance. This requirement to store intercept product securely applies to all those who are responsible for the handling of this material, including communications service providers ...", "Destruction", "6.8 Intercepted material, and all copies, extracts and summaries which can be identified as the product of an interception, must be securely destroyed as soon as it is no longer needed for any of the authorised purposes. If such material is retained, it should be reviewed at appropriate intervals to confirm that the justification for its retention is still valid under section 15(3) of the Act. ”", "47. Specific guidance is given as to the vetting of those involved in intercept activities in paragraph 6.9 of the Code :", "“ 6.9 Each intercepting agency maintains a distribution list of persons who may have access to intercepted material or need to see any reporting in relation to it. All such persons must be appropriately vetted. Any person no longer needing access to perform his duties should be removed from any such list. Where it is necessary for an officer of one agency to disclose material to another, it is the former's responsibility to ensure that the recipient has the necessary clearance. ”", "48. The Government's policy on security vetting was announced to Parliament by the Prime Minister on 15 December 1994. In his statement, the Prime Minister explained the procedure for security vetting and the kinds of activities which would lead to the exclusion of an individual from participation in work vital to the interests of the State.", "49. The Security Service Act 1989 and the Intelligence Services Act 1994 impose further obligations on the heads of the security and intelligence services to ensure the security of information in their possession.", "d. Duration of an interception warrant", "50. Section 9(1)(a) provides that an interception warrant for internal communications ceases to have effect at the end of the “relevant period” The “relevant period” is defined in section 9(6) as:", "“ (a) in relation to an unrenewed warrant issued in a case [issued] under the hand of a senior official, ... the period ending with the fifth working day following the day of the warrant's issue;", "(b) in relation to a renewed warrant the latest renewal of which was by an instrument endorsed under the hand of the Secretary of State with a statement that the renewal is believed to be necessary on grounds falling within section 5(3)(a) [national security] or (c) [economic well-being], ... the period of six months beginning with the day of the warrant's renewal; and", "(c) in all other cases, ... the period of three months beginning with the day of the warrant's issue or, in the case of a warrant that has been renewed, of its latest renewal. ”", "51. Section 9(1)(b) provides that an interception warrant may be renewed by the Secretary of State at any time before its expiry where he believes that the warrant continues to be necessary on grounds falling within section 5(3).", "52. The Secretary of State is required under Section 9(3) to cancel an interception warrant if he is satisfied that the warrant is no longer necessary on grounds falling within section 5(3).", "53. Section 10(2) imposes an obligation on the Secretary of State to delete any factor set out in a schedule to an interception warrant which he considers is no longer relevant for identifying communications which, in the case of that warrant, are likely to be or to include communications from, or intended for, the interception subject.", "54. Paragraph 4.13 of the Code provides:", "“The Secretary of State may renew a warrant at any point before its expiry date. Applications for renewals must be made to the Secretary of State and should contain an update of the matters outlined in paragraph 4.2 above. In particular, the applicant should give an assessment of the value of interception to the operation to date and explain why he considers that interception continues to be necessary for one or more of the purposes in section 5(3).”", "55. Paragraph 4.16 of the Code provides:", "“ The Secretary of State is under a duty to cancel an interception warrant if, at any time before its expiry date, he is satisfied that the warrant is no longer necessary on grounds falling within section 5(3) of the Act. Intercepting agencies will therefore need to keep their warrants under continuous review. In practice, cancellation instruments will be signed by a senior official on his behalf. ”", "e. Duty to keep records", "56. Paragraph 4.18 of the Code imposes record-keeping obligations on intercepting agencies and provides:", "“ The oversight regime allows the Interception of Communications Commissioner to inspect the warrant application upon which the Secretary of State based his decision, and the applicant may be required to justify the content. Each intercepting agency should keep the following to be made available for scrutiny by the Commissioner as he may require:", " all applications made for warrants complying with section 8(l) and applications made for the renewal of such warrants;", " all warrants, and renewals and copies of schedule modifications (if any);", " where any application is refused, the grounds for refusal as given by the Secretary of State;", " the dates on which interception is started and stopped. ”", "4. The Commissioner", "a. Appointment and functions", "57. Section 57 RIPA provides that the Prime Minister shall appoint an Interception of Communications Commissioner (“the Commissioner”). He must be a person who holds or has held high judicial office. The Commissioner is appointed for a three-year, renewable term. To date, there have been two Commissioners appointed under RIPA. Both are former judges of the Court of Appeal.", "58. The Commissioner's functions include to keep under review the exercise and performance by the Secretary of State of powers and duties in relation to interception conferred or imposed on him by RIPA; the exercise and performance of powers and duties in relation to interception by the persons on whom such powers or duties are conferred or imposed; and the adequacy of the arrangements by virtue of which the duty which is imposed on the Secretary of State by section 15 (safeguards – see paragraph 42 above ) is sought to be discharged.", "59. Section 58 RIPA places a duty on those involved in the authorisation or execution of interception warrants to disclose to the Commissioner all documents and information which he requires in order to carry out his functions. As noted above (see paragraph 56 ), the Code requires intercepting agencies to keep accurate and comprehensive records for this purpose.", "60. In his 2005-2006 report, the Commissioner described his inspections as follows:", "“12. In accordance with [my] duties I have continued my practice of making twice yearly visits to ... the intercepting agencies and the departments of the Secretaries of State/Ministers which issue the warrants. Prior to each visit, I obtain a complete list of warrants issued or renewed or cancelled since my previous visit. I then select, largely at random, a sample of warrants for inspection. In the course of my visit I satisfy myself that those warrants fully meet the requirements of RIPA, that proper procedures have been followed and that the relevant safeguards and Codes of Practice have been followed. During each visit I review each of the files and the supporting documents and, when necessary, discuss the cases with the officers concerned. I can view the product of interception. It is of first importance to ensure that the facts justified the use of interception in each case and that those concerned with interception fully understand the safeguards and the Codes of Practice.", "13. I continue to be impressed by the quality, dedication and enthusiasm of the personnel carrying out this work on behalf of the Government and the people of the United Kingdom. They have a detailed understanding of the legislation and are always anxious to ensure that they comply both with the legislation and the appropriate safeguards ... ”", "61. The Commissioner is required to report to the Prime Minister if he finds that there has been a violation of the provisions of RIPA or if he considers that the safeguards under section 15 have proved inadequate ( sections 58(2) and (3) RIPA ). The Commissioner must also make an annual report to the Prime Minister regarding the exercise of his functions (section 58(4)). Under section 58(6), the Prime Minister must lay the annual report of the Commissioner before Parliament. Finally, the Commissioner is required to assist the IPT with any request for information or advice it may make (section 57(3) and paragraph 78 below) ).", "b. Relevant extracts of reports", "62. In his 2000 report, the Commissioner noted, as regards the discharge of their duties by the Secretaries of State:", "“12. ... I have been impressed with the care that they take with their warrantry work, which is very time consuming, to ensure that warrants are issued only in appropriate cases and, in particular, in ensuring that the conduct authorised is proportionate to what is sought to be achieved by the intercepts.”", "63. At paragraph 15, on the question of safeguards, he said:", "“ ... my advice and approval were sought and given in respect of the safeguard documents either before or shortly after 2 October 2000. The Home Secretary also sought my advice in relation to them and they were approved by him ... ”", "64. As to the need for secret surveillance powers, the Commissioner commented:", "“45. The interception of communications is, as my predecessors have expressed in their Report, an invaluable weapon for the purpose set out in section 5(3) of RIPA and, in particular, in the battle against serious crime ...”", "65. In his report for 2001, the Commissioner noted:", "“ 10. Many members of the public are suspicious about the interception of communications, and some believe that their own conversations are subject to unlawful interception by the security, intelligence or law enforcement agencies ... In my oversight work I am conscious of these concerns. However, I am as satisfied as I can be that the concerns are, in fact, unfounded. Interception of an individual's communications can take place only after a Secretary of State has granted a warrant and the warrant can be granted on strictly limited grounds set out in Section 5 of RIPA, essentially the interests of national security and the prevention or detection of serious crime. Of course, it would theoretically be possible to circumvent this procedure, but there are in place extensive safeguards to ensure that this cannot happen, and it is an important part of my work to ensure that these are in place, and that they are observed. Furthermore, any attempt to get round the procedures which provide for legal interception would, by reason of the safeguards, involve a major conspiracy within the agency concerned which I believe would, for practical purposes, be impossible. I am as satisfied as it is possible to be that deliberate unlawful interception of communications of the citizen does not take place ... ”", "66. He said of the section 15 safeguards :", "“ 31. In addressing the safeguards contained within section 15 of RIPA, GCHQ developed a new set of internal compliance documentation for staff, together with an extensive training programme that covered staff responsibilities under both RIPA and the Human Rights Act. This compliance documentation was submitted to the Foreign Secretary who was satisfied that it described and governed the arrangements required under section 15. I have also been told it also constituted the written record of the arrangements required to be put in place by the Director, GCHQ, under section 4(2)(a) of the Intelligence Services Act 1994 (to ensure that no information is obtained or disclosed by GCHQ except so far as is necessary for its statutory functions). In discharging my functions under section 57(1)(d), I examined the documentation and the processes which underpin it and satisfied myself that adequate arrangements existed for the discharge of the Foreign Secretary's duties under section 15 of RIPA. Of course, GCHQ recognises that its compliance processes must evolve over time, particularly as they become more familiar with the intricacies of the new legislation and develop new working practices, and that the process of staff education remains a continuing one. To this end, GCHQ has developed further training programmes and is issuing revised compliance documentation as part of the ongoing process (see also ... paragraph 56 under Safeguards).", "32. In advance of the coming into force of RIPA, GCHQ approached me as to the warrants it would seek after that date and provided a detailed analysis as to how those warrants would be structured – this was helpful as it gave me an insight into how GCHQ saw the workings of RIPA/Human Rights Act and permitted me to comment in advance. Since the commencement of RIPA, in reviewing warrants I have looked carefully at the factors to be considered by the Secretary of State when determining whether to issue an interception warrant, and especially the new requirement to consider'proportionality'under section [ 5(2)(b) ] of RIPA. ”", "67. Again, he commented on the diligence of the authorities in carrying out their duties under the Act:", "“56. Sections 15 and 16 of RIPA lay a duty on the Secretary of State to ensure that arrangements are in force as safeguards in relation to dissemination, disclosure, copying, storage, and destruction etc., of intercepted material. These sections require careful and detailed safeguards to be drafted by each of the agencies referred to earlier in this Report and for those safeguards to be approved by the Secretary of State. This had been done. I have been impressed by the care with which these documents have been drawn up, reviewed and updated in the light of technical and administrative developments. Those involved in the interception process are aware of the invasive nature of this technique, and care is taken to ensure that intrusions of privacy are kept to the minimum. There is another incentive to agencies to ensure that these documents remain effective in that the value of interception would be greatly diminished as a covert intelligence tool should its existence and methodology become too widely known. The sections 15 and 16 requirements are very important. I am satisfied that the agencies are operating effectively within their safeguards. ”", "68. The Commissioner's 2002 report noted:", "“18. ... As I mentioned in my last Report I have been impressed by the care with which [the safeguard] documents have been drawn up. My advice and approval was sought for the documents and I am approached to agree amendments to the safeguards when they are updated in light of technical and administrative developments .”", "69. This was repeated in paragraph 16 of his 2004 report.", "70. In his 2005-2006 report, the Commissioner explained his role as follows:", "“7. ... essentially I see the role of Commissioner as encompassing these primary headings:", "(a) To protect people in the United Kingdom from any unlawful intrusion of their privacy. This is provided for by Article 8 of the European Convention on Human Rights. I must be diligent to ensure that this does not happen, and alert to ensure that there are systems in place so that this does not and cannot happen. Over the long period that I have held my present post, I have found no evidence whatsoever of any desire within the Intelligence or the Law Enforcement Agencies in this field to act wrongfully or unlawfully. On the contrary, I have found a palpable desire on the part of all these Agencies to ensure that they do act completely within the four walls of the law. To this end, they welcome the oversight of the Commissioner and over the years have frequently sought my advice on issues that have arisen, and they have invariably accepted it. In any event, I believe that the legislation together with the safeguards and Codes of Practice that are in place make it technically virtually impossible to deliberately intercept a citizen's communications unlawfully with intent to avoid legal requirements.", "(b) To assist the Agencies to do the work entrusted to them and, bearing in mind the number of organisations that I am now required to oversee, this occurs quite frequently. My work is, of course, limited to the legal as opposed to the operational aspects of their work. They take great care with their work and I have been impressed by its quality.", "(c) To ensure that proper safeguards and Codes of Practice are in place to protect the public and the Agencies themselves. These have to be approved by the Secretaries of State. But every Secretary of State with whom I have worked has required to be informed as to whether the Commissioner has approved them before he or she is willing to do so.", "(d) To advise Ministers, and Government Departments, in relation to issues arising on the interception of communications, the acquisition and disclosure of communications data, to approve the safeguards documents and the Codes of Practice. ”", "71. The Commissioner said of the Secretaries of State whom he had met in the previous year:", "“ 14. It is clear to me that each of them gives a substantial amount of time and takes considerable care to satisfy himself or herself that warrants are necessary for the authorised purposes, and that what is proposed is proportionate. If the Secretary of State wishes to have further information in order to be satisfied that he or she should grant the warrant then it is requested and given. Outright and final refusal of an application is comparatively rare, because the requesting agencies and the senior officials in the Secretary of State's Department scrutinise the applications with care before they are submitted for approval. However, the Secretary of State may refuse to grant the warrant if he or she considers, for example, that the strict requirements of necessity or proportionality are not met, and the agencies are well aware that the Secretary of State does not act as a'rubber stamp'.”", "72. In his 2007 report, The Commissioner commented on the importance of interception powers in tackling terrorism and serious crime:", "“2.9 I continue to be impressed as to how interception has contributed to a number of striking successes during 2007. It has played a key role in numerous operations including, for example, the prevention of murders, tackling large-scale drug importations, evasion of Excise duty, people smuggling, gathering intelligence both within the United Kingdom and overseas on terrorist and various extremist organisations, confiscation of firearms, serious violent crime and terrorism. I have provided fully detailed examples in the Confidential Annex to this Report. I think it is very important that the public is re-assured as to the benefits of this highly intrusive investigative tool particularly in light of the on-going debate about whether or not intercept product should be used as evidence in a court of law.", "...", "7.1 As I said in my first Report last year, the interception of communications is an invaluable weapon for the purposes set out in section 5(3) of RIPA. It has continued to play a vital part in the battle against terrorism and serious crime, and one that would not have been achieved by other means ... ”", "73. As regards errors by the relevant agencies in the application of RIPA's provisions, he noted :", "“2.10 Twenty-four interception errors and breaches have been reported to me during the course of 2007. This is the same number of errors reported in my first Annual Report (which was for a shorter period) and is a significant decrease in the number reported by my predecessor. I consider the number of errors to be too high. By way of example, details of some of these errors are recorded below. It is very important from the point of view of the public that I stress that none of the breaches or errors were deliberate, that all were caused by human error or procedural error or by technical problems and that in every case either no interception took place or, if there was interception, the product was destroyed immediately on discovery of the error. The most common cause of error tends to be the simple transposition of numbers by mistake e.g., 1965 instead of 1956. The examples that I give are typical of the totality and are anonymous so far as the targets are concerned. Full details of all the errors and breaches are set out in the Confidential Annex. ”", "74. According to the statistics in the report, on 31 December 2007, 929 interception warrants issued by the Home Secretary were in force.", "5. The Investigatory Powers Tribunal", "a. The establishment of the IPT, its powers and its procedures", "75. The IPT was established under section 65(1) RIPA to hear allegations by citizens of wrongful interference with their communications as a result of conduct covered by RIPA. Members of the tribunal must hold or have held high judicial office or be a qualified lawyer of at least ten years'standing. Any person may bring a claim before the IPT and, save for vexatious or frivolous applications, the IPT must determine all claims brought before it (sections 67(1), (4) and (5) RIPA).", "76. Section 65(2) provides that the IPT is the only appropriate forum in relation to proceedings for acts incompatible with Convention rights which are proceedings against any of the intelligence services; and complaints by persons who allege to have been subject to the investigatory powers of RIPA. It has jurisdiction to investigate any complaint that a person's communications have been intercepted and, where interception has occurred, to examine the authority for such interception. Sections 67(2) and 67(3)(c) provide that the IPT is to apply the principles applicable by a court on an application for judicial review.", "77. Under section 67(8) RIPA, there is no appeal from a decision of the IPT “ except to such extent as the Secretary of State may by order otherwise provide ”. No order has been passed by the Secretary of State.", "78. Under section 68(2), the IPT has the power to require a relevant Commissioner to provide it with all such assistance (including the Commissioner's opinion as to any issue falling to be determined by the IPT ) as it thinks fit. Section 68(6) and (7) requires those involved in the authorisation and execution of an interception warrant to disclose or provide to the IPT all documents and information it may require.", "79. Section 68(4) deals with reasons for the IPT's decisions and provides that:", "“ Where the Tribunal determine any proceedings, complaint or reference brought before or made to them, they shall give notice to the complainant which (subject to any rules made by virtue of section 69(2)(i)) shall be confined, as the case may be, to either—", "(a) a statement that they have made a determination in his favour; or", "(b) a statement that no determination has been made in his favour.”", "80. The IPT has the power to award compensation and to make such other orders as it thinks fit, including orders quashing or cancelling any section 8(1) warrant and orders requiring the destruction of any records obtained under a section 8(1) warrant (section 67(7) RIPA ). In the event that a claim before the IPT is successful, the IPT is generally required to make a report to the Prime Minister (section 68(5)).", "b. The power to adopt rules of procedure", "81. As to procedure, section 68 (1) provides as follows:", "“ Subject to any rules made under section 69, the Tribunal shall be entitled to determine their own procedure in relation to any proceedings, complaint or reference brought before or made to them. ”", "82. Section 69(1) RIPA provides that the Secretary of State may make rules regulating any matters preliminary or incidental to, or arising out of, the hearing or consideration of any proceedings before it. Under section 69(2), such rules may:", "“ (c) prescribe the form and manner in which proceedings are to be brought before the Tribunal or a complaint or reference is to be made to the Tribunal;", "...", "(f) prescribe the forms of hearing or consideration to be adopted by the Tribunal in relation to particular proceedings, complaints or references ...;", "(g) prescribe the practice and procedure to be followed on, or in connection with, the hearing or consideration of any proceedings, complaint or reference (including, where applicable, the mode and burden of proof and the admissibility of evidence);", "(h) prescribe orders that may be made by the Tribunal under section 67(6) or (7);", "(i) require information about any determination, award, order or other decision made by the Tribunal in relation to any proceedings, complaint or reference to be provided (in addition to any statement under section 68(4)) to the person who brought the proceedings or made the complaint or reference, or to the person representing his interests. ”", "83. Section 69(6) provides that in making the rules the Secretary of State shall have regard to :", "“ (a) the need to secure that matters which are the subject of proceedings, complaints or references brought before or made to the Tribunal are properly heard and considered; and", "(b) the need to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services. ”", "c. The Rules", "84. The Secretary of State has adopted rules to govern the procedure before the IPT in the form of the Investigatory Powers Tribunal Rules 2000 ( “ the Rules”). The Rules cover various aspects of the procedure before the IPT. As regards disclosure of information, Rule 6 provides:", "“ (1) The Tribunal shall carry out their functions in such a way as to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services.", "(2) Without prejudice to this general duty, but subject to paragraphs (3) and (4), the Tribunal may not disclose to the complainant or to any other person:", "(a) the fact that the Tribunal have held, or propose to hold, an oral hearing under rule 9(4);", "(b) any information or document disclosed or provided to the Tribunal in the course of that hearing, or the identity of any witness at that hearing;", "(c) any information or document otherwise disclosed or provided to the Tribunal by any person pursuant to section 68(6) of the Act (or provided voluntarily by a person specified in section 68(7));", "(d) any information or opinion provided to the Tribunal by a Commissioner pursuant to section 68(2) of the Act;", "(e) the fact that any information, document, identity or opinion has been disclosed or provided in the circumstances mentioned in sub-paragraphs (b) to (d).", "(3) The Tribunal may disclose anything described in paragraph (2) with the consent of:", "(a) in the case of sub-paragraph (a), the person required to attend the hearing;", "(b) in the case of sub-paragraphs (b) and (c), the witness in question or the person who disclosed or provided the information or document;", "(c) in the case of sub-paragraph (d), the Commissioner in question and, to the extent that the information or opinion includes information provided to the Commissioner by another person, that other person;", "(d) in the case of sub-paragraph (e), the person whose consent is required under this rule for disclosure of the information, document or opinion in question.", "(4) The Tribunal may also disclose anything described in paragraph (2) as part of the information provided to the complainant under rule 13(2), subject to the restrictions contained in rule 13(4) and (5).", "(5) The Tribunal may not order any person to disclose any information or document which the Tribunal themselves would be prohibited from disclosing by virtue of this rule, had the information or document been disclosed or provided to them by that person.", "(6) The Tribunal may not, without the consent of the complainant, disclose to any person holding office under the Crown (except a Commissioner) or to any other person anything to which paragraph (7) applies.", "(7) This paragraph applies to any information or document disclosed or provided to the Tribunal by or on behalf of the complainant, except for ... statements [as to the complainant's name, address and date of birth and the public authority against which the proceedings are brought] .”", "85. Rule 9 deals with the forms of hearings and consideration of the complaint:", "“ (1) The Tribunal's power to determine their own procedure in relation to section 7 proceedings and complaints shall be subject to this rule.", "(2) The Tribunal shall be under no duty to hold oral hearings, but they may do so in accordance with this rule (and not otherwise).", "(3) The Tribunal may hold, at any stage of their consideration, oral hearings at which the complainant may make representations, give evidence and call witnesses.", "(4) The Tribunal may hold separate oral hearings which:", "(a) the person whose conduct is the subject of the complaint,", "(b) the public authority against which the section 7 proceedings are brought, or", "(c) any other person specified in section 68(7) of the Act,", "may be required to attend and at which that person or authority may make representations, give evidence and call witnesses.", "(5) Within a period notified by the Tribunal for the purpose of this rule, the complainant, person or authority in question must inform the Tribunal of any witnesses he or it intends to call; and no other witnesses may be called without the leave of the Tribunal.", "(6) The Tribunal's proceedings, including any oral hearings, shall be conducted in private. ”", "86. The taking of evidence is addressed in Rule 11:", "“ (1) The Tribunal may receive evidence in any form, and may receive evidence that would not be admissible in a court of law.", "(2) The Tribunal may require a witness to give evidence on oath.", "(3) No person shall be compelled to give evidence at an oral hearing under rule 9(3). ”", "87. Finally, Rule 13 provides guidance on notification to the complainant of the IPT's findings:", "“ (1) In addition to any statement under section 68(4) of the Act, the Tribunal shall provide information to the complainant in accordance with this rule.", "(2) Where they make a determination in favour of the complainant, the Tribunal shall provide him with a summary of that determination including any findings of fact.", "...", "(4) The duty to provide information under this rule is in all cases subject to the general duty imposed on the Tribunal by rule 6(1).", "(5) No information may be provided under this rule whose disclosure would be restricted under rule 6(2) unless the person whose consent would be needed for disclosure under that rule has been given the opportunity to make representations to the Tribunal.”", "d. The practice of the IPT", "88. In its joint ruling on preliminary issues of law (see paragraph 16 above), the IPT clarified a number of aspects of its procedure. The IPT sat, for the first time, in public. As regards the IPT procedures and the importance of the cases before it, the IPT noted:", "“10. The challenge to rule 9(6) [requiring oral hearings to be held in private] and to most of the other rules governing the basic procedures of the Tribunal have made this the most significant case ever to come before the Tribunal. The Tribunal are left in no doubt that their rulings on the legal issues formulated by the parties have potentially important consequences for dealing with and determining these and future proceedings and complaints. Counsel and those instructing them were encouraged to argue all the issues in detail, in writing as well as at the oral hearings held over a period of three days in July and August 2002. At the end of September 2002 the written submissions were completed when the parties provided, at the request of the Tribunal, final comments on how the Rules ought, if permissible and appropriate, to be revised and applied by the Tribunal, in the event of a ruling that one or more of the Rules are incompatible with Convention rights and/or ultra vires. ”", "89. The IPT concluded (at paragraph 12) that:", "“ ... (a) the hearing of the preliminary issues should have been conducted in public, and not in private as stated in rule 9(6); (b) the reasons for the legal rulings should be made public; and (c) in all other respects the Rules are valid and binding on the Tribunal and are compatible with Articles 6, 8 and 10 of the Convention.”", "90. Specifically on the applicability of Article 6 § 1 to the proceedings before it, the IPT found:", "“ 85. The conclusion of the Tribunal is that Article 6 applies to a person's claims under section 65(2)(a) and to his complaints under section 65(2)(b) of RIPA, as each of them involves'the determination of his civil rights'by the Tribunal within the meaning of Article 6(1). ”", "91. After a review of the Court's case-law on the existence of a “civil right”, the IPT explained the reasons for its conclusions:", "“ 95. The Tribunal agree with the Respondents that there is a sense in which the claims and complaints brought by virtue of s 65(2) of RIPA fall within the area of public law. They arise out of the alleged exercise of very wide discretionary, investigatory, state powers by public authorities, such as the intelligence and security agencies and the police. They are concerned with matters of national security, of public order, safety and welfare. The function of the Tribunal is to investigate and review the lawfulness of the exercise of such powers. This is no doubt intended to ensure that the authorities comply with their relevant public law duties, such as by obtaining appropriate warrants and authorisations to carry out interception and surveillance.", "96. The public law element is reinforced by the directions to the Tribunal in sections 67(2) and 67(3)(c) of RIPA to apply to the determinations the same principles as would be applied by a court in judicial review proceedings. Such proceedings are concerned with the procedural and substantive legality of decisions and actions of public authorities.", "97. The fact that activities, such as interception of communications and surveillance, may also impact on the Convention rights of individuals, such as the right to respect for private life and communications in Article 8, does not of itself necessarily mean that the Tribunal make determinations of civil rights ...", "98. Further, the power of the Tribunal to make an award of compensation does not necessarily demonstrate that the Tribunal determine civil rights ...", "99. Applying the approach in the Strasbourg cases that account should be taken of the content of the rights in question and of the effect of the relevant decision on them ..., the Tribunal conclude that the public law or public order aspects of the claims and complaints to the Tribunal do not predominate and are not decisive of the juristic character of the determinations of the Tribunal. Those determinations have a sufficiently decisive impact on the private law rights of individuals and organisations to attract the application of Article 6.", "100. The jurisdiction of the Tribunal is invoked by the initiation of claims and complaints by persons wishing to protect, and to obtain redress for alleged infringements of, their underlying rights of confidentiality and of privacy for person, property and communications. There is a broad measure of protection for such rights in English private law in the torts of trespass to person and property, in the tort of nuisance, in the tort of misfeasance in a public office, in the statutory protection from harassment and in the developing equitable doctrine of breach of confidence ...", "101. Since 2 October 2000 there has been added statutory protection for invasion of Article 8 rights by public authorities. This follows from the duties imposed on public authorities by section 6 and the rights conferred on victims by section 7 of the [Human Rights Act]. The concept of'civil rights and obligations'is a fair and reasonable description of those common law and statutory rights and obligations, which form the legal foundation of a person's right to bring claims and make complaints by virtue of section 65.", "102. The fact that the alleged infringements of those rights is by public authorities in purported discretionary exercise of administrative investigatory powers does not detract from the'civil'nature of the rights and obligations in issue ...", "...", "107. For all practical purposes the Tribunal is also the only forum for the effective investigation and determination of complaints and for granting redress for them where appropriate ...", "108. In brief, viewing the concept of determination of'civil rights'in the round and in the light of the Strasbourg decisions, the Tribunal conclude that RIPA, which puts all interception, surveillance and similar intelligence gathering powers on a statutory footing, confers, as part of that special framework, additional'civil rights'on persons affected by the unlawful exercise of those powers. It does so by establishing a single specialised Tribunal for the judicial determination and redress of grievances arising from the unlawful use of investigatory powers. ”", "92. As to the proper construction of Rule 9 regarding oral hearings, the IPT found:", "“157. The language of rule 9(2) is clear:", "' The Tribunal shall be under no duty to hold oral hearings but may do so in accordance with this rule (and not otherwise).'", "158. Oral hearings are in the discretion of the Tribunal. They do not have to hold them, but they may, if they so wish, do so in accordance with Rule 9.", "159. In the exercise of their discretion the Tribunal'may hold separate oral hearings.'That exercise of discretion, which would be a departure from normal adversarial procedures, is expressly authorised by rule 9(4).", "160. The Tribunal should explain that, contrary to the views apparently held by the Complainants'advisers, the discretion in rule 9(4) neither expressly nor impliedly precludes the Tribunal from exercising their general discretion under rule 9(2) to hold inter partes oral hearings. It is accepted by the Respondents that the Tribunal may, in their discretion, direct joint or collective oral hearings to take place. That discretion was in fact exercised in relation to this very hearing. The exercise of discretion must take into account the relevant provisions of other rules, in particular the Tribunal's general duty under rule 6(1) to prevent the potentially harmful disclosure of sensitive information in the carrying out of their functions. As already explained, this hearing has neither required nor involved the disclosure of any such information or documents emanating from the Complainants, the Respondents or anyone else. The hearing has only been concerned with undiluted legal argument about the procedure of the Tribunal.", "161. The Tribunal have reached the conclusion that the absence from the Rules of an absolute right to either an inter partes oral hearing, or, failing that, to a separate oral hearing in every case is within the rule-making power in section 69(1). It is also compatible with the Convention rights under Article 6, 8 and 10. Oral hearings involving evidence or a consideration of the substantive merits of a claim or complaint run the risk of breaching the [neither confirm nor deny] policy or other aspects of national security and the public interest. It is necessary to provide safeguards against that. The conferring of a discretion on the Tribunal to decide when there should be oral hearings and what form they should take is a proportionate response to the need for safeguards, against which the tribunal, as a judicial body, can balance the Complainants'interests in a fair trial and open justice according to the circumstances of the particular case.”", "93. Regarding Rule 9(6) which stipulates that oral hearings must be held in private, the IPT held:", "“ 163. The language of rule 9(6) is clear and unqualified.", "' The Tribunal's proceedings, including any oral hearings, shall be conducted in private.'", "164. The Tribunal are given no discretion in the matter. Rule 6(2)(a) stiffens the strictness of the rule by providing that the Tribunal may not even disclose to the Complainant or to any other person the fact that the Tribunal have held, or propose to hold, a separate oral hearing under rule 9(4). The fact of an oral hearing is kept private, even from the other party ...", "...", "167. ... the very fact that this rule is of an absolute blanket nature is, in the judgment of the Tribunal in the circumstances, fatal to its validity ... the Tribunal have concluded that the very width of the rule preventing any hearing of the proceedings in public goes beyond what is authorised by section 69 of RIPA.", "...", "171. There is no conceivable ground for requiring legal arguments on pure points of procedural law, arising on the interpretation and validity of the Rules, to be held in private ...", "172. Indeed, purely legal arguments, conducted for the sole purpose of ascertaining what is the law and not involving the risk of disclosure of any sensitive information, should be heard in public. The public, as well as the parties, has a right to know that there is a dispute about the interpretation and validity of the relevant law and what the rival legal contentions are.", "173. The result is that rule 9(6) is ultra vires section 69. It does not bind the Tribunal. The Secretary of State may exercise his discretion under section 69(1) to make fresh rules on the point, but, unless and until he does, the Tribunal may exercise their discretion under section 68(1) to hear the legal arguments in public under rule 9(3), subject to their general and specific duties, such as rule 6(1) in the Rules and in RIPA. It is appropriate to exercise that discretion to direct that the hearing of the preliminary issues shall be treated as if it had taken place under rule 9(3) in public, because such a preliminary hearing of purely legal arguments solely on procedural issues does not pose any risk to the duty of the Tribunal under rule 6(1) or to the maintenance of the [neither confirm nor deny] policy. The transcripts of the hearing should be made available for public consumption. ”", "94. Regarding other departures from the normal rules of adversarial procedure as regards the taking of evidence and disclosure in Rule 6, the IPT concluded:", "“181. ... that these departures from the adversarial model are within the power conferred on the Secretary of State by section 69(1), as limited by section 69(6). A reasonable rule-making body, having regard to the mandatory factors in section 69(6), could properly conclude that these departures were necessary and proportionate for the purposes stated in section 69(6)(b). In the context of the factors set out in that provision and, in particular, the need to maintain the [neither confirm nor deny] policy, the procedures laid down in the Rules provide a'fair trial'within Article 6 for the determination of the civil rights and obligations arising in claims and complaints under section 65 of RIPA.", "182. They are also compatible with Convention rights in Articles 8 and 10, taking account of the exceptions for the public interest and national security in Articles 8(2) and 10(2), in particular the effective operation of the legitimate policy of [neither confirm nor deny] in relation to the use of investigatory powers. The disclosure of information is not an absolute right where there are competing interests, such as national security considerations, and it may be necessary to withhold information for that reason, provided that, as in the kind of cases coming before this Tribunal, it is strictly necessary to do so and the restriction is counterbalanced by judicial procedures which protect the interests of the Complainants ... ”", "95. Finally, as regards the absence of reasons following a decision that the complaint is unsuccessful, the IPT noted:", "“ 190. The Tribunal conclude that, properly interpreted in context on ordinary principles of domestic law, rule 13 and section 68(4) of RIPA do not apply to prevent publication of the reasons for the rulings of the Tribunal on the preliminary issues on matters of procedural law, as they are not a'determination'of the proceedings brought before them or of the complaint made to them within the meaning of those provisions. Those provisions concern decisions of the Tribunal which bring the claim or complaint to an end, either by a determination of the substantive claim or complaint on its merits ...", "191. ... In the circumstances there can be publication of the reasons for legal rulings on preliminary issues, but, so far as determinations are concerned, the Tribunal are satisfied that section 68(4) and rule 13 are valid and binding and that the distinction between information given to the successful complainants and that given to unsuccessful complainants (where the [neither confirm nor deny] policy must be preserved) is necessary and justifiable. ”", "96. In a second ruling on preliminary issues of law in the British - Irish Rights Watch and others case, which involved external communications (i.e. communications between the United Kingdom and abroad), the IPT issued its findings on the complaint in that case. The issue for consideration was identified as:", "“3. ... whether ...'the process of filtering intercepted telephone calls made from the UK to overseas telephones ... breaches Article 8(2) [of the European Convention on Human Rights] because it is not'in accordance with the law'... ”", "97. Given that the challenge in the case related solely to the lawfulness of the filtering process as set out in the RIPA legislation, the IPT issued a public ruling which explained the reasons for its findings in the case. In its ruling, it examined the relevant legislative provisions and concluded that they were sufficiently accessible and foreseeable to be in accordance with the law.", "98. As the applicant's case demonstrates, once general legal issues have been determined, if the IPT is required to consider the specific facts of the case, and in particular whether interception has taken place, any such consideration will take place in private. Rule 6 prevents the applicant participating in this stage of proceedings.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "99. The applicant complained that his communications were being unlawfully intercepted in order to intimidate him and undermine his business activities, in violation of Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "100. He further argued that the regime established under RIPA for authorising interception of internal communications did not comply with the requirements of Article 8 § 2 of the Convention.", "A. Admissibility", "1. The parties'submissions", "a. The Government", "101. The Government argued that the applicant had failed to advance a general challenge to the Convention - compliance of the RIPA provisions on interception of internal communications before the IPT, and that he had accordingly failed to exhaust domestic remedies in respect of this complaint. They pointed out that at the same time as the applicant was pursuing his complaint with the IPT, the British-Irish Rights Watch and others case was also under consideration by the IPT. Pursuant to the arguments of the parties in that case, the IPT issued a general public ruling of the IPT on the compatibility of the RIPA scheme as regards external communications with Article 8 (see paragraphs 96 to 97 above). No such ruling on the subject of internal communications was issued in the applicant's case.", "102. The Government emphasised that the applicant's Grounds of Claim and Complaint alleged interception of the applicant's business calls and a violation of Article 8 on the facts of the applicant's case. The Government noted that the paragraphs of the Grounds of Claim and Complaint relied upon by the applicant in his submissions to this Court to support his allegation that a general complaint was advanced were misleading. It was clear from the description of his complaint and the subsequent paragraphs particularising his claim that the reference to interception was to an alleged interception in his case, and not to interception in general, and that the complaint that the interception was not in accordance with the law related to an alleged breach of the Data Protection Act, and not to any alleged inadequacies of the RIPA regime (see paragraphs 12 and 14 above ).", "103. The Government submitted that Article 35 § 1 had a special significance in the context of secret surveillance, as the IPT was specifically designed to be able to consider and investigate closed materials. It had extensive powers to call for evidence from the intercepting agencies and could request assistance from the Commissioner, who had detailed working knowledge and practice of the section 8(1) warrant regime.", "104. As regards the applicant's specific complaint that his communications had been unlawfully intercepted, the Government contended that the complaint was manifestly ill-founded as the applicant had failed to show that there had been an interference for the purposes of Article 8. In their submission, he had not established a reasonable likelihood, as required by the Court's case-law, that his communications had been intercepted.", "105. The Government accordingly invited the Court to find both the general and the specific complaints under Article 8 inadmissible.", "b. The applicant", "106. The applicant refuted the suggestion that his complaint before the IPT had failed to challenge the Convention-compatibility of the RIPA regime on internal communications and that he had, therefore, failed to exhaust domestic remedies in this regard. He pointed out that one of the express grounds of his complaint to the IPT had been that “the interception and processing ha[d] at no time been in accordance with the law as required by Article 8(2)” (see paragraph 13 above). He argued that his assertion before the IPT was that any warrants issued or renewed under RIPA violated Article 8.", "107. The applicant further disputed that there had been no interference in his case, maintaining that he had established a reasonable likelihood that interception had taken place and that, in any event, the mere existence of RIPA was sufficient to show an interference.", "2. The Court's assessment", "108. As regards the Government's objection that the applicant failed to exhaust domestic remedies, the Court considers that the summary of the applicant's case set out by the IPT in its ruling of 9 January 2004 (see paragraph 17 above) as well as the Grounds of Claim and Complaint themselves (see paragraphs 10 to 15 above) support the Government's contention that the applicant's complaint concerned only the specific allegation that his communications were actually being intercepted. Further, it can be inferred from the fact that the IPT issued a general public ruling on the compliance of the RIPA provisions on external communications with Article 8 in the British-Irish Rights Watch and others case (see paragraphs 96 to 97 above) that, had a similar argument in respect of internal communications been advanced by the applicant, a similar public ruling would have been issued in his case. No such ruling was handed down. The Court therefore concludes that the applicant failed to raise his arguments as regards the overall Convention-compatibility of the RIPA provisions before the IPT.", "109. However, the Court recalls that where the Government claims non-exhaustion they must satisfy the Court that the remedy proposed was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see, inter alia, Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996 ‑ IV; and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II). While the Government rely on the British-Irish Rights Watch and others case to demonstrate that the IPT could have issued a general ruling on compatibility, they do not address in their submissions to the Court what benefit, if any, is gained from such a general ruling. The Court recalls that it is in principle appropriate that the national courts should initially have the opportunity to determine questions of the compatibility of domestic law with the Convention in order that the Court can have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries (see Burden v. the United Kingdom [GC], no. 13378/05, § 42, ECHR 2008 ‑ ...; and A. and Others v. the United Kingdom [GC], no. 3455/05, § 154, ECHR 2009 ‑ ... .). However, it is important to note in this case that the applicant's challenge to the RIPA provisions is a challenge to primary legislation. If the applicant had made a general complaint to the IPT, and if that complaint been upheld, the tribunal did not have the power to annul any of the RIPA provisions or to find any interception arising under RIPA to be unlawful as a result of the incompatibility of the provisions themselves with the Convention (see paragraph 24 above). No submissions have been made to the Court as to whether the IPT is competent to make a declaration of incompatibility under section 4(2) of the Human Rights Act. However, it would appear from the wording of that provision that it is not. In any event, the practice of giving effect to the national courts'declarations of incompatibility by amendment of offending legislation is not yet sufficiently certain as to indicate that section 4 of the Human Rights Act is to be interpreted as imposing a binding obligation giving rise to a remedy which an applicant is required to exhaust (see Burden v. the United Kingdom, cited above, §§ 43 to 44). Accordingly, the Court considers that the applicant was not required to advance his complaint regarding the general compliance of the RIPA regime for internal communications with Article 8 § 2 before the IPT in order to satisfy the requirement under Article 35 § 1 that he exhaust domestic remedies.", "110. The Court takes note of the Government's argument that Article 35 § 1 has a special significance in the context of secret surveillance given the extensive powers of the IPT to investigate complaints before it and to access confidential information. While the extensive powers of the IPT are relevant where the tribunal is examining a specific complaint of interception in an individual case and it is necessary to investigate the factual background, their relevance to a legal complaint regarding the operation of the legislative regime is less clear. In keeping with its obligations under RIPA and the Rules (see paragraphs 83 to 84 above), the IPT is not able to disclose information to an extent, or in a manner, contrary to the public interest or prejudicial to national security or the prevention or detection of serious crime. Accordingly, it is unlikely that any further elucidation of the general operation of the interception regime and applicable safeguards, such as would assist the Court in its consideration of the compliance with the regime with the Convention, would result from a general challenge before the IPT.", "111. As regards the Government's second objection that there has been no interference in the applicant's case, the Court considers that this raises serious questions of fact and of law which cannot be settled at this stage of the examination of the application but require an examination of the merits of the complaint.", "112. In conclusion, the applicant's complaint under Articles 8 cannot be rejected for non-exhaustion of domestic remedies under Article 35 § 1 or as manifestly ill-founded within the meaning of Article 35 § 3. The Court notes, in addition, that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The existence of an “interference”", "a. The parties'submissions", "i. The applicant", "113. The applicant insisted that his communications had been intercepted. He maintained that there were reasonable grounds for believing that he had been subject to interception and submitted that objectively verifiable facts supported the possibility of interception, pointing to his long campaign regarding the alleged miscarriage of justice in his case and the allegation of police impropriety made at his re-trial.", "114. Noting the Government's submission that neither preventing calls from being put through nor hoax calls amounted to interception for the purposes of RIPA, the applicant emphasised that such conduct clearly amounted to an interference for the purposes of Article 8 of the Convention. In the event that RIPA did not apply to such measures, he argued that the Government had failed to indicate the alternative legal regime put in place to prevent such interference with individuals'private lives as required by the positive obligations under Article 8.", "115. Finally, and in any event, relying on Weber and Saravia v. Germany (dec.), no. 54934/00, § 78, ECHR 2006 ‑ XI, the applicant contended that he was not required to demonstrate that the impugned measures had actually been applied to him in order to establish an interference with his private life. He invited the Court to follow its judgment in Liberty and Others v. the United Kingdom, no. 58243/00, §§ 56 to 57, 1 July 2008, and find that the mere existence of a regime for surveillance measures entailed a threat of surveillance for all those to whom the legislation could be applied.", "ii. The Government", "116. The Government accepted that if the applicant's complaint regarding the general Convention-compatibility of the RIPA scheme was admissible, then he could claim to be a victim without having to show that he had actually been the subject of interception, However, they argued that the Court had made it clear that, in a case argued on the basis that the intelligence authorities had in fact been engaging in unlawful surveillance, the principles set out in §§ 34 to 38 of the Court's judgment in Klass and Others v. Germany, 6 September 1978, Series A no. 28 did not apply and, instead, the applicant was required to substantiate his claim with evidence sufficient to satisfy the Court that there was a reasonable likelihood that unlawful interception had occurred (citing Halford v. the United Kingdom, 25 June 1997, § 57, Reports 1997 ‑ III; and Iliya Stefanov v. Bulgaria, no. 65755/01, § 49, 22 May 2008 ). In their view, the applicant had not established a reasonable likelihood of unlawful interception in his case, for four reasons: (i) there was no evidence to support a claim that the applicant's communications were being intercepted; (ii) the Government emphatically denied that any unlawful interception had taken place; (iii) the rejection of the applicant's complaint by the IPT supported this position (see paragraph 20 above); and (iv) the Commissioner's 2001 report also supported this position (see paragraph 65 above).", "117. The Government further argued that complaints regarding calls not being put through or hoax calls did not show that there had been any interception in the applicant's case. They pointed out that, under section 2(2) RIPA, preventing calls from being put through and hoax calls were excluded from the definition of interception (see paragraph 30 above). As such, these activities would not fall within the remit of RIPA. The Government further argued that there was no factual foundation for the applicant's claims that any interception was intended to intimidate him.", "b. The Court's assessment", "118. It is not disputed that mail, telephone and email communications, including those made in the context of business dealings, are covered by the notions of “private life” and “correspondence” in Article 8 § 1.", "119. The Court has consistently held in its case-law that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see, inter alia, Klass and Others, cited above, § 33; N. C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002 ‑ X; and Krone Verlag GmbH & Co. KG v. Austria (no. 4), no. 72331/01, § 26, 9 November 2006 ). However, in recognition of the particular features of secret surveillance measures and the importance of ensuring effective control and supervision of them, the Court has permitted general challenges to the relevant legislative regime.", "120. The Court's approach to assessing whether there has been an interference in cases raising a general complaint about secret surveillance measures was set out in its Klass and Others judgment, cited above, §§ 34 to 38 and 4 1:", "“ 34. ... The question arises in the present proceedings whether an individual is to be deprived of the opportunity of lodging an application with the Commission because, owing to the secrecy of the measures objected to, he cannot point to any concrete measure specifically affecting him. In the Court's view, the effectiveness (l'effet utile) of the Convention implies in such circumstances some possibility of having access to the Commission. If this were not so, the efficiency of the Convention's enforcement machinery would be materially weakened. The procedural provisions of the Convention must, in view of the fact that the Convention and its institutions were set up to protect the individual, be applied in a manner which serves to make the system of individual applications efficacious.", "The Court therefore accepts that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him. The relevant conditions are to be determined in each case according to the Convention right or rights alleged to have been infringed, the secret character of the measures objected to, and the connection between the applicant and those measures.", "35. In the light of these considerations, it has now to be ascertained whether, by reason of the particular legislation being challenged, the applicants can claim to be victims ... of a violation of Article 8 ... of the Convention ...", "36. The Court points out that where a State institutes secret surveillance the existence of which remains unknown to the persons being controlled, with the effect that the surveillance remains unchallengeable, Article 8 ... could to a large extent be reduced to a nullity. It is possible in such a situation for an individual to be treated in a manner contrary to Article 8 ..., or even to be deprived of the right granted by that Article ..., without his being aware of it and therefore without being able to obtain a remedy either at the national level or before the Convention institutions.", "...", "The Court finds it unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation. A right of recourse to the Commission for persons potentially affected by secret surveillance is to be derived from Article 25 ..., since otherwise Article 8 ... runs the risk of being nullified.", "37. As to the facts of the particular case, the Court observes that the contested legislation institutes a system of surveillance under which all persons in the Federal Republic of Germany can potentially have their mail, post and telecommunications monitored, without their ever knowing this unless there has been either some indiscretion or subsequent notification in the circumstances laid down in the Federal Constitutional Court's judgment ... To that extent, the disputed legislation directly affects all users or potential users of the postal and telecommunication services in the Federal Republic of Germany. Furthermore, as the Delegates rightly pointed out, this menace of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8 ...", "...", "38. Having regard to the specific circumstances of the present case, the Court concludes that each of the applicants is entitled to'(claim) to be the victim of a violation'of the Convention, even though he is not able to allege in support of his application that he has been subject to a concrete measure of surveillance ...", "...", "41. The first matter to be decided is whether and, if so, in what respect the contested legislation, in permitting the above-mentioned measures of surveillance, constitutes an interference with the exercise of the right guaranteed to the applicants under Article 8 para. 1 ....", "...", "In its report, the Commission expressed the opinion that the secret surveillance provided for under the German legislation amounted to an interference with the exercise of the right set forth in Article 8 para. 1 .... Neither before the Commission nor before the Court did the Government contest this issue. Clearly, any of the permitted surveillance measures, once applied to a given individual, would result in an interference by a public authority with the exercise of that individual's right to respect for his private and family life and his correspondence. Furthermore, in the mere existence of the legislation itself there is involved, for all those to whom the legislation could be applied, a menace of surveillance; this menace necessarily strikes at freedom of communication between users of the postal and telecommunication services and thereby constitutes an'interference by a public authority'with the exercise of the applicants'right to respect for private and family life and for correspondence. ”", "121. Subsequently, in Malone v. the United Kingdom, 2 August 1984, § 64, Series A no. 82, the Court noted:", "“ Despite the applicant's allegations, the Government have consistently declined to disclose to what extent, if at all, his telephone calls and mail have been intercepted otherwise on behalf of the police ... They did, however, concede that, as a suspected receiver of stolen goods, he was a member of a class of persons against whom measures of postal and telephone interception were liable to be employed. As the Commission pointed out in its report ..., the existence in England and Wales of laws and practices which permit and establish a system for effecting secret surveillance of communications amounted in itself to an'interference ... with the exercise'of the applicant's rights under Article 8 ..., apart from any measures actually taken against him (see the above-mentioned Klass and Others judgment, ibid.). This being so, the Court, like the Commission ..., does not consider it necessary to inquire into the applicant's further claims that both his mail and his telephone calls were intercepted for a number of years. ”", "122. Following Klass and Others and Malone, the former Commission, in a number of cases against the United Kingdom in which the applicants alleged actual interception of their communications, emphasised that the test in Klass and Others could not be interpreted so broadly as to encompass every person in the United Kingdom who feared that the security services may have conducted surveillance of him. Accordingly, the Commission required applicants to demonstrate that there was a “reasonable likelihood” that the measures had been applied to them (see, for example, Esbester v. the United Kingdom, no. 18601/91, Commission decision of 2 April 1993; Redgrave v. the United Kingdom, no. 202711/92, Commission decision of 1 September 1993; and Matthews v. the United Kingdom, no. 28576/95, Commission decision of 16 October 1996 ).", "123. In cases concerning general complaints about legislation and practice permitting secret surveillance measures, the Court has reiterated the Klass and Others approach on a number of occasions (see, inter alia, Weber and Saravia, cited above, § 78; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, § § 58 to 60, 28 June 2007; Iliya Stefanov, cited above, § 49; Liberty and Others, cited above, §§ 56 to 57; and Iordachi and Others v. Moldova, no. 25198/02, § § 30 to 35, 10 February 2009 ). Where actual interception was alleged, the Court has held that in order for there to be an interference, it has to be satisfied that there was a reasonable likelihood that surveillance measures were applied to the applicant (see Halford, cited above, §§ 56 to 57). The Court will make its assessment in light of all the circumstances of the case and will not limit its review to the existence of direct proof that surveillance has taken place given that such proof is generally difficult or impossible to obtain (see Iliya Stefanov, cited above, § 50).", "124. Sight should not be lost of the special reasons justifying the Court's departure, in cases concerning secret measures, from its general approach which denies individuals the right to challenge a law in abstracto. The principal reason was to ensure that the secrecy of such measures did not result in the measures being effectively unchallengeable and outside the supervision of the national judicial authorities and the Court (see Klass and Others, cited above, §§ 34 and 36). In order to assess, in a particular case, whether an individual can claim an interference as a result of the mere existence of legislation permitting secret surveillance measures, the Court must have regard to the availability of any remedies at the national level and the risk of secret surveillance measures being applied to him. Where there is no possibility of challenging the alleged application of secret surveillance measures at domestic level, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified. In such cases, even where the actual risk of surveillance is low, there is a greater need for scrutiny by this Court.", "125. The Court observes that the present applicant complained of an interference with his communications both on the basis that, given the circumstances of his particular case, he had established a reasonable likelihood of interception and on the basis of the very existence of measures permitting secret surveillance.", "126. The applicant has alleged that the fact that calls were not put through to him and that he received hoax calls demonstrates a reasonable likelihood that his communications are being intercepted. The Court disagrees that such allegations are sufficient to support the applicant's contention that his communications have been intercepted. Accordingly, it concludes that the applicant has failed to demonstrate a reasonable likelihood that there was actual interception in his case.", "127. Insofar as the applicant complains about the RIPA regime itself, the Court observes, first, that the RIPA provisions allow any individual who alleges interception of his communications to lodge a complaint with an independent tribunal (see paragraph 75 above), a possibility which was taken up by the applicant. The IPT concluded that no unlawful, within the meaning of RIPA, interception had taken place.", "128. As to whether a particular risk of surveillance arises in the applicant's case, the Court notes that under the provisions of RIPA on internal communications, any person within the United Kingdom may have his communications intercepted if interception is deemed necessary on one or more of the grounds listed in section 5(3) (see paragraphs 31 to 32 above). The applicant has alleged that he is at particular risk of having his communications intercepted as a result of his high-profile murder case, in which he made allegations of police impropriety (see paragraph 5 above), and his subsequent campaigning against miscarriages of justice. The Court observes that neither of these reasons would appear to fall within the grounds listed in section 5(3) RIPA. However, in light of the applicant's allegations that any interception is taking place without lawful basis in order to intimidate him (see paragraph 7 above), the Court considers that it cannot be excluded that secret surveillance measures were applied to him or that he was, at the material time, potentially at risk of being subjected to such measures.", "129. In the circumstances, the Court considers that the applicant can complain of an interference with his Article 8 rights. The Government's objection concerning the applicant's lack of victim status is accordingly dismissed.", "2. The justification for the interference", "130. Any interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one of more of the legitimate aims to which paragraph 2 of Article 8 refers and is necessary in a democratic society in order to achieve any such aim.", "a. The parties'submissions", "i. The applicant", "131. The applicant did not dispute that the surveillance of internal communications in the United Kingdom had a basis in domestic law, namely the provisions of RIPA. Nor did he dispute that both the relevant legislation and the Code were publicly available. However, he argued that the RIPA provisions, and in particular sections 5, 8 and 15 on the issuing of warrants and the relevant safeguards, were not in accordance with the law as required by Article 8 § 2 of the Convention as they did not meet the foreseeability requirement set out in the Court's jurisprudence. In particular, he alleged that section 8(1) RIPA, which stipulated the basic contents of an interception warrant, did not indicate with sufficient clarity how decisions as to which individuals were to be put under surveillance were made; that RIPA did not define the categories of persons who could have their telephones tapped; and that it did not clarify the procedures in place to regulate the interception and processing of intercept material. He contended that the safeguards referred to in section 15 RIPA were inadequate as they were subject to unknown “arrangements” considered necessary by the Secretary of State. The other procedural safeguards in place including the possibility of launching proceedings before the IPT, were, in the applicant's view, also inadequate to protect against abuse.", "132. The applicant relied on the Court's judgment in Liberty and Others, cited above, as to the lack of clarity of the relevant provisions of RIPA's predecessor, the Interception of Communications Act 1985, and argued that the changes introduced to the surveillance regime by RIPA were inadequate to address the flaws identified in that case. He concluded that any interference therefore automatically failed to meet the requirement that it must be in accordance with the law and relied in this regard on the conclusions of a report by a surveillance law expert instructed by him, Dr Goold, appended to his submissions. He further highlighted the conclusion of the Court in Liberty and Others, cited above, § 68, that the fact that extracts of the code of practice adopted under section 71 RIPA were in the public domain suggested that it was possible for a State to make public certain details about the operation of a scheme for external surveillance without compromising national security.", "133. The applicant argued that the Court's decisions in Valenzuela Contreras v. Spain, 30 July 1998, Reports of Judgments and Decisions 1998 ‑ V; Huvig v. France, 24 April 1990, Series A no. 176 ‑ B; Kruslin v. France, 24 April 1990, Series A no. 176 ‑ A; Amann v. Switzerland [GC], no. 27798/95, ECHR 2000 ‑ II; Al-Nashif v. Bulgaria, no. 50963/99, 20 June 2002; and Rotaru v. Romania [GC], no. 28341/95, ECHR 2000 ‑ V had expanded on the issue of “ foreseeability ” and indicated a departure from the narrower scope of earlier decisions which tolerated the restrictive extent to which national security had imposed blanket secrecy on the publication of surveillance procedures. This broader approach had been confirmed by the Court's recent ruling in Liberty and Others, cited above. The applicant argued that the RIPA scheme remained “unnecessarily opaque” and that further details about the operation, beyond those currently included in the Code, should be made available in order to comply with the Convention requirements regarding clarity and precision.", "134. As to the safeguards and the arrangements put in place by the Secretary of State under section 15 RIPA, the applicant contended that there was a circularity in the fact that the person responsible for issuing warrants was also responsible for the establishment of the safeguards. He referred to the Court's observation in Liberty and Others, cited above, § 66, that details of the arrangements were neither in the legislation nor otherwise in the public domain. As regards the role of the Commissioner, the applicant argued that, as the Court found in Liberty and Others, cited above, § 67, the existence of the Commissioner did not contribute towards the accessibility and clarity of the arrangements under section 15 RIPA as he was unable to reveal what the arrangements were.", "135. More generally, the applicant alleged that the Government had failed to address properly the safeguards available to prevent abuse of power. He argued that the legislation failed to identify the nature of the offences which could give rise to an interception order, to define persons liable to have their telephones tapped, to set limits on the duration of telephone tapping and to explain the procedure to be followed in examining and storing data obtained, the precautions to be taken in communicating the data and the circumstances in which data could or should be destroyed (citing Weber and Saravia, cited above, § 95).", "136. He argued in particular that in Weber and Saravia, the law under consideration set out the precise offences the prevention and detection of which could give rise to an interception order, which he alleged was not the case with RIPA. He pointed to the opinion of his expert, Dr Goold, that the definition of “serious crime” in section 81(2)(b) RIPA (see paragraph 34 above) was excessively broad and did not refer to any specific offences by name, and Dr Goold's conclusion that it could not be said that the grounds for issuing a section 8(1) warrant, as set out in section 5(3) RIPA, were sufficiently clear so as to enable an individual to predict what sorts of conduct might give rise to secret surveillance. He further considered that there was no information as to how the categories of persons liable to have their telephones tapped were “strictly controlled”, as the Government suggested (see paragraph 142 below).", "ii. The Government", "137. The Government submitted that any interference which may have arisen in the present case satisfied the requirements of Article 8 § 2. The Government emphasised the duty of democratic governments to uphold the criminal law and protect citizens from terrorist threats and organised crime. In order to discharge this duty, the power to intercept the communications of specific targets was necessary. They pointed to the Commissioner's consistent conclusions that the interception powers under RIPA were an invaluable weapon for the protection of national security and the fight against organised crime ( see paragraphs 64 and 72 above). Further, in order for interception to yield useful intelligence, the fact of the interception, as well as the methods by which it could be effected, had to be kept secret. If possible targets were able to gain insight into sensitive interception techniques and capabilities, then they would be able to take steps to undermine the usefulness of any intelligence gathered against them. The Government explained that they had had experience of information about surveillance techniques being put in the public domain, which had led directly to the loss of important sources of intelligence. They insisted that their policy of “neither confirm nor deny” was important to ensure the overall effectiveness of surveillance operations.", "138. Generally, regarding the applicant's reliance on the Court's judgment in Liberty and Others, cited above, the Government emphasised that that case concerned the Interception of Communications Act 1985, and not RIPA. Accordingly, they argued, the Court had not given a view as to whether it considered that the provisions of RIPA satisfied the requirements of Article 8. In finding a violation of Article 8 in Liberty and Others as a result of the failure of the Government to provide any public indication of the procedure for selecting for examination, sharing, storing and destroying intercepted data, the Court referred specifically at § 68 of its judgment to the fact that under RIPA, the Government had published a code of practice giving details about the operation of the scheme. In the Government's view, the publication of the Code was a feature by which the RIPA scheme could be distinguished from its predecessor in a significant and relevant respect. They also contrasted the finding of the Court in Liberty and Others, § 66, as regards the former arrangements regarding safeguards under section 6 Interception of Communications Act with the section 15 RIPA arrangements and the relevant provisions of the Code.", "139. On the question whether any interference was in accordance with the law, the Government considered, first, that the statutory provisions of RIPA provided a sufficient basis in domestic law for any interference. They noted that the applicant did not appear to dispute this. As to whether the law was accessible, the Government pointed out that both RIPA and the Code were public accessible. They concluded that the accessibility requirement was satisfied, again noting the absence of any dispute on the matter from the applicant.", "140. Regarding foreseeability, the Government highlighted at the outset the special context of secret surveillance. Referring to, inter alia, Weber and Saravia, cited above, § 93, the Government emphasised that foreseeability could not mean that an individual should be able to foresee when the authorities were likely to intercept his communications so that he could adapt his conduct accordingly. However, they agreed that there needed to be clear, detailed rules on interception, as outlined in § 95 of the Court's judgment in Weber and Saravia to guard against the risk of arbitrary exercise of secret surveillance powers. The Court had recently clarified in Liberty and Others, cited above, §§ 67 to 69, that not every provision regulating secret surveillance had to be set out in primary legislation. The test was whether there was a sufficient indication of the safeguards in a form accessible to the public in order to avoid abuses of power (citing Weber and Saravia, § 95). The Government accordingly contended that account should be taken of all relevant circumstances, including the nature, scope and duration of possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the remedies provided by national law (citing Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, cited above, § 77). They also argued that the Court should consider any evidence as to the actual operation of the warrant system and whether the system appeared to be working properly or was in fact subject to abuse ( referring to Association for European Integration and Human Rights and Ekimdzhiev, §§ 92 to 93).", "141. Addressing each of the individual safeguards set out in Weber and Saravia in turn, the Government contended, first, as regards the nature of offences which could give rise to an interception order, that section 5(3) RIPA, supplemented by the Code and the relevant definitions provided in the Act, was sufficiently clear and precise in setting out the grounds on which a section 8(1) warrant could be issued. As to the applicant's particular complaint that the term “national security” lacked clarity, the Government emphasised that the term was not criticised by the Court in Liberty and Others when it was considered in the context of RIPA's predecessor, a fact which was unsurprising given that the term was a frequently-used legislative concept in the legal systems of many Contracting States and appeared in Article 8 § 2 of the Convention itself. The Government invited the Court to follow the Commission in Christie v. the United Kingdom, no. 21482/93, Commission decision of 27 June 1994, in finding that the term “national security” was sufficiently foreseeable for the purposes of Article 8, noting that the applicant had cited no authority to the contrary. The Government also contested the applicant's complaint that “serious crime” was not sufficiently specific and that RIPA failed to clarify the exact offences for the prevention of which a section 8(1) warrant could be issued. They pointed out that nothing in Weber and Saravia, cited above, § 27, supported the proposition that the legislative framework had to refer to the relevant offences by name in order to comply with the foreseeability requirement. They concluded that “serious crime”, as defined in the Act, provided an adequate indication of the circumstances in which interception could be authorised.", "142. Second, as regards the categories of persons liable to have their telephones tapped, the Government acknowledged that RIPA allowed any type of communication transmitted over a telecommunications system to be intercepted. However, the categories of persons liable to have their telephones tapped were strictly controlled by RIPA. The factors by reference to which interception was undertaken had to be specifically identified in the schedule to the warrant. Further, a person would only become a subject of interception, and a set of premises would only be named in an interception warrant, if the interception operation was necessary on one or more of the grounds listed in section 5(3) (see paragraphs 31 to 32 above). The Government disputed that the Court's conclusion in Weber and Saravia, cited above, § 97, was at odds with this approach as, in their submission, that judgment merely approved the approach taken in the G10 Act without ruling out other possible methods of satisfying the Article 8 § 2 requirements.", "143. Third, RIPA set out strict limits regarding the duration of any interception activity and the circumstances in which a warrant could be renewed (see paragraphs 50 to 51 above).", "144. Fourth, RIPA, supplemented by the Code, contained detailed provisions on the procedure to be followed for examining, using and storing the data obtained and the precautions to be taken when communicating the data to other parties. Although in principle an intercepting agency could listen to all intercepted material in order to determine whether it contained valuable intelligence, where it contained no such intelligence the material would be swiftly and securely destroyed. Section 15 RIPA provided an exhaustive definition of the “authorised purposes” and, in particular, section 15(4) identified limits on the number of persons to whom intercept material could be disclosed (see paragraph 42 above). These provisions were supplemented by the provisions of chapter 6 of the Code (see paragraphs 45 to 47 above). In particular, paragraph 6.4 of the Code specified that disclosure could only be made to persons with security clearance and paragraph 6.9 provided for distribution lists of vetted persons to be maintained. Disclosure was further limited by the “ need - to - know ” principle, which restricted both those who could gain access to intercept material and the extent of any such access. Paragraph 6.5 of the Code clarified that the obligation not to disclose intercept information applied to any person to whom such information had been disclosed. Any breach of these safeguards was an offence under section 19 RIPA (see paragraph 44 above). The requirement to keep records in respect of the making, distribution and destruction of intercept material also provided an important safeguard. Section 15(3) made it clear that intercept material had to be destroyed as soon as there were no longer grounds for retaining it as “necessary” for any of the exhaustively defined authorised purposes. Where human or technical error had resulted in material being gathered where it should not have been, the intercept material was immediately destroyed. Finally, where intercept material was retained, paragraph 6.8 of the Code required it to be reviewed at appropriate intervals to ensure that the justification for its retention remained valid.", "145. The Government emphasised that information concerning the arrangements put in place under section 15 RIPA had been published in the Code. However, in order to maintain the operational effectiveness of interception techniques, it was not possible to publish full details of the arrangements. In the view of the Government, the publication of any more detail than had already been published would be contrary to national security and prejudicial to the prevention and detection of serious crime. They argued that the decision as to how much information on safeguards could safely be put in the public domain without undermining the interests of national security or prejudicing the prevention and detection of serious crime fell within their margin of appreciation. It was also significant that the full details of the arrangements in place were made available to the Commissioner, who was required to keep them under review. The Government emphasised that the Commissioner's approval was sought and given in respect of the safeguard documents either before or shortly after the entry into force of RIPA (see paragraph 63 above). They further emphasised that the Commissioner had expressed his satisfaction with the section 15 safeguards in every report prepared since 2000. They referred in particular to the Commissioner's 200 2 and 2004 reports (see paragraphs 68 to 69 above).", "146. In conclusion, the Government contended that in light of the detail in the legislation and the applicable code, the RIPA regime satisfied the requirement of lawfulness.", "147. The Government also insisted that any interference pursued a legitimate aim. The Government emphatically denied, in this regard, the applicant's allegation that interception was being used to intimidate him and undermine his business activities. The three relevant objectives set out in section 5(3) RIPA, namely safeguarding national security, preventing or detecting serious crime and safeguarding the economic well-being of the United Kingdom, were all legitimate aims for the purposes of Article 8(2).", "148. As to proportionality, the Government pointed to the fact that the Court had already accepted that secret surveillance could be necessary in a democratic society ( see Klass and Others, cited above, § 48) and argued that the surveillance regime in RIPA was necessary and proportionate. The Government further argued that States enjoyed a fairly wide margin of appreciation when legislating in this field (citing Weber and Saravia, § 106). They reiterated that the protection of national security in particular was a heavy political responsibility affecting the whole population. Decisions in this area accordingly required a democratic legitimacy which could not be provided by the Court. This had been implicitly recognised by the Court in its Klass and Others judgment, cited above, § 49.", "149. The Government accepted that in order to demonstrate respect for Article 8(2), there had to be adequate and effective guarantees against abuse of power. They reiterated that the assessment of whether such guarantees were present had to be made in light of all the circumstances of the case. In respect of the surveillance regime applicable in the United Kingdom, the Government emphasised that any interception without lawful authority was a criminal offence under section 1 RIPA (see paragraph 29 above); that the Secretary of State personally issued and modified warrants (see paragraph 38 above); and that guidance was publicly available in the form of the Code. They further pointed to the additional safeguards available in the form of the section 15 safeguards, the oversight of the Commissioner and the jurisdiction of the IPT. They concluded that the RIPA regime contained adequate and effective guarantees against abuse. The involvement of Secretaries of State in the issuing of an interception warrant provided a real and practical safeguard in the system, as demonstrated by the findings of the Commissioner as to the care and attention they demonstrated in their warrantry work (see paragraphs 62, 67 and 71 above). Further, it was significant that none of the Commissioners'reports referred to any deliberate breach of the RIPA provisions or any unlawful use of interception powers to intimidate a person. Any errors or breaches which had arisen had been the result of technical or human error and had been promptly corrected upon their discovery. As to the jurisdiction of the IPT, the Government emphasised that a challenge could be brought at any time by a person who suspected that his communications were being intercepted. They contrasted this unlimited jurisdiction with the legal regime at issue in Weber and Saravia where judicial oversight was limited to cases where an individual had been notified that measures had been taken against him. The applicant in the present case was able to bring his complaint before two senior judges, who ruled that there was no unlawful interception in his case.", "150. In conclusion, the Government invited the Court to find that there had been no violation of Article 8 in the present case.", "b. The Court's assessment", "i. General principles", "151. The requirement that any interference must be “in accordance with the law” under Article 8 § 2 will only be met where three conditions are satisfied. First, the impugned measure must have some basis in domestic law. Second, the domestic law must be compatible with the rule of law and accessible to the person concerned. Third, the person affected must be able to foresee the consequences of the domestic law for him (see, among many other authorities, Rotaru v. Romania, cited above, § 52; Liberty and Others, cited above, § 59; and Iordachi and Others, cited above, § 37 ).", "152. The Court has held on several occasions that the reference to “foreseeability” in the context of interception of communications cannot be the same as in many other fields (see Malone, cited above, § 67; Leander v. Sweden, 26 March 1987, § 51, Series A no. 116; Association for European Integration, cited above, § 79; and Al-Nashif, cited above, § 121). In its admissibility decision in Weber and Saravia, cited above, §§ 93 to 95, the Court summarised its case-law on the requirement of legal “foreseeability” in this field:", "“93.. .. foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly (see, inter alia, Leander [ v. Sweden, judgment of 26 August 1987, Series A no. 116], p. 23, § 51). However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident (see, inter alia, Malone, cited above, p. 32, § 67; Huvig, cited above, pp. 54-55, § 29; and Rotaru ). It is therefore essential to have clear, detailed rules on interception of telephone conversations, especially as the technology available for use is continually becoming more sophisticated (see Kopp v. Switzerland, judgment of 25 March 1998, Reports 1998-II, pp. 542-43, § 72, and Valenzuela Contreras v. Spain, judgment of 30 July 1998, Reports 1998-V, pp. 1924-25, § 46). The domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see Malone, ibid.; Kopp, cited above, p. 541, § 64; Huvig, cited above, pp. 54-55, § 29; and Valenzuela Contreras, ibid.).", "94. Moreover, since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see, among other authorities, Malone, cited above, pp. 32-33, § 68; Leander, cited above, p. 23, § 51; and Huvig, cited above, pp. 54-55, § 29).", "95. In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in statute law in order to avoid abuses of power: the nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed (see, inter alia, Huvig, cited above, p. 56, § 34; Amann, cited above, § 76; Valenzuela Contreras, cited above, pp. 1924 ‑ 25, § 46; and Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003).”", "153. As to the question whether an interference was “necessary in a democratic society” in pursuit of a legitimate aim, the Court recalls that powers to instruct secret surveillance of citizens are only tolerated under Article 8 to the extent that they are strictly necessary for safeguarding democratic institutions. In practice, this means that there must be adequate and effective guarantees against abuse. The assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law (see Klass and Others, cited above, §§ 49 to 50; and Weber and Saravia, cited above, § 106).", "154. The Court has acknowledged that the Contracting States enjoy a certain margin of appreciation in assessing the existence and extent of such necessity, but this margin is subject to European supervision. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society”. In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 § 2, are not to be exceeded (see Kvasnica v. Slovakia, no. 72094/01, § 80, 9 June 2009 ).", "ii. Application of the general principles to the facts of the case", "155. The Court recalls that it has found there to be an interference under Article 8 § 1 in respect of the applicant's general complaint about the RIPA provisions and not in respect of any actual interception activity allegedly taking place. Accordingly, in its examination of the justification for the interference under Article 8 § 2, the Court is required to examine the proportionality of the RIPA legislation itself and the safeguards built into the system allowing for secret surveillance, rather than the proportionality of any specific measures taken in respect of the applicant. In the circumstances, the lawfulness of the interference is closely related to the question whether the “necessity” test has been complied with in respect of the RIPA regime and it is therefore appropriate for the Court to address jointly the “in accordance with the law” and “necessity” requirements (see Kvasnica, cited above, § 84). Further, the Court considers it clear that the surveillance measures permitted by RIPA pursue the legitimate aims of the protection of national security, the prevention of crime and the protection of the economic well-being of the country. This was not disputed by the parties.", "156. In order to assess whether the RIPA provisions meet the foreseeability requirement, the Court must first examine whether the provisions of the Code can be taken into account insofar as they supplement and further explain the relevant legislative provisions. In this regard, the Court refers to its finding in Silver and Others v. the United Kingdom, 25 March 1983, § § 88 to 89, Series A no. 61 that administrative orders and instructions concerning the scheme for screening prisoners'letters established a practice which had to be followed save in exceptional circumstances and that, as a consequence, although they did not themselves have the force of law, to the extent to which those concerned were made sufficiently aware of their contents they could be taken into account in assessing whether the criterion of foreseeability was satisfied in the application of the Prison Rules.", "157. In the present case, the Court notes, first, that the Code is a public document and is available on the Internet (see paragraphs 26 and 28 above). Prior to its entry into force, it was laid before Parliament and approved by both Houses (see paragraph 26 above). Those exercising duties relating to interception of communications must have regard to its provisions and the provisions of the Code may be taken into account by courts and tribunals (see paragraph 27 above). In light of these considerations, the Court finds that the provisions of the Code can be taken into account in assessing the foreseeability of the RIPA regime.", "158. The Court will therefore examine the RIPA regime with reference to each of the safeguards and the guarantees against abuse outlined in Weber and Saravia (see paragraphs 152 and 153 above) and, where relevant, to its findings in respect of the previous legislation at issue in Liberty and Others, cited above.", "159. As to the nature of the offences, the Court emphasises that the condition of foreseeability does not require States to set out exhaustively by name the specific offences which may give rise to interception. However, sufficient detail should be provided of the nature of the offences in question. In the case of RIPA, section 5 provides that interception can only take place where the Secretary of State believes that it is necessary in the interests of national security, for the purposes of preventing or detecting serious crime or for the purposes of safeguarding the economic well-being of the United Kingdom (see paragraphs 31 to 32 above). The applicant criticises the terms “national security” and “serious crime” as being insufficiently clear. The Court disagrees. It observes that the term “national security” is frequently employed in both national and international legislation and constitutes one of the legitimate aims to which Article 8 § 2 itself refers. The Court has previously emphasised that the requirement of “foreseeability” of the law does not go so far as to compel States to enact legal provisions listing in detail all conduct that may prompt a decision to deport an individual on “ national security ” grounds. By the nature of things, threats to national security may vary in character and may be unanticipated or difficult to define in advance ( Al- Nashif, cited above, § 121). Similar considerations apply to the use of the term in the context of secret surveillance. Further, additional clarification of how the term is to be applied in practice in the United Kingdom has been provided by the Commissioner, who has indicated that it allows surveillance of activities which threaten the safety or well-being of the State and activities which are intended to undermine or overthrow Parliamentary democracy by political, industrial or violent means (see paragraph 33 above). As for “ serious crime”, this is defined in the interpretative provisions of the Act itself and what is meant by “detecting” serious crime is also explained in the Act (see paragraphs 34 to 35 above). The Court is of the view that the reference to serious crime, together with the interpretative clarifications in the Act, gives citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to secret surveillance measures. The Court therefore considers that, having regard to the provisions of RIPA, the nature of the offences which may give rise to an interception order is sufficiently clear (compare and contrast Iordachi and Others, cited above, § 46).", "160. The Court observes that under RIPA, it is possible for the communications of any person in the United Kingdom to be intercepted. However, it should be recalled that, in contrast to the Liberty and Others case which concerned the legislation on interception of communications between the United Kingdom and any other country, the present case concerns internal communications, i.e. communications within the United Kingdom. Further, the legislation must describe the categories of persons who, in practice, may have their communications intercepted. In this respect, the Court observes that there is an overlap between the condition that the categories of persons be set out and the condition that the nature of the offences be clearly defined. The relevant circumstances which can give rise to interception, discussed in the preceding paragraph, give guidance as to the categories of persons who are likely, in practice, to have their communications intercepted. Finally, the Court notes that in internal communications cases, the warrant itself must clearly specify, either by name or by description, one person as the interception subject or a single set of premises as the premises in respect of which the warrant is ordered (see paragraphs 40 to 41 above). Names, addresses, telephone numbers and other relevant information must be specified in the schedule to the warrant. Indiscriminate capturing of vast amounts of communications is not permitted under the internal communications provisions of RIPA (cf. Liberty and Others, cited above, § 64). The Court considers that, in the circumstances, no further clarification in the legislation or the Code of the categories of persons liable to have their communications intercepted can reasonably be required.", "161. In respect of the duration of any telephone tapping, the Act clearly stipulates, first, the period after which an interception warrant will expire and, second, the conditions under which a warrant can be renewed (see paragraph 50 to 51 above). Although a warrant can be renewed indefinitely, the Secretary of State himself must authorise any renewal and, upon such authorisation, must again satisfy himself that the warrant remains necessary on the grounds stipulated in section 5(3) (see paragraph 51 above). In the context of national security and serious crime, the Court observes that the scale of the criminal activities involved is such that their planning often takes some time. Subsequent investigations may also be of some duration, in light of the general complexity of such cases and the numbers of individuals involved. The Court is therefore of the view that the overall duration of any interception measures will depend on the complexity and duration of the investigation in question and, provided that adequate safeguards exist, it is not unreasonable to leave this matter for the discretion of the relevant domestic authorities. The Code explains that the person seeking the renewal must make an application to the Secretary of State providing an update and assessing the value of the interception operation to date. He must specifically address why he considers that the warrant remains necessary on section 5(3) grounds (see paragraph 54 above). Further, under section 9(3) RIPA, the Secretary of State is obliged to cancel a warrant where he is satisfied that the warrant is no longer necessary on section 5(3) grounds (see paragraph 52 above). There is also provision in the Act for specific factors in the schedule to the warrant to be deleted where the Secretary of State considers that they are no longer relevant for identifying communications from or to the interception subject (see paragraph 53 above). The Code advises that the duty on the Secretary of State to cancel warrants which are no longer necessary means, in practice, that intercepting agencies must keep their warrants under continuous review (see paragraph 55 above). The Court concludes that the provisions on duration, renewal and cancellation are sufficiently clear.", "162. As regards the procedure for examining, using and storing the data, the Government indicated in their submissions that, under RIPA, an intercepting agency could, in principle, listen to all intercept material collected (see paragraph 144 above). The Court recalls its conclusion in Liberty and Others, cited above, § 65, that the authorities'discretion to capture and listen to captured material was very wide. However, that case, unlike the present case, involved external communications, in respect of which data were captured indiscriminately. Contrary to the practice under the Interception of Communications Act 1985 concerning external communications, interception warrants for internal communications under RIPA relate to one person or one set of premises only (cf. Liberty and Others, cited above, § 6 4 ), thereby limiting the scope of the authorities'discretion to intercept and listen to private communications. Moreover, any captured data which are not necessary for any of the authorised purposes must be destroyed.", "163. As to the general safeguards which apply to the processing and communication of intercept material, the Court observes that section 15 RIPA imposes a duty on the Secretary of State to ensure that arrangements are in place to secure any data obtained from interception and contains specific provisions on communication of intercept material (see paragraph 42 above). Further details of the arrangements are provided by the Code. In particular, the Code strictly limits the number of persons to whom intercept material can be disclosed, imposing a requirement for the appropriate level of security clearance as well as a requirement to communicate data only where there is a “need to know ”. It further clarifies that only so much of the intercept material as the individual needs to know is to be disclosed and that where a summary of the material would suffice, then only a summary should be disclosed. The Code requires intercept material, as well as copies and summaries of such material, to be handled and stored securely to minimise the risk of threat or loss. In particular, it must be inaccessible to those without the necessary security clearance (see paragraphs 46 to 47 above). A strict procedure for security vetting is in place (see paragraph 48 above). In the circumstances, the Court is satisfied that the provisions on processing and communication of intercept material provide adequate safeguards for the protection of data obtained.", "164. As far as the destruction of intercept material is concerned, section 15(3) RIPA requires that the intercept material and any related communications data, as well as any copies made of the material or data, must be destroyed as soon as there are no longer any grounds for retaining them as necessary on section 5(3) grounds (see paragraph 42 above). The Code stipulates that intercept material must be reviewed at appropriate intervals to confirm that the justification for its retention remains valid (see paragraph 55 above).", "165. The Code also requires intercepting agencies to keep detailed records of interception warrants for which they have applied (see paragraph 56 above), an obligation which the Court considers is particularly important in the context of the powers and duties of the Commissioner and the IPT (see paragraphs 166 to 167 below)", "166. As regards supervision of the RIPA regime, the Court observes that apart from the periodic review of interception warrants and materials by intercepting agencies and, where appropriate, the Secretary of State, the Interception of Communications Commissioner established under RIPA is tasked with overseeing the general functioning of the surveillance regime and the authorisation of interception warrants in specific cases. He has described his role as one of protecting members of the public from unlawful intrusion into their private lives, of assisting the intercepting agencies in their work, of ensuring that proper safeguards are in place to protect the public and of advising the Government and approving the safeguard documents (see paragraph 70 above). The Court notes that the Commissioner is independent of the executive and the legislature and is a person who holds or has held high judicial office (see paragraph 57 above). He reports annually to the Prime Minister and his report is a public document (subject to the non-disclosure of confidential annexes) which is laid before Parliament (see paragraph 61 above). In undertaking his review of surveillance practices, he has access to all relevant documents, including closed materials and all those involved in interception activities have a duty to disclose to him any material he requires (see paragraph 59 above). The obligation on intercepting agencies to keep records ensures that the Commissioner has effective access to details of surveillance activities undertaken. The Court further notes that, in practice, the Commissioner reviews, provides advice on and approves the section 15 arrangements (see paragraphs 59 and 68 above). The Court considers that the Commissioner's role in ensuring that the provisions of RIPA and the Code are observed and applied correctly is of particular value and his biannual review of a random selection of specific cases in which interception has been authorised provides an important control of the activities of the intercepting agencies and of the Secretary of State himself.", "167. The Court recalls that it has previously indicated that in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge (see Klass and Others, cited above, § 56). In the present case, the Court highlights the extensive jurisdiction of the IPT to examine any complaint of unlawful interception. Unlike in many other domestic systems (see, for example, the G 10 Law discussed in the context of Klass and Others and Weber and Saravia, both cited above), any person who suspects that his communications have been or are being intercepted may apply to the IPT (see paragraph 76 above). The jurisdiction of the IPT does not, therefore, depend on notification to the interception subject that there has been an interception of his communications. The Court emphasises that the IPT is an independent and impartial body, which has adopted its own rules of procedure. The members of the tribunal must hold or have held high judicial office or be experienced lawyers (see paragraph 75 above). In undertaking its examination of complaints by individuals, the IPT has access to closed material and has the power to require the Commissioner to provide it with any assistance it thinks fit and the power to order disclosure by those involved in the authorisation and execution of a warrant of all documents it considers relevant (see paragraph 78 above). In the event that the IPT finds in the applicant's favour, it can, inter alia, quash any interception order, require destruction of intercept material and order compensation to be paid (see paragraph 80 above). The publication of the IPT's legal rulings further enhances the level of scrutiny afforded to secret surveillance activities in the United Kingdom (see paragraph 89 above).", "168. Finally, the Court observes that the reports of the Commissioner scrutinise any errors which have occurred in the operation of the legislation. In his 2007 report, the Commissioner commented that none of the breaches or errors identified were deliberate and that, where interception had, as a consequence of human or technical error, unlawfully taken place, any intercept material was destroyed as soon as the error was discovered (see paragraph 73 above). There is therefore no evidence that any deliberate abuse of interception powers is taking place.", "169. In the circumstances, the Court considers that the domestic law on interception of internal communications together with the clarifications brought by the publication of the Code indicate with sufficient clarity the procedures for the authorisation and processing of interception warrants as well as the processing, communicating and destruction of intercept material collected. The Court further observes that there is no evidence of any significant shortcomings in the application and operation of the surveillance regime. On the contrary, the various reports of the Commissioner have highlighted the diligence with which the authorities implement RIPA and correct any technical or human errors which accidentally occur (see paragraphs 62, 67, 71 and 73 above). Having regard to the safeguards against abuse in the procedures as well as the more general safeguards offered by the supervision of the Commissioner and the review of the IPT, the impugned surveillance measures, insofar as they may have been applied to the applicant in the circumstances outlined in the present case, are justified under Article 8 § 2.", "170. There has accordingly been no violation of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "171. The applicant complained of a violation of his right to a fair hearing in respect of the proceedings before the Investigatory Powers Tribunal. He relied on Article 6 of the Convention, which provides insofar as relevant that:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”.", "A. Admissibility", "172. The Government contested the applicability of Article 6 § 1 to the proceedings in question, arguing that there was no “civil right” in the present case. The Court considers, in light of the parties'submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It therefore concludes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.. It further notes that it is not inadmissible on any other grounds. The complaint must therefore be declared admissible.", "B. Merits", "1. The applicability of Article 6 § 1", "a. The parties'submissions", "173. The applicant alleged that the proceedings before the IPT involved the determination of his civil rights. This was the conclusion reached by the IPT in its ruling on preliminary issues of law, in which it found that Article 6 § 1 was applicable. The applicant referred to the Court's practice whereby, where national courts had conducted a comprehensive and convincing analysis on the basis of relevant Convention case-law and principles, as in the present case, the Court would need very strong reasons to depart from their conclusions and substitute its own views for those of national courts in interpreting domestic law (citing, inter alia, Masson and Van Zon v. the Netherlands, 28 September 1995, § 49, Series A no. 327 ‑ A; and Roche v. the United Kingdom [GC], no. 32555/96, § 120, ECHR 2005 ‑ X ). He concluded that the IPT was correct to find that Article 6 § 1 was applicable to the proceedings before it.", "174. The Government argued that although the applicant had a right, as a matter of domestic law, to complain to the IPT while the alleged interception was ongoing, the right at issue was not a “civil” right for the purposes of Article 6 § 1 ( relying on the Court's judgments in Klass and Others, cited above, §§ 57 to 58 and 75; and Association for European Integration and Human Rights, cited above, § 106 ). They contended that, insofar as the use of interception powers remains validly secret, the requirements of Article 6 could not apply to the dispute ( referring to Klass and Others, cited above, § 75). In the present case, the applicant's position before the IPT was that the interception was continuing. As a result, the Government considered that the validity of the “ neither confirm nor deny ” stance taken by the authorities could not be impugned. The particular position taken by the Court in interception cases ( including Association for European Integration and Human Rights ) that rights in the field of secret interception powers were not civil rights was, they argued, supported by the Court's general jurisprudence on “civil rights” (citing Ferrazzini v. Italy [GC], no. 44759/98, § § 25, 28 and 30, ECHR 2001 ‑ VII; and Maaouia v. France [GC], no. 39652/98, § 38, ECHR 2000 ‑ X ).", "175. The Government pointed to the Court's consistent case-law that the concept of “civil rights and obligations” was autonomous and could not be interpreted solely by reference to the domestic law of the respondent State and concluded that the fact that RIPA offered the additional safeguard of an application to the IPT at any time could not in itself make Article 6 § 1 apply to such disputes. As regards the applicant's argument that the Court should be slow to interfere with the ruling of the IPT that Article 6 § 1 was applicable, the Government contested that the question whether Article 6 § 1 was applicable was a matter of domestic law. In their view, Ferrazzini, cited above, § 2 4, was support for the proposition that the applicability of Article 6 § 1 was a matter of Convention law and fell within the competence of the Court.", "176. The Government finally noted that the IPT's ruling was issued before the Court's judgment in Association for European Integration and Human Rights, cited above, § 106, in which the Court reached the conclusion that Article 6 § 1 did not apply to such proceedings. It was clear that secret powers of interception which were used solely in the interests of national security or in order to prevent and detect serious crime formed part of the “ hard core of public authority prerogatives”, such that it was inappropriate to classify any related rights and obligations as “civil” in nature ( citing Ferrazzini, § 29; and Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 61, ECHR 2007 ‑ IV ).", "b. The Court's assessment", "177. The Court in Klass and Others, cited above, did not express an opinion on whether Article 6 § 1 applied to proceedings concerning a decision to place a person under surveillance (see § 75 of the Court's judgment ). However, the matter was considered by the former Commission in its prior report ( Klass and Others, no. 5029/71, Report of the Commission, Series B no. 26, pp 35 to 37, §§ 57 to 61). In particular, the Commission noted (§ 58):", "“ ... Supervisory measures of the kind in question are typical acts of State authority in the public interest and carried out jure imperii. They cannot be questioned before any courts in many legal systems. They do not at all directly concern private rights. The Commission concludes therefore, that [Article] 6 does not apply to this kind of State interference on security grounds.”", "178. In its recent ruling on the applicability of Article 6 § 1 to proceedings concerning secret surveillance in Association for European Integration and Human Rights, cited above, § 106, the Court referred generally to the finding of the Commission in its report in the case of Klass and Others that Article 6 § 1 was not applicable in either its civil or criminal limb. In the absence of submissions from the parties on the matter, the Court concluded that nothing in the circumstances of the case before it altered the conclusion in the Klass and Others report and that there was therefore no violation of Article 6 § 1.", "179. The Court notes that, in the present case, the IPT was satisfied that rights of confidentiality and of privacy for person, property and communications enjoyed a broad level of protection in English private law and that the proceedings before the tribunal therefore involved the determination of “civil rights” within the meaning of Article 6 § 1. The Court recalls that, according to its case-law, the concept of “civil rights and obligations” cannot be interpreted solely by reference to the domestic law of the respondent State. It has on several occasions affirmed the principle that this concept is “autonomous”, within the meaning of Article 6 § 1 of the Convention (see Ferrazzini v. Italy [GC], no. 44759/98, § 24, ECHR 2001 ‑ VII; and Roche v. the United Kingdom [GC], no. 32555/96, § 119, ECHR 2005 ‑ X ). However, in the present case, it is unnecessary to reach a conclusion as to whether Article 6 § 1 applies to proceedings of this nature as, for the reasons outlined below, assuming that Article 6 § 1 applies to the proceedings, the Court considers that the IPT's rules of procedure complied with the requirements of Article 6 § 1.", "2. Compliance with Article 6 § 1", "a. The parties'submissions", "180. The applicant recalled that restrictions on court proceedings could only be compatible with Article 6 § 1 where they pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be pursued. Further, limitations could not impair the very essence of fair trial rights and any restrictions had to be sufficiently counterbalanced by the procedures followed by the judicial authorities (citing Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 61, ECHR 2000 ‑ II ). Although the applicant appeared to accept that the restrictions on the procedure before the IPT pursued the legitimate aim of securing that information was not disclosed contrary to the public interest, national security or the detection and prevention of serious crime, he argued that they were not proportionate and impaired the very essence of his right to a fair hearing. In particular, the applicant contended that Rule 6(2) to (5) (restrictions on disclosure and evidence), Rule 9 (secrecy of proceedings) and section 68 RIPA together with Rule 13 (the refusal to provide any reasons to unsuccessful complainants) were contrary to the principle of equality of arms.", "181. The applicant submitted that even where national security was at stake, a domestic court could not infringe the fair hearing principle in a blanket and uncritical manner. He argued that less restrictive measures were available to achieve the aim pursued, including arrangements to protect witnesses'identities, disclosure of documents with redactions approved by the IPT, provision of a summary of particularly sensitive material under the supervision of the IPT and appointment of special advocates to whom disclosure of sensitive material could be made. He referred to a recent report on secret evidence published in June 2009 by the non-governmental organisation, JUSTICE, which called for the strengthening of disclosure procedures and increased transparency in court proceedings.", "182. The Government emphasised that even where Article 6 § 1 applied to a field falling within the traditional sphere of public law, this did not in itself determine how the various guarantees of Article 6 should be applied to such disputes (citing Vilho Eskelinen and Others, cited above, § 64 ). The obligation to read the Convention as a whole meant that the scope of the Article 6 guarantees in such a case should be in harmony with the Court's approach to judicial control under Article 8. The Government argued that the overarching consideration was that an individual could not be notified of interception measures while interception was ongoing or where notification would jeopardise the capabilities or operations of intercepting agencies. They therefore disputed that the less restrictive measures proposed by the applicant were appropriate. They noted that protection of witnesses'identities would not assist in keeping secret whether interception had occurred. Nor would disclosure of redacted documents or summaries of sensitive material. Further, unless they were appointed in every case, the appointment of special advocates would also allow a complainant to draw inferences about whether his communications had been intercepted.", "183. The Government argued that the procedure before the IPT offered as fair a procedure as could be achieved in the context of secret surveillance powers. In particular, a complainant did not have to overcome any evidential burden to apply to the IPT and any legal issues could be determined in a public judgment after an inter partes hearing. Further, the IPT had full powers to obtain any material it considered necessary from relevant bodies and could call upon the assistance of the Commissioner. It could appoint an advocate to assist it at closed hearings. Finally, in the event that the complainant was successful, a reasoned decision would be provided. The Government accordingly disputed that the very essence of the applicant's right to a fair trial had been impaired.", "b. The Court's assessment", "184. The Court reiterates that according to the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, for example, Jespers v. Belgium, no. 8403/78, Commission decision of 15 October 1980, Decisions and Reports (DR) 27, p. 61; Foucher v. France, judgment of 18 March 1997, Reports 1997-II, § 34; and Bulut v. Austria, judgment of 22 February 1996, Reports 1996-II, p. 380-81, § 47). The Court has held nonetheless that, even in proceedings under Article 6 for the determination of guilt on criminal charges, there may be restrictions on the right to a fully adversarial procedure where strictly necessary in the light of a strong countervailing public interest, such as national security, the need to keep secret certain police methods of investigation or the protection of the fundamental rights of another person. There will not be a fair trial, however, unless any difficulties caused to the defendant by a limitation on his rights are sufficiently counterbalanced by the procedures followed by the judicial authorities (see, for example, Doorson v. the Netherlands, judgment of 26 March 1996, § 70, Reports 1996-II; Jasper v. the United Kingdom [GC], no. 27052/95, §§ 51 to 53, ECHR 2000-II; and A. and Others v. the United Kingdom [GC], no. 3455/05, § 205, ECHR 2009 ‑ .... ). A similar approach applies in the context of civil proceedings.", "185. The Court notes that the IPT, in its preliminary ruling of 23 January 2003, considered the applicant's complaints regarding the compliance of the Rules with Article 6 § 1. It found that, with the exception of Rule 9(6) which required all oral hearings to be held in private, the Rules challenged by the applicant were proportionate and necessary, with special regard to the need to preserve the Government's “ neither confirm nor deny policy ” (see paragraphs 92 to 95 above).", "186. At the outset, the Court emphasises that the proceedings related to secret surveillance measures and that there was therefore a need to keep secret sensitive and confidential information. In the Court's view, this consideration justifies restrictions in the IPT proceedings. The question is whether the restrictions, taken as a whole, were disproportionate or impaired the very essence of the applicant's right to a fair trial.", "187. In respect of the rules limiting disclosure, the Court recalls that the entitlement to disclosure of relevant evidence is not an absolute right. The interests of national security or the need to keep secret methods of investigation of crime must be weighed against the general right to adversarial proceedings (see, mutatis mutandis, Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, § 46, ECHR 2004 ‑ X). The Court notes that the prohibition on disclosure set out in Rule 6(2) admits of exceptions, set out in Rules 6(3) and (4). Accordingly, the prohibition is not an absolute one. The Court further observes that documents submitted to the IPT in respect of a specific complaint, as well as details of any witnesses who have provided evidence, are likely to be highly sensitive, particularly when viewed in light of the Government's “neither confirm nor deny” policy. The Court agrees with the Government that, in the circumstances, it was not possible to disclose redacted documents or to appoint special advocates as these measures would not have achieved the aim of preserving the secrecy of whether any interception had taken place. It is also relevant that where the IPT finds in the applicant's favour, it can exercise its discretion to disclose such documents and information under Rule 6(4) (see paragraph 84 above).", "188. As regards limitations on oral and public hearings, the Court recalls, first, that the obligation to hold a hearing is not absolute. There may be proceedings in which an oral hearing is not required and where the courts may fairly and reasonably decide the case on the basis of the parties'submissions and other written materials. The character of the circumstances that may justify dispensing with an oral hearing essentially comes down to the nature of the issues to be decided by the competent national court (see Jussila v. Finland [GC], no. 73053/01, §§ 41 to 42, ECHR 2006 ‑ XIII ). The Court notes that Rule 9(2) provides that oral hearings are within the IPT's discretion and it is clear that there is nothing to prevent the IPT from holding an oral hearing where it considers that such a hearing would assist its examination of the case. As the IPT held in its preliminary ruling, its discretion to hold oral hearings extends to inter partes oral hearings, where such hearings can take place without breaching the IPT's duty to prevent the potentially harmful disclosure of sensitive information (see paragraph 92 above). Finally, in respect of the stipulation in Rule 9(6) that hearings must be held in private (interpreted by the IPT not to apply to cases involving the determination of preliminary issues of law – see paragraph 93 above), the Court notes that it is clear from the terms of Article 6 § 1 itself that national security may justify the exclusion of the public from the proceedings.", "189. Concerning the provision of reasons, the Court emphasises that the extent to which the duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303 ‑ A ). In the context of the IPT's proceedings, the Court considers that the “neither confirm nor deny” policy of the Government could be circumvented if an application to the IPT resulted in a complainant being advised whether interception had taken place. In the circumstances, it is sufficient that an applicant be advised that no determination has been in his favour. The Court further notes in this regard that, in the event that a complaint is successful, the complainant is entitled to have information regarding the findings of fact in his case (see paragraph 87 above).", "190. In light of the above considerations, the Court considers that the restrictions on the procedure before the IPT did not violate the applicant's right to a fair trial. In reaching this conclusion, the Court emphasises the breadth of access to the IPT enjoyed by those complaining about interception within the United Kingdom and the absence of any evidential burden to be overcome in order to lodge an application with the IPT. In order to ensure the efficacy of the secret surveillance regime, and bearing in mind the importance of such measures to the fight against terrorism and serious crime, the Court considers that the restrictions on the applicant's rights in the context of the proceedings before the IPT were both necessary and proportionate and did not impair the very essence of the applicant's Article 6 rights.", "191. Accordingly, assuming that Article 6 § 1 applies to the proceedings in question, there has been no violation of that Article.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "192. The applicant further complained that he had no effective remedy in respect of the alleged violation of Articles 6 § 1 and 8 of the Convention. He relied on Article 13 of the Convention, which provides insofar as relevant as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. Admissibility", "193. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties'submissions", "194. The applicant maintained that he had an “arguable claim” under Articles 6 § 1 and 8, and that the proceedings before the IPT did not afford him a remedy as required by Article 13 of the Convention as it did not comply with the requirements of Article 6 § 1.", "195. The Government contended that there was no violation of Article 13 in the present case. In particular, they argued that the applicant had no arguable claim to be a victim of a violation of Article 6 § 1 or Article 8; that insofar as the applicant's complaints were in essence ones that challenged the relevant legislative scheme, the Article 13 complaint must fail (citing Leander v. Sweden, 26 March 1987, § 77(d), Series A no. 116 ); and that in any event the IPT offered an effective remedy.", "2. The Court's assessment", "196. Having regard to its conclusions in respect of Article 8 and Article 6 § 1 above, the Court considers that the IPT offered to the applicant an effective remedy insofar as his complaint was directed towards the alleged interception of his communications.", "197. In respect of the applicant's general complaint under Article 8, the Court reiterates its case-law to the effect that Article 13 does not require the law to provide an effective remedy where the alleged violation arises from primary legislation (see James and Others v. the United Kingdom, 21 February 1986, § 85, Series A no. 98; and Leander, cited above, § 77(d)).", "198. There has accordingly been no violation of Article 13." ]